What is ‘False News’?

‘False news’ refers to news items that are intentionally and verifiably false, and seek to mislead readers.  In March 2017, the Joint Declaration on Freedom of Expression and “Fake News”, Disinformation and Propaganda (2017 Joint Declaration) was issued by the relevant freedom of expression mandate-holders of the United Nations (UN), the African Commission on Human and Peoples’ Rights (ACHPR), the Organisation for Security and Co-operation in Europe (OSCE), and the Organisation of American States (OAS).(1) The 2017 Joint Declaration noted the growing prevalence of disinformation and propaganda, both online and offline, and the various harms to which they may contribute or be a primary cause.  The quandary remains that the internet, and especially social media platforms, both facilitate the circulation of disinformation and propaganda and also provides a useful tool to enable responses to this.

Importantly, the 2017 Joint Declaration stressed that general prohibitions on the dissemination of information based on vague and ambiguous ideas, such as “false news”, are incompatible with international guarantees of freedom of expression.  However, it went further to state that this did not justify the dissemination of knowingly or recklessly false statements by state actors.  In this regard, the Joint Declaration called on state actors to take care to ensure that they disseminate reliable and trustworthy information, and not to make, sponsor, encourage or further disseminate statements that they know (or reasonably should know) to be false or which demonstrate a reckless disregard for verifiable information.

The 2017 Joint Declaration identified the following standards on disinformation and propaganda:

“Standards on disinformation and propaganda

(a)          General prohibitions on the dissemination of information based on vague and ambiguous ideas, including “false news” or “non-objective information”, are incompatible with international standards for restrictions on freedom of expression, as set out in paragraph 1(a), and should be abolished.

(b)          Criminal defamation laws are unduly restrictive and should be abolished. Civil law rules on liability for false and defamatory statements are legitimate only if defendants are given a full opportunity and fail to prove the truth of those statements and also benefit from other defences, such as fair comment.

(c)          State actors should not make, sponsor, encourage or further disseminate statements which they know or reasonably should know to be false (disinformation) or which demonstrate a reckless disregard for verifiable information (propaganda).

(d)          State actors should, in accordance with their domestic and international legal obligations and their public duties, take care to ensure that they disseminate reliable and trustworthy information, including about matters of public interest, such as the economy, public health, security and the environment.”

False news provisions are legal rules which prohibit and punish the dissemination of false or inaccurate statements.  Such rules have not be put in place in many countries.  However, recently certain governments have introduced new false news prohibitions, a worrying trend that gathered speed following the onset of the COVID-19 pandemic and the imposition of emergency measures, sometimes under the pretext of combatting medical disinformation or panic.  In July 2021, amidst a state of emergency that had been declared in response to the pandemic, the Thai government enacted, pursuant to an emergency decree, Regulation 29, which criminalised the dissemination of texts that may “instigate fear” or are “intended to distort information to mislead understanding of the emergency situation to the extent of affecting the security of state or public order or good morals of the people.”(2) The Regulation was met with alarm by human rights organisations which viewed it as inconsistent with Thailand’s international obligations, including the requirements that restrictions on freedom of expression under the ICCPR be provided by law, necessary and proportionate, and pursue a legitimate aim.(3)

The media company Reporter Production sought an order halting the enforcement of the Regulation pursuant to which the Civil Court granted the application.  In reasons for the order, the Court found Article 1 of the Regulation, prohibiting the dissemination of information that may instigate fear, to be inconsistent with the guarantee of freedom of expression as contained in the Thai Constitution.  The Court further noted the vagueness of the article, expressing concerns about the chilling effect it would have on the media:

Moreover, the phrase “information having a risk of frightening people” as indicated in such Article is of an ambiguous character and opens a possibility to a broad interpretation, thereby rendering the plaintiffs, people and those working in media field unconfident about expressing their opinion and communicating in accordance with the freedom protected by Article 34 Paragraph 1, Article 35 Paragraph 1 of the Constitution. Such Article results in a superfluous and unnecessary deprivation of people’s right and freedom, which makes it, in effect, incompatible with Article 26 Paragraph 1 of the Constitution.(4)

Order in Reporter Production Co., Ltd et al. v. Thailand’s Prime Minister Prayut Chan-o-cha (2021)