Date of this Version
Law Library of Congress, Global Legal Research Directorate, April 2019.
Also available at: https://www.loc.gov/law/help/fake-news/counter-fake-news.pdf.
Comparative Summary by Peter Roudik, Director of Legal Research
This report examines the legal approaches of fifteen countries, representing all regions of the world, to the emerging problem of manipulation with “fake news” using mass and social media, especially the impact of fake news on ongoing political processes and elections, and the legislative measures undertaken to counteract the dissemination of false information. Fake news as a phenomenon is not new and has been known since ancient times, but the present-day proliferation of digital and social media platforms, which allow for much broader distribution of information to a global audience, makes the need to counter fake news much more acute. With the exception of Japan, which appears to be the only country in this study where fake news scandals are limited to newspapers and tweeted messages that have no outside influence, a fact explained by the difficulty of the Japanese language for foreigners, the widespread distribution of false information and its impact on decision making and democratic processes is becoming a challenge worldwide. In 2017, a parliamentary committee in Egypt identified the dissemination of 53,000 false rumors over a period of two months. In Germany, 59% of survey participants stated that they had encountered fake news, and in some segments of the population this number was up to almost 80%. In Kenya, a country where 90% of the population has access to high-speed internet, 90% of surveyed users said that they received false or inaccurate information regarding the recent elections through social media.
The countries included in this study are addressing the fake news problem through one or more of the following four approaches:
• In the absence of legislation that expressly addresses the objectivity of news posted on social media, some of the surveyed countries apply relevant provisions of existing civil, criminal, administrative, and other laws regulating the media, elections, and anti-defamation (Canada, Japan, Nicaragua, Sweden, and the United Kingdom), even though these laws, enacted in the pre-internet era, do not always reflect current technological and telecommunications developments.
• Others are choosing to enact new and more focused legislation that imposes sanctions on social media networks that spread false news, usually imposing fines and ordering the removal of information identified as false (China, Egypt, France, Germany, Israel, Malaysia, and Russia). In Malaysia and Egypt these provisions apply extraterritorially.
• Another option reflected in the country surveys is to engage election authorities and digital platforms to secure a well-informed electorate, either by identifying and blocking fake news, providing fact-checking resources for the general public, or through the mass publication of “real” news during election season and beyond (Argentina, the UK, China, and Malaysia). Argentina, for example, is considering legislation that would create a Commission for the Verification of Fake News within the National Election Chamber. During national election campaigns, the Commission would recognize, label, and prevent the distribution of news considered “of doubtful credibility.” Both the UK and China have programs in place to systematically rebut fake news by publishing reliable information, while Malaysia provides a fact-checking portal.
• Some of the countries are also addressing the issue in a more general way by educating citizens about the dangers of fake news (Sweden and Kenya). Sweden starts at a young age, having enlisted a famous cartoon character to teach children about the dangers of fake news through a cartoon strip that illustrates what happens to the bear’s super-strength when false rumors are circulated about him. The US Embassy in Kenya launched a media literacy campaign in 2018, initially aimed at the Kenya chapter of the Young African Leaders Initiative, with the specific goal of stopping the dissemination of fake news.
Among the countries surveyed, there is no common position regarding the definition of “fake news” and its scope. The UK government attempts to avoid use of the term altogether, instead using the words “disinformation” and “misinformation.” Countries with established anti-fake news laws have more elaborate terminology. Malaysian legislation defines fake news as “any news, information, data and reports, which is or are wholly or partly false, whether in the form of features, visuals or audio recordings or in any other form capable of suggesting words or ideas.” Russia passed a law penalizing the publication of fake news in March 2019, defining the term as “socially-significant false information distributed under the guise of truthful messages if they create a threat of endangering people’s lives, health, or property; create possibilities for mass violations of public order or public security; or may hinder the work of transportation and social infrastructure, credit institutions, lines of communications, industry, and energy enterprises.” China has made it a crime to “fabricate false information on [a] dangerous situation, epidemic, disaster or alert and disseminate such information via [an] information network or any other media while clearly knowing that it is fabricated, thereby seriously disturbing public order.” Relying on the 1881 Freedom of the Press Law, France has made it illegal to “disturb public peace through the publication, dissemination, or reproduction of fake news in bad faith.” The bad-faith publication, dissemination, or reproduction of forged or altered items, or items falsely attributed to third parties, is also prohibited.
Broad definitions are usually found in the laws of those countries that are rated low in indices related to freedom of speech, and such laws are often viewed by human rights organizations as government attempts to further restrict free speech and stifle opposition. The new Malaysian government tried unsuccessfully to repeal a 2018 act under which the government is required to “take measures to remove” the publication of recognized false information and imprison the publisher for up to six years. In Canada and Kenya courts have found anti-fake news provisions unconstitutional as a violation of freedom of expression and have thus suspended the implementation of such provisions.
Following the events of the United States 2016 election campaign, several countries introduced legal mechanisms aimed at protecting the integrity of the democratic process, although depending on country specifics these laws apply to varied actors. In Sweden, the focus was on self-regulation by professional organizations of journalists and other media providers and strengthening ethics rules. This solution followed the European Union’s approach where an EU-wide voluntary Code of Practice on Disinformation has been introduced. However, in view of the inadequacy of voluntary measures taken by social media platforms, Germany enacted the Network Enforcement Act in 2017. While this Act does not create new obligations for social media, it The Law Library of Congress 3 Initiatives to Counter Fake News: Comparative Summary imposes heavy fines for noncompliance with existing legislation and creates rules for the investigation and removal of illegal content hosted by networks with a very large number of registered users. French law also provides for special preventive measures that need to be implemented by operators of large-scale online platforms. Russian law distinguishes between news published by online media, news aggregators, and individual social network users. There are specific rules for the removal of information and the liability of authors, publishers, and internet providers depending on the type of the online platform.
Some countries are also taking steps to prevent foreign influence in their national elections. Interesting examples include an Israeli bill targeting foreign propaganda that, if passed, would allow the head of the Central Election Commission, who serves as a Supreme Court justice, to issue injunctions preventing the receipt of prohibited donations, monetary or otherwise, under current law. Under French law, a judge may order any measures necessary to stop the online dissemination of misleading information during the three months preceding an election. During the same period, foreign television broadcasts may be suspended if they deliver false information.
The governments of several countries included in this report recognize that a substantive response to disinformation could be an effective way to tackle fake news. The British government’s position is that it is more important to inform citizens of the facts than to simply rebut false information. For this purpose, a Rapid Response Unit within the executive branch monitors news and engages with the public online. In China, a government online platform called “Refuting Rumors” was launched to broadcast “real” news sourced from government agencies and state-owned media. A similar web portal allowing the public to check the authenticity of news found online has been established in Malaysia. In addition, Kenya and Sweden have general education campaigns aimed at young people in place to counter the fake news trend, as noted above.
The individual country surveys that follow analyze current and proposed initiatives to limit the spread of false information undertaken at the national level, each country’s challenges associated with these efforts, and efforts undertaken by national governments to secure the validity and accuracy of legal information.
Communication Technology and New Media Commons, Intellectual Property Law Commons, Journalism Studies Commons, Mass Communication Commons, Scholarly Communication Commons, Scholarly Publishing Commons, Social Media Commons