Fighting Fake News: How Mis- and Disinformation Legislation is Weaponized Against Journalists

In the aftermath of Russia’s deadly attack in Mariupol, Ukraine, that left nearly 600 civilians dead, journalist Maria Ponomarenko found herself ensnared in a legal battle for posting online that Russia was responsible, which the Russian defense ministry denied. In February 2023, she was sentenced to six years in prison for spreading “false” information about the Russian military.

Her case is emblematic of a growing global trend as countries around the world try to protect their news ecosystems from the flood of dangerous misinformation proliferating online. Independent journalists are often caught in the crosshairs of legislation meant to combat misinformation, disinformation, and mal-information (MDM).

The Rise of MDM Legislation

Chilling Legislation: Press Freedom and the Battle against Fake News explores how MDM laws can stifle independent journalism and weaken digital rights around the world. Authors Gabrielle Lim, doctoral fellow with The Citizen Lab at the University of Toronto, and Samantha Bradshaw, assistant professor in new technology and security at American University, make the case that, in reality, many MDM laws are designed in ways that can be detrimental to independent journalism.

In countries with weak safeguards to protect independent media, or where government censorship is the norm, laws can intentionally and unintentionally impose restrictions on independent journalism. MDM laws often lack definitional specificity, resulting in subjective interpretation and selective enforcement by authoritarian states. These ambiguities can be weaponized, transforming legislation into a tool to suppress independent media.

MDM legislation has proliferated in recent years. Between 2011 and 2022, 105 new laws were passed in 78 countries. 91 of these laws were passed between 2016 and 2022, highlighting the rapid rate at which they have been enacted. Consequently, there has been a substantial increase in the number of journalists imprisoned on MDM-related charges during this period—between 2011 and 2015, a total of 22 journalists were jailed on MDM charges. Between 2016 and 2022, that number shot up to 225.

MDM charges can also result in other consequences, including fines, compelled speech requirements, and cumbersome administrative burdens. For independent news organizations, these consequences can be devastating and suppress press freedom in ways that go beyond self-censorship.

Real-world Implications: Belarus and Malaysia

Belarus amended its media laws in 2018 to combat “fake news,” but this was widely seen as a bid to restrict free expression online. The amended laws require that those who post and comment online identify themselves. Supporters of the laws argue that they protect the information space, but Lim and Bradshaw point out that the identification requirement infringes on digital privacy.

In Malaysia, comments left by readers on an article published by independent news outlet Malaysiakini led to an astronomical fine. Malaysiakini was fined 500,000 MYR (approximately $124,000) for reader comments that courts deemed “spurious” and “untrue.” Through crowdfunding, Malaysiakini was able to pay the fine, but without a generous audience, the fine may have been debilitating.

Reframing the Approach: De-Securitization

To mitigate the crippling effects of MDM laws on press freedom and digital rights, Lim and Bradshaw advocate for a shift in perspective: a process of de-securitization. They urge that efforts to combat these laws be removed from the realm of national security. When misinformation is framed as a security threat, governments may exploit this stance to silence independent journalism and free expression, ostensibly in the name of protecting citizens.

Though there are justifiable reasons for enacting information controls, especially during a crisis or war, increased scrutiny and transparency should be exercised to ensure that any necessary information controls are in line with existing international law and human rights frameworks. Legislation regarding freedom of expression must be narrowly circumscribed, serve a legitimate purpose as recognized by international law, and impose proportionate punishments consistent with that legitimate purpose.

The alarming rise in MDM laws and their potential for misuse against journalists and independent media underscores a critical challenge in today’s digital era. Chilling Legislation: Press Freedom and the Battle against Fake News provides an urgent call to action. Policymakers, journalists, and citizens must collaborate to craft laws that fight misinformation without undermining democratic values or silencing independent media.

Sasha Schroeder is CIMA’s program and communications assistant.

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