Monday July 16, 2018

Seares: Where the fake news law could fail

LAST June 22, Sen. Joel Villanueva filed Senate Bill #1492 that seeks to punish “malicious distribution” of fake news and black propaganda.

As stated in his bill, the purpose is to help curb proliferation of fake news and black propaganda.

The Senate bill still has to undergo the process: committee action, possible public hearing, and, if the House also has a parallel bill, bicameral reconciliation of the two versions.

Areas of concern

From news reports on what SB #1492 provides, one can see the areas of concern whether the bill, in its present state, will work. Under Villanueva’s proposal:

[1] “Fake news” is inadequately defined; so is “black propaganda” that’s lumped with it.

[2] Nature of malice as an element of the crime is not specified. Is it presumed?

[3] “Aiding or encouraging” the criminal act is unclear. How does one become an accomplice?

[4] It doesn’t recognize the technological problem of identifying perpetrators and removing offensive material.

Crimes, punishment

The main crime under the bill is “maliciously” offering, publishing, exhibiting, circulating, or spreading false news or information in print, broadcast and online media.

The other crimes are:

-- Aiding or encouraging publication and circulation of the fake news;

-- Failure, neglect or refusal of a mass media enterprise or a social platform to remove fake news;

-- Creating or spreading black propaganda to discredit a person’s reputation.

Penalties range from P100,000 to P200 million and up to 10 years jail term, depending upon offense or offender. Aiding or encouraging the offender draws less penalty than publishing or circulating. Not taking down the fake news carries heavier penalty than the other crimes. And public officials are meted twice the penalty for publishing or circulating.

Different meanings

As the term is used in the bill, the phrase may cover almost every journalistic sin, except typo and grammar error. U.S. President Trump takes it to the extreme: any story or feature he doesn’t like is fake news.

SB #1492 doesn’t tell or clarify what fake news or information is, except to say that it causes or tends to cause “panic, division, chaos, violence and hate.” The effect, actual or potential, is the crucial element.

Given the different meanings that people apply to “fake news,” the law has to specify what legislators mean. What will it cover? Only total concoctions? How about partially-true or wrongly-angled stories? Fictitious stories labeled as satire or coming from properly identified satire sites: are they penalized too?

Only the result

As the bill is now phrased, the only requirement for fakery or falsehood to be criminal is that it causes or tends to cause panic, division, chaos, etcetera. (“Division”? How is that gauged? Would clash of opinions indicate division?)

And if false information is published and circulated, is malice presumed? SB #1492 doesn’t say if the principles of libel law apply to “fake news” crime: whether privileged communication also benefits the peddler of bogus material. Mainstream media would like to know if it is worse off under the would-be law than under existing laws.

Vague points

If the crime is committed on the internet, problems of enforcing and interpreting the proposed law are likely to swamp police and the courts.

Such as:

-- What constitutes “aiding” or “encouraging”: Would “liking,” re-tweeting or sending fake news to friends be criminal?

-- How to go after offenders who use aliases, have no addresses, or hide behind layers of anonymity in the world of web and flee by shutting down their site;

-- Removing “offensive” material won’t be easy and may not even be possible.

Tech obstacles

More formidable would be identifying authors of fake news if bogus names and addresses are filed with the social media platform. And the equally vexing problem: how to weed out the damaging material.

Lawmakers must accept the fact that moves being taken by social media platforms in unmasking offenders and taking down criminal material are not yet efficient enough to deter or catch lawbreakers. For one, unless account holders give true names and addresses, catching perpetrators would be tough. For another, how far could an order for removal of the damaging content go? Experts’ consensus is that “once something is on the internet, it’s nearly impossible to erase it.”

S.B. #1492 and the House equivalent measure must craft rules that could still be effective despite handicaps created by new technology.

Otherwise, we would only have the farce of a law.

[Seares is also executive director of the Cebu Citizens-Press Council (CCPC). His opinion here about SB #1492 is his personal view. CCPC has not yet taken a stand on the issue.]