We have previously looked at how criminal libel and national security laws are increasingly being used to silence journalists. The third, and lesser known, law that is also used in this way is the criminalisation of publishing “false news”.
What are false news laws?
False news laws were first enacted in England in 1275 and came into use in other European countries around the same time. They were specifically aimed at public order offences and were used as a way to protect landowners from rumour mongering and to prevent the population from rising up in rebellion. These laws were abolished as democracies matured and as people got a voice and a say in how their countries are run. However, what we’ve seen over the last 30 or 40 years is that countries that have inherited these laws from former colonial rulers have started to use them again, not to protect landowners but to protect rulers with authoritarian tendencies against people who criticise.
So how do these laws affect journalists?
These are criminal laws and there are prison sentences attached to them. There is a burden of proof on the journalist because when faced with a charge of false news they have to be able to prove that what they said is true. This leads to self-censorship because journalists get the signal that they are to watch what they say and not report an issue unless they are 100% certain about something, and of course you can never be 100% certain about anything. In countries with a strong culture of free speech the public is used to reading comment pieces that consider different perspectives and to hearing statements along the lines of ‘a source has suggested that…’ In countries that use false news laws to quell comment, opinion, and criticism the public cannot access this type of reporting that enables them to make up their own mind.
Can you give us examples of when false news laws have been used?
The most high profile case recently has been the jailing of the Al Jazeera journalists in Egypt. This made headlines around the world and resulted in the #FreeAJStaff social media campaign. However, it is unusual for false news charges to receive this much global attention as they are usually used to silence local journalists reporting in their national media, not for large household name media. For example in Somaliland the independent newspaper Hubaal was closed down and police occupied its headquarters after its editor and manager were both found guilty of false news charges and imprisoned. In Zambia, when the president had not been seen in public for several weeks and people were speculating about his health, a journalist who suggested the president may be dead was prosecuted for spreading false news.
How does MLDI work on cases relating to false news?
MLDI does help defend some individual cases but our primary approach is to take a principled stance and try to have these laws declared unconstitutional. We currently have a case pending at the European Court of Human Rights where we are urging the Court to declare that so-called false news laws violate the right to freedom of expression. The case in question related to the Armenian Times. Following election unrest and declaration of a state of emergency in 2008, publication of several editions of the newspaper was prohibited on the basis of presidential decrees that prohibited the publishing of, amongst other things, “false or destabilising information”. In our submission to the Court we argue that prohibiting the publication of “false news” should not be permitted under any circumstances, even a state of emergency. Such a ruling would be binding on Armenia and would be a strong signal to other European countries that still have these laws on their books that they must be abolished. We are also preparing constitutional applications in a number of other countries.
Has this approach been successful in the past?
In the last ten years the Supreme Courts of Uganda and Zimbabwe have struck down false news laws as being unconstitutional because they violate the right to freedom of expression. This proves that strong legal advocacy can work and the more judgements like this we get the more journalists will be strengthened in their ability to report the news freely.
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