Reporting the truth is an important goal for professional journalists whose reputation depends on it. ARTICLE 19 works to abolish ‘false news’ laws which stifle journalists from reporting in environments that are often contradictory and rapidly developing.
A number of countries around the world prohibit the dissemination of false information, even if it is not defamatory in nature.
Sometimes, the ban is formulated as a specific duty for journalists to report truthfully or to avoid one-sided, distorted or alarmist stories. Such ‘false news’ provisions are found in the laws of repressive countries but are rare in the more established democracies and have been ruled unconstitutional in some.
No international court has yet considered the legitimacy of false news provisions under international law. However, statements by some UN bodies concerned with human rights make it clear that false news provisions are inconsistent with the guarantee of freedom of expression, particularly if they are enforced through the criminal law. Commenting on the domestic legal system of Cameroon, the UNHRCm stated that “the prosecution and punishment of journalists for the crime of publication of false news merely on the ground, without more, that the news was false, [is a] clear violation of Article 19 of the Covenant.”
On other occasions, the UNHRCm has reiterated that false news provisions “unduly limit the exercise of freedom of opinion and expression.” It has taken this position even with respect to laws which only prohibit the dissemination of false news which causes a threat of public unrest. In 2000, the UN Special Rapporteur made a statement on the unacceptability of imprisonment under false news provisions, saying:
In the case of offences such as ... publishing or broadcasting “false” or “alarmist” information, prison terms are both reprehensible and out of proportion to the harm suffered by the victim. In all such cases, imprisonment as punishment for the peaceful expression of an opinion constitutes a serious violation of human rights.
What is the objection to false news provisions? Reporting in a truthful and balanced way is, of course, an important professional goal for journalists, especially those that work for public service broadcasters and are expected to serve the interests of society as a whole. But writing this goal into law presents several unacceptable dangers.
First, false news laws can have a serious chilling effect on the work of reporters. In situations of rapidly developing news, or where different sources contradict each other, facts may be difficult to check. Given that reporters’ reputations depend on the quality of the information they provide, they naturally have a strong incentive only to share news which they are fairly confident is correct, and to warn their audience if a certain fact cannot be verified.
If, however, journalists have the sword of a false news law hanging over their head, they might simply decide not to report news that they are not completely certain of at all, for fear of ending up in jail. As a result, citizens will be deprived of potentially vital information on current developments.
Second, facts and opinions are not always easily separated. In many cases, opinions are expressed through superficially false statements, such as sarcastic, satirical, hyperbolic or comical remarks. For example, someone who describes someone else as a ‘gangster’ is not necessarily accusing the other of being involved in unlawful activities.
A ban on false news can therefore easily become a ban on opinions not favoured by the authorities, endangering the free confrontation between different points of view which lies at the heart of democracy. This concern was highlighted by Canada’s Supreme Court in a case in which it struck down a false news provision as contrary to the constitutional guarantee of freedom of expression. The Court stated: “The reality is that when the matter is one on which the majority of the public has settled views, opinions may, for all practical purposes, be treated as an expression of a ‘false fact.’”
Third, false news provisions fail to recognise that it is often far from clear what the ‘truth’ on a particular matter is. As such, false news provisions are almost by definition impermissibly vague and, therefore, violate the first part of the three-part test for restrictions on freedom of expression. Moreover, even if a particular truth is well established, it may not always remain that way. As G.B. Shaw wrote: “New opinions often appear first as jokes and fancies, then as blasphemies and treason, then as questions open to discussion, and finally as established truths.” This historic observation should give governments cause to reflect before penalising certain information or ideas as ‘false’.
Lastly, the practice of states which still have false news provisions on the books shows the great potential for their abuse. A cogent example is the case of Lim Guan Eng, deputy leader of the opposition DAP party in Malaysia. In 1995, Lim raised concerns about the statutory rape of a 15-year old girl allegedly committed by the Chief Minister of the State of Malacca. The girl had been sentenced to 3 years ‘protective custody’ in a home for wayward girls, while the Chief Minister himself was not prosecuted. Lim questioned why the girl had been ‘imprisoned’. The Malaysian courts found that this inaccurate description of the legal nature of the girl’s detention, which was protective custody rather than imprisonment, constituted false news, and Lim was sentenced to 18 months in jail.
Mindful of the risks of false news provisions, several domestic courts have ruled such provisions to be unconstitutional, including in Antigua and Barbuda, Canada, Uganda and Zimbabwe.