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Laws against fake news used to silence independent media

Legislation against “fake news” has increased significantly over the last few years, particularly in connection with the pandemic, A new study shows that the majority of “fake news” laws lessen protection of an independent press and risk access to a plurality of fact-based news. Governments can — and have — used this type of legislation to label independent journalism as “fake news” or disinformation, according to a study by independent global policy research centre CNTI (Center for News, Technology & Innovation).

Data from the Committee to Protect Journalists shows that among the 363 reporters jailed around the world in 2022, 39 were imprisoned for “fake news” or disinformation policy violations. 

“Even within well-intended legislative policies, like Germany’s laws which focus on platform moderation of “illegal content” related to hate speech and Holocaust denial, concerns can arise over potential government censorship,” the study says.

“Fake news” policies analysed in the report compeises 31 countries between 2020 and 2023. Eleven of those countries have national elections this year. 

The fake news legislation leaves the important definition of what is fake or false to the designated oversight authority – often the government, the study shows.

Oversight power in the hands of the government — whether explicitly or by default — introduces greater risk of governmental press control”, the study summarises.

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27 of the policies clearly noted penalties for what was defined as fake news. The penalties include imprisonment — ranging from less than one month to up to 20 years. 

The study examines the language in 32 “fake news” policies proposed or enacted from 2020 to 2023 in 31 countries, 11 of which have elections scheduled in 2024.

“Overall, the study reveals that the language in the 32 pieces of legislation does little to protect fact-based news and in many cases creates significant opportunity for government control of the press. The lack of safeguards in this legislation risks curbing press and journalistic freedoms heading into a major election year.” 

Among key findings:

  • “Fake” or “false” news is explicitly defined in less than a quarter (7/32) of this legislation. Omission of these definitions leaves them open to interpretation by whomever has oversight authority which, in these cases, is often the government itself. 
  • In what is very much a double-edged sword, two pieces of legislation examined here explicitly define journalism or what may be considered “real” news, one defines journalists and four define news organisations. While definitions can help protect press freedom, they can also be used as legal grounds to protect media that props up the government and ban media that does not — especially if the court’s application is also dictated by the government. 
  • 14 of the 32 policies clearly designate the government with the authority to decide what is or is not “fake news.” In some cases it is the central government itself and in others it is an entity within the government whose independence from the central government is often unclear. The remaining 18 policies provide either vague or no language about who has that control, ceding it to the government by default. Putting this power in the hands of the government — whether explicitly or by default — introduces greater risk of governmental press and message control.
  • Although press control issues are more prevalent in the countries with autocratic rather than democratic regimes, definitional issues and a lack of clarity are found in legislation from both regime types. Of the 31 countries studied, 19 are autocratic and 11 are democracies as identified by the research organisation V-Dem.
  • Criminal penalties for the publication of “fake news” vary dramatically, from fines to suspension of publications to imprisonment. Among the 27 policies with clearly noted penalties, three-quarters (20 policies) include imprisonment, ranging from less than one month in Lesotho to up to 20 years in Zimbabwe.
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Legislation can be an important part of creating a digital news environment that safeguards both an independent press and the public’s access to fact-based news, but those aiming to develop policy should be aware of these challenges, the study concludes.

 Five key questions that anyone seeking to construct policy to guard against false information in a way that safeguards free media: 

1) whether policy or other non-governmental methods are the best approach for the current situation; 

2) if specific independent oversight is laid out; 

3) whether there are clear adjudication processes; 

4) who the subject — or target — of the policy is;  

5) what future or global implications might emerge?

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