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Fake News Legislation Criminalises Activists

On 30 September 2021 in Cambodia, journalist Youn Chhiv was sentenced to one year in prison and a fine of 2 million riel (US$500) over charges of incitement, after he reported on the eviction of villagers and destruction of their property over state land claims. No judicial investigation was done before the trial as authorities assumed it was a case of flagrante delicto.

‘Fake News Laws’ have been rolled out in East and Southeast Asian countries to deal with the digital age’s out-of-control spread of disinformation. While these laws are genuinely intended and worded to tackle the threat of fake news, they have been politicised and used against government critics and dissenting voices. The COVID-19 emergency decrees and temporary laws have strengthened this trend to stifle criticism of the rulers’ crisis management.

Six key targets accused of spreading ‘fake news’ are identified: journalists, civil society activists, opposition leaders, student activists, artists and tech companies. Vaguely worded provisions easily transform legitimate comments and accurate evidence-based criticism into defamation and fear mongering.

Any questioning of the government’s policies can be prosecuted, resulting in a chilling effect on freedom of expression. To remedy such overcriminalization, independent agencies should be tasked with the identification of ‘fake news’, in collaboration with fact-checking groups. Additionally, alternative penalties should be preferred to criminal sentences, and guided by the principle of proportionality.

Everywhere, journalists bear the brunt of the repression when their reports are disagreeable to the rulers. Just doing their job – and doing it well – can put them at risk of criminal legislation. The resulting self-censorship of independent media and reporters leaves an open field for state-sponsored media and doctored information.

‘Fake news’ laws are routinely used to fight political opponents. In Singapore, the 2019 infamous POFMA was used in its first months of existence against 4 prominent opposition figures, before the 2020 general election. By ordering them to post corrections to their online post, the ruling party ensures that their views may not be publicly challenged.

Authoritarian leaders are also known to eavesdrop on the conversations and meetings of their political opponents. On 9 September, the unconstitutionally dissolved CNRP saw Prime Minister Hun Sen infiltrate the virtual room and threaten the exiled leaders of never returning to Cambodia if they “kept working against national interests”. Whereas the right to privacy is protected under the Constitution and several international human rights treaties ratified by Cambodia, the executive power does not hesitate to manipulate Fake News provisions in order to infringe on privacy rights of activists and political opponents, and then charge them under charges such as insulting the king.

Simple citizens also face criminal charges over ‘fake news’ accusations: in February 2020, a West Kowloon (Hong Kong) based security guard was the first person to be arrested under Section 20 of the Summary Offences Ordinance for sharing an audio clip online which raised concern of co-workers on sick leave – and asking the public to avoid the area, in the context of the ongoing pandemic..

‘Fake news’ criminals are often the same people as those prosecuted under defamation and lèse-majesté legislation. On 22 July 2021, 12 Thai pro-democracy student activists were charged with royal defamation and sedition. The charges refer to student-led rallies in October 2020 to demand reforms to the country’s political system.

The last target group of ‘fake news’ legislation is tech companies. Those are not targeted for creating disinformation but for allowing their spread. In Vietnam, the 2018 Cybersecurity bill forces tech companies to have an office in the country so as to be able to force them to take down content the government deems to be ‘fake news’. Hefty fines push tech companies to be overzealous and take down any ‘risky’ content. By targeting online platforms, governments have gained a strong censorship tool.

In contrast, on 29 September 2021, the ruling party of South Korea agreed to retract its proposed ‘fake news’ bill amidst public outcry claiming it would restrict freedom of the press and instill censorship. Instead, the ruling party and its opposition will work together to amend and adapt existing laws and avoid over-criminalisation.

A global backlash against ‘fake news’ legislation emerges from the observed manipulation and misuse of well-founded provisions by governments to target opponents and silence criticism. Vague wording and politicised enforcement are in the radar of human rights organisations.

In Cambodia again, the ruling CPP faces renewed criticism over their use of defamation and incitement provisions to suppress any political opposition by activists, political leaders or human rights defenders. Early 2021, nearly 150 opposition figures and supporters were tried, many of them in absentia, many over charges of ‘incitement to commit a felony’.

Most fake news laws do not provide a very clear definition of what will be prosecuted, allowing for mere opinions to be punished. Another issue lies in the identification and investigation of fake news. As long as it remains in the hands of the government, or of a heavily politicized administrative corps, enforcement will remain biased.

Biased use of fake news laws result in a total impunity of rulers and government officials, even though they are known to spread disinformation, while the groups described above are deeply scrutinized and may be condemned over any displeasing statement. There is a flagrant inequity.

To remedy this situation, a review of existing laws is necessary, so as to amend language and fit international standards. The implementation of the law should then be left to an independent institution. Such precautions would make for a more effective fight against disinformation while protecting core human rights such as freedom of expression and of opinion. In Cambodia in particular, the very participation in the political life of the Kingdom is at stake.

By Sam Rainsy

Sam Rainsy is the acting president of Cambodia National Rescue Party (CNRP) and former chairperson of the Council of Asian Liberals and Democrats (CALD).