Ensure fairness when coming up with fake news law

Published on: Sunday, March 11, 2018

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By Tan Siok Choo
Recently, US Special Counsel Robert Mueller charged 13 Russian individuals and three entities with crimes relating to interfering with the US presidential election through social media.

These indictments suggest “fake news” peddled by the Russians influenced the outcome of the November 2016 presidential poll.

Concern about the likely impact of “fake news” on political outcomes have prompted legislators in Germany, France and, more recently, Malaysia, to enact laws aimed at curbing this phenomenon.

The key question is: will these anti-fake news laws be effective? Or will legal sanctions be akin to using a hammer to kill a fly?

Although often associated with a foreign leader with hair of indeterminate density and a penchant for tweeting the truth as he sees it, “fake news” also featured during two rounds of the French presidential election on April 23 and May 7 last year. President Emmanuel Macron was falsely alleged to have a secret offshore bank account.

Last month, Macron proposed a law that would make the backers of sponsored content transparent and empower the French government to either scrape “fake news” from the internet or even block websites altogether during political elections, Alberto Alemmano wrote in Politico.

Similarly, in the run-up to the German elections on Sept 24 last year, proponents of “fake news” – alleging a German girl was raped by asylum seekers – hoped to undermine Chancellor Angela Merkel’s open-door policy for refugees and weaken her electoral prospects.

In June last year, Germany passed a law aimed at prohibiting hate speech, public incitement to commit crimes and threats of violence. Social media platforms are now legally required to remove illegal hate speech and other postings within 24 hours after notification and to block offensive content within seven days; failure to do so could result in fines up to €50 million.

Malaysia has now joined this bandwagon. Since a general election must be held before August this year, the proposed law against “fake news” is likely to be enacted soon.

According to newspaper reports, draft legislation is likely to be sent to the Cabinet after the Chinese New Year holiday and could be tabled in Parliament during the March session.

Minister in the Prime Minister’s Department Datuk Seri Azalina Othman Said said the proposed bill could include the definition of false news, the agency responsible for assessing the news and the need to determine whether a comment was made with malicious intent. Azalina’s announcement prompts several questions.

First, how will the new law define “fake news”?

American commentator, Jeffrey Toobin, defines “fake news” as posts on the internet that are meant to look like truth but in fact are politically-motivated lies. This definition raises yet another question: can a journalist’s opinion constitute “fake news”?

Second, who will be in the crosshairs of the new law? Will the law target the initiator or the conveyor of “fake news”? Will the law apply only to social media or will it include newspapers and television?

In Germany, the “fake news” law is aimed at Facebook, Twitter and YouTube, although the BBC says it is likely to be applied to Reddit, Tumblr and Russian social network VK.

Third, given that a single tweet can be sent to thousands, if not millions, of followers in seconds, can the supervisory institution respond to the “fake news” within hours?

Fourth, will the composition of the agency charged with determining what constitutes “fake news” reflect the ethnicity and social-political perspectives of all Malaysians?

Additionally, will opposition members of Parliament play a significant role in determining this agency’s composition and terms of reference?

Fifth, will the “anti-fake news law impose jail terms in addition to fines”?

Although misinformation disseminated through social media is worrying, critics highlight two drawbacks of anti-fake news law in France and Germany – potential for abuse and governments are poorly placed to police the social media.

“Germany learned this the hard way when their new efforts to censor online hate speech ended up censoring a comedian’s satirical Twitter post,” John Bryan wrote in The Observer.

Because young Malaysians rely mainly on social media for information, “fake news” could have a disproportionate impact. Elections Commission data as at September 2017 shows about 42pc of the 14.8 million registered voters are in the 21-39 age bracket.

Writing in Politico, Alberto Alemanno suggests the most effective fighters against “fake news” are the social media websites.

“Facebook is now testing an innovative approach. It now features ‘related articles’ beneath the story in question and invites readers to access additional information, including pieces that have been greenlighted by third party fact checkers …

“New research suggests exposure to alternative viewpoints has a tangible effect on readers,” Alemanno wrote.

Fairness should be the over-arching aim of Malaysia’s anti-fake news law. Stephen Magagnini wrote in The Sacramento Bee: “Objectivity is impossible, but fairness is mandatory.”