‘False news’, Misinformation and Propaganda – South and Southeast Asia

• ‘False news’ refers to news items that are intentionally and verifiably false, and seek to mislead readers. Disinformation is any information that is spread in the knowledge that it is false. Misinformation is false information that is spread but where the person who is responsible for that does not know that it is false.

• While acknowledging the social ills may be occasioned by false news and misinformation, courts and international standards indicate that general provisions which criminalise false news and misinformation violate the right to freedom of expression.

• As a result, strategies to combat dis- and misinformation, need to be more social and educational in their character.  These include media and information literacy (MIL) strategies and campaigns which focus on human rights, media, digital, intercultural, and privacy literacy as a holistic method of mitigating the impact of dis- and misinformation.  These strategies may be complemented by social media verification, fact-checking, and the prioritisation of reliable content and the publication of counter-narratives.

• In limited instances, dis- and misinformation may constitute hate speech, the dissemination of which may be criminal in nature.  However, any litigation relating to expression should be fully considered for unintended consequences and the possibility of impacts which may undermine freedom of expression.

• Propaganda for war is dissimilar to dis- and misinformation in that international law expressly calls for it to be prohibited.

Introduction

The phenomenon (1) of false news and misinformation has increased exponentially in recent times with the advent of the internet and social media platforms.  While manipulating and distorting information is squarely part of the historical record, the weaponisation of information in the 21^st century is occurring on an unprecedented scale, which requires urgent and effective responses.  This module focuses on ‘false news’, misinformation and propaganda, and provides guidance on media and information literacy (MIL) strategies and campaigns(2) which may assist with mitigating dis- and misinformation while ensuring that the right to freedom of expression is not violated.

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).(3) 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.”(4) 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.(5)

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.(6)

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

Misinformation, Disinformation and Mal-information

The Problem Statement

Misinformation is anathema to quality of journalism and the circulation of trustworthy information which complies with professional standards and ethics.(7) However, dis- and misinformation are not new but rather have become increasingly prevalent as they are fuelled by new technologies and rapid online dissemination of communications.  The consequence is that digitally‑fuelled dis- and misinformation, especially in contexts of polarisation, risks eclipsing quality journalism, and the truth.(8)

Increasingly, the strategies to combat dis- and misinformation are more social, educational and technical in their character in order to ensure that the right to freedom of expression is not violated by over-broad legislative provisions which criminalise this sort of speech.  Addressing the dis- and misinformation ecosystem, therefore, requires a critical assessment of the reasons for the dissemination of this sort of content and the establishment of MIL campaigns.(9) In effect, combatting dis- and misinformation, at this stage, falls more within the realm of advocacy and education than it does litigation.  The limited litigation in this space bears testament to this.  However, this is likely to change as digital rights litigators engage in more strategic and test case litigation seeking to mitigate dis- and misinformation while protecting and promoting freedom of expression.

Causes of dis- and misinformation

To understand how to combat dis- and misinformation, it is useful to first understand how it spreads.  With the advent of the information age and the internet, information is spread more rapidly, often with the click of a mouse.(10) Equally, the speed at which information is transmitted and the instant access to information which the internet provides has caused a rush to be the first to publish information, as well as the often thoughtless retransmission or promotion of the statements of others.  This, alongside more insidious practices such as the intentional distribution of disinformation for economic or political gain, has created what the UN Educational, Scientific and Cultural Organisation (UNESCO) refers to as a “perfect storm”.(11)

UNESCO identifies three causes enabling the spread of dis- and misinformation:

• Collapsing traditional business models.  The rapid decline in advertising revenue and the migration of advertising to digital actors means that traditional newsrooms have far less resources. This, in turn, has  led to reduced quality news and less time for “checks and balances”.  It also promotes “click-bait” journalism.(12) As a result, legacy media is bleeding audiences, with media consumers moving to “peer-to-peer” news products offering “on demand-access”.  Importantly, peer-to-peer news has no agreed-upon ethics and standards.

• Digital transformation of newsrooms and storytelling.  As the information age develops, there is a discernible digital transformation in the news industry.  This transformation causes journalists to prepare content for multiple platforms, limiting their ability to properly interrogate facts.  Often, journalists apply a principle of “social-first publishing” whereby their stories are posted directly to social media to meet audience demand in real-time.  This, in turn, promotes click-bait journalism and the pursuit of “virality” as opposed to quality and accuracy.(13)

• The creation of new news ecosystems.  With increasing access to social media platforms, users can curate their own content streams and create their own “trust networks” or “echo chambers” within which inaccurate, false, malicious and propagandistic content can spread.  These new ecosystems allow dis- and misinformation to flourish as users are more likely to share “exciting” or sensationalist stories and are far less likely to properly assess sources or facts.  Importantly, once disseminated, a user who becomes aware that a statement may constitute misinformation is largely unable to “pull back” or correct it.(14)

These causes continue to pose difficulties for newsrooms, journalists, and social media users as the new news ecosystems, in particular, enable malicious practices and actors to flourish.  However, as discussed, there is a fine line between seeking legitimate ways to combat the spread of dis- and misinformation online and violating the right to freedom of expression.

How to combat dis- and misinformation

Effectively combatting dis- and misinformation remains a pressing contemporary issue, with various remedies posited by jurists, academics, and activists.  Notably, Justice Anthony Kennedy of the United States Supreme Court, in his majority decision in United States v Alvarez (16) held: “The remedy for speech that is false is speech that is true.  This is the ordinary course in a free society.  The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight‑out lie, the simple truth.”(17) MIL strategies and campaigns proposed by UNESCO seek to operationalise the position proposed by Justice Kennedy and provide a holistic approach to combating dis- and misinformation, without limiting the right to freedom of expression.

Strategies to Address ‘False News’

Media and Information Literacy (MIL) Strategies and Campaigns

As a point of departure, UNESCO proposes MIL strategies and campaigns as a process which enables the detection and mitigation of dis- and misinformation and a means to combat its spread, particularly online.(18) MIL is an umbrella and inter-related concept which encompasses the following ideas:(19)

• Human rights literacy which relates to the fundamental rights afforded to all persons, including the right to freedom of expression, and the promotion and protection of these fundamental rights.

• News literacy which refers an understanding of the news media, including journalistic standards and ethics.This includes, for example, the ability to understand the “language and conventions of news as a genre and to recognise how these features can be exploited with malicious intent.”

• Advertising literacy which refers to understanding how advertising online works and how profits are driven in the online economy.

• Computer literacy which refers to basic IT usage and understanding the easy manner in which headlines, images, and, increasingly, videos can be manipulated to promote a particular narrative.

• Understanding the “attention economy”, which is one of the causes of dis- and misinformation, based on pressure on journalists and editors to focus on click-bait headlines and misleading imagery to grab the attention of users and, in turn, drive online advertising revenue.

• Privacy and intercultural literacy which relatesto understanding standards on the right to privacy and a broader understanding of how communications interact with induvial identity and social developments.(20)

MIL strategies and campaigns, such as the COVID-19 campaign by the UN detailed below, should underscore the importance of media and information literacy in general but should also include a degree of philosophical understanding.  According to UNESCO, “[MIL strategies and campaigns should assist users] grasp that authentic news does not constitute the full ‘truth’ (which is something only approximated in human interactions with each other and with reality over time).”(21)

Litigation Where Justifiable Limitations Exist

The International Covenant on Civil and Political Rights (ICCPR) provides in article 20 that “propaganda for war shall be prohibited by law” and that “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”

In addition, article 4(a) of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) requires that the dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, must be declared an offence that is punishable by law.

Despite the importance of freedom of expression, not all speech is protected under international law, and some limited types of speech are required to be prohibited by states.  However, there is a need for clear and narrowly circumscribed definitions of what is meant by the term “hate speech”, and objective criteria that can be applied. Over-regulation of hate speech can violate the right to freedom of expression, while under-regulation may lead to discrimination, harassment or violence against minorities and protected groups.

In instances where dis- and misinformation is so egregious that it meets the definitional elements of hate speech, prosecutions may be a useful and important tool in the protection and promotion of fundamental rights, includes the right to equality and dignity.(23) However, such litigation should be fully considered for unintended consequences and the possibility of jurisprudence which may negatively impact freedom of expression.  Depending on the content of the speech and the harm that it causes, the publication of counter-narratives may constitute a useful complementary strategy to litigation.

For more information on this topic, see module 6 of this series.

Fact-checking and Social Media Verification

Alongside MIL strategies and campaigns and prosecuting instances of hate speech, another effective tool to combat dis- and misinformation is fact-checking and social media verification.  According to the Duke Reporters’ Lab, in 2021 there were over 391 fact-checking projects debunking false news and misinformation in more than 100 countries, a sizeable increase from 186 projects in 2016, although the rate of growth has been slowing.(24)

In general, fact-checking and verification processes, which were first introduced by US weekly magazines such as Time in the 1920s,(25) consist of:

• Ex-ante fact-checking and verification. Increasingly and due to shrinking newsroom budgets, ex-ante (or before the event) fact-checking is reserved for more prominent and established newsroom and publications who employ dedicated fact-checkers.(26)

• Ex-post fact-checking, verification and “debunking”. This method of fact-checking is becoming increasingly popular and focuses on checking information published after the fact.  It concentrates “primarily (but not exclusively) on political ads, campaign speeches and political party manifestos” and seeks to make politicians and other public figures accountable for the truthfulness of their statements.(27) Debunking is a subset of fact‑checking and requires a specific set of verification skills, increasingly in relation to user-generated content on social media platforms.

In addition to these tools, various other social media measures can be used. One which has attracted more attention recently is the prioritisation of verifiable content and deprioritisation of false content. Fact-checking is central to strategies to combat dis- and misinformation and has grown exponentially in recent years due to the increasing spread of false news and misinformation, and the need to debunk viral hoaxes.(28) Alongside MIL strategies and campaigns, fact-checking and social media verification is becoming increasingly important in the fight against false news and misinformation.

Propaganda

As detailed above and in module 6 of this series, unlike dis- and misinformation, the spread of propaganda for war is expressly prohibited in international law.(37) In these instances, direct legal remedies such as criminal prosecutions and interdictory or injunctive relief may result.  However, often propaganda does not meet the threshold for such a legal response.  In these instances, MIL strategies and campaigns and fact-checking, coupled with the publication of counter-narratives or counter‑disinformation, can be effective remedies.(38)

Conclusion

The advent of the internet and the proliferation of false news and misinformation occasioned by the increased use of social media platforms is a primary contemporary concern.  It fuels political polarisation and impacts a plethora of fundamental rights, including the right to freedom of expression, equality, and free and fair elections.  However, outside of a narrow band of legitimately proscribable  speech, the remedies to combat dis- and misinformation are, at this stage, largely social and educational.  MIL strategies and campaigns, coupled with fact-checking and the publication of counter-narratives, remain the primary vanguard in the fight for the truth.

• 1. For more on this topic see Media Defence “Training Manual on Digital Rights and Freedom of expression Online: Litigating digital rights and online freedom of expression in East, West and Southern Africa (accessible at: https://www.mediadefence.org/resource-hub/resources/media-defence-training-manual-on-digital-rights-and-freedom-of-expression-online/). For further information see First Draft, ‘Understanding and addressing the disinformation ecosystem’ (2017) (accessible at: https://firstdraftnews.org/wp-content/uploads/2018/03/The-Disinformation-Ecosystem-20180207-v3.pdf?x17007).
• 2. Id at page 70 (accessible at: https://unesdoc.unesco.org/ark:/48223/pf0000265552).
• 3. Accessible at: https://www.osce.org/fom/302796?download=true.
• 4. Joint Statement of Access Now et. al., “Thailand: Immediately repeal emergency regulation that threatens online freedoms” (2021) (accessible at: https://www.hrw.org/sites/default/files/media_2021/08/210803%20Thailand%20Regulation%20No.%2029%20Joint%20Statement.pdf).
• 5. Id.
• 6. Order in Reporter Production Co., Ltd et al. v. Thailand’s Prime Minister Prayut Chan-o-cha (2021) (accessible at: https://civil.coj.go.th/cms/s41/u392/6408/PR640806en.pdf).
• 7. UNESCO, ‘Journalism, Fake News & Disinformation’ (2018) at p.18 (accessible at https://en.unesco.org/sites/default/files/journalism_fake_news_disinformation_print_friendly_0.pdf.
• 8. Id.
• 9. Id at p. 70.
• 10. Id at p.55.
• 11. Id.
• 12. Id at p. 57.
• 13. Id at pp. 57-8.
• 14. Id at pp. 59-61.
• 15. Washington League for Increased Transparency and Ethics v Fox News, Plaintiffs Complaint for Declaratory and Injunctive Relief, 2 April 2020 (accessible here: https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=3190&context=historical).
• 16. United States v Alvarez, 567 U.S. 709 (2012) (accessible at: https://www.supremecourt.gov/opinions/11pdf/11-210d4e9.pdf).
• 17. Id at pp. 15-6.
• 18. UNESCO, ‘Journalism, Fake News & Disinformation’ (2018) at p.70 (accessible at https://en.unesco.org/sites/default/files/journalism_fake_news_disinformation_print_friendly_0.pdf.
• 19. Id at p.70
• 20. Id at p.70
• 21. Id at p.72.
• 22. Accessible at: https://www.un.org/en/un-coronavirus-communications-team/five-ways-united-nations-fighting-%E2%80%98infodemic%E2%80%99-misinformation.
• 23. For a useful discussion on the balancing of rights see T. Mendel, Study on International Standards Relating to Incitement to Genocide or Racial Hatred, 2006 (accessible at: http://www.concernedhistorians.org/to/239.pdf).
• 24. Duke Reporters’ Lab, ‘Fact-checkers extend their global reach with 391 outlets, but growth has slowed’ (17 June 2022) (accessible at: https://reporterslab.org/fact-checkers-extend-their-global-reach-with-391-outlets-but-growth-has-slowed/).
• 25. UNESCO, ‘Journalism, Fake News & Disinformation’ (2018) at p.81 (accessible at https://en.unesco.org/sites/default/files/journalism_fake_news_disinformation_print_friendly_0.pdf.
• 26. Id.
• 27. Id at p.82
• 28. For more resources on the legal defence of factcheckers, see the Fact-Checkers Legal Support Initiative (accessible at: https://factcheckerlegalsupport.org/).
• 29. Republic Act No. 11469, section 6(f) (2020), (accessible at: https://pnl-law.com/blog/bayanihan-to-heal-as-one-act-republic-act-no-11469-full-text/); see also Jeremiah Joven B Joaquin and Hazel T Biana, ‘Philippine crimes of dissent: Free speech in the time of COVID-19’, Crime Media Culture Vol. 17(1) 37–41 (2021), (accessible at: https://journals.sagepub.com/doi/pdf/10.1177/1741659020946181).
• 30. Reuters, Phuong Nguyen and James Pearson, ‘Vietnam introduces ‘fake news’ fines for coronavirus misinformation’(2020), (accessible at: https://www.reuters.com/article/us-health-coronavirus-vietnam-security-idUSKCN21X0EB).
• 31. Human Rights Watch, Meenakshi Ganguly, ‘Limiting Free Speech Undermines the Fight Against Covid-19, (2021) (accessible at: https://www.hrw.org/news/2021/02/24/limiting-free-speech-undermines-fight-against-covid-19).
• 32. International Federation of Journalists, ‘Thailand: New regulation curtails free speech’ (2021) (accessible at: https://www.ifj.org/media-centre/news/detail/category/press-releases/article/thailand-new-regulation-curtails-free-speech.html).
• 33. Association of Southeast Asian Nations, ‘New ASEAN initiative emphasises education as key to media literacy and countering disinformation’ (2022) (accessible at: https://asean.org/new-asean-initiative-emphasizes-education-as-key-to-media-literacy-and-countering-disinformation/ ).
• 34. Id.
• 35. See Asia Internet Coalition, ‘Members’ (accessible at: https://aicasia.org/members/).
• 36. The Diplomat, Jeff Paine, ‘The Future of Asia’s Battle Against Online Misinformation’ (2021), (accessible at: https://thediplomat.com/2021/06/the-future-of-asias-battle-against-online-misinformation/).
• 37. Article 20 of the ICCPR, read with article 4(a) of CERD.
• 38. See, for example, the UK Government Communications Services, ‘RESIST: Counter-disinformation toolkit’ (accessible at: https://www.fundacioncarolina.es/wp-content/uploads/2020/11/Toolkit-UK.pdf.