Laws aimed to curb ‘fake news’ can jeopardize press freedom: Study

Laws meant to combat “fake news” in over 30 countries endanger press freedom, a recent study by a research institute has found. 

Published by Center for News, Technology & Innovation (CNTI), the study titled “Most "Fake News" Legislation Risks Doing More Harm Than Good Amid a Record Number of Elections in 2024” concluded that “fake news” policies do “little to protect fact-based news and in many cases creates significant opportunity for government control of the press.” The study analyzed 32 pieces of legislation, proposed or enacted between 2020 and 2023 in 31 countries, 11 of which go to polls in 2024.

This illustration depicts the 2023 Press Freedom Rankings, released by Reporters Without Borders (Reporters sans frontières - RSF), of the 31 countries whose “fake news” laws were analyzed by CNTI. A higher ranking indicates low performance.

Raising concerns over potential government censorship, the study noted that “fake news” laws can and have been used by the government to label independent journalism as disinformation. Referencing data maintained by the Committee to Protect Journalists (CPJ), the paper also mentioned that 39 of the 363 journalists jailed around the world in 2022 were imprisoned for violating disinformation or “fake news” policies. (CPJ had later updated the 2022 figures to 41 and 367, respectively).  

As of December 1, 2023, CPJ had documented at least 320 journalists behind bars, the second-highest figure recorded by the non-profit since 1992. Of these reporters, 32 were imprisoned for charges that included sharing “false news.” Eight such journalists were from Myanmar, seven were from Egypt, and five from Myanmar.

According to CPJ, as of December 1, 2023, 32 journalists have been imprisoned for charges that included sharing “false news” all over the world. (Source: Committee to Protect Journalists)

The findings of the CNTI highlighted three ways the lack of safeguards in “fake news” legislations and policies risk curbing press and journalistic freedoms. Here’s a look at the risks:

Vague language 

The study notes that just less than a quarter of the analyzed legislations (seven out of 32) explicitly laid down the definition of “fake” or “false” news (sometimes referred to as disinformation, misinformation, or other terms in the laws.)

Less than a quarter of the analyzed laws defined any terms related to journalism, the study further noted. “Only four of the 32 policies explicitly define news organizations, while journalism (as in news content, not “fake news”) is defined in two of the 32 policies and journalists in only one,” it said.

The study stressed that the need to define “journalism” or “journalists” within policies was as, if not more, critical as defining “fake news.” It pointed out that a lack of clarity and the use of vague language, even when such terms were defined, carried risks for journalists and the public. “While they may be intended to protect independent, pluralistic journalism, these definitions can also be used to sanctify government control of the press,” the study said. 

A case in point here is the persecution of three journalists arrested in November 2023 in Türkiye — which, according to the CNTI study, does not define “fake news”— for spreading “false information” under a disinformation law introduced in 2022. Free-speech advocates and Opposition leaders labeled the law as "an alternative method for authorities to repress journalism” and a way to censor dissent. 

Who decides what is ‘fake’?

The second concern highlighted by the study was who decides what counts as a violation under “fake news” laws. It pointed out that this authority responsible for determining what or who constitutes “fake news” was clearly designated in less than half of the legislation (only 14 out of 32 policies). With no clear or noted oversight authority for the remaining 18 legislations,  these policies were prone to abuses aimed at curbing press freedom.

The report noted that of these remaining 18 policies, 11 of them included regulations for “fake news” or disinformation that were part of broader laws related to COVID-19. While the health ministries of the concerned countries maintained authority over these broader COVID-19 policies, it was unclear what authority governed matters of “fake news” specifically. 

Laws in the other 14 countries stated that the head or minister of the government commissions or other government bodies oversees the legislation. However, the study noted that many of these countries have autocratic governance, which may result in a greater risk for “governmental press and message control.”

Penalties for spreading misinformation

Another element the study considered for the protection of press freedom was the criminalization of “fake news.”

Clearly noted penalties for creating or publishing “fake” or “false” news were mentioned in 27 out of 32 laws, the study found. Of these 27 laws, three-quarters (20 laws) included imprisonment as a penalty, ranging from less than one month in Lesotho to up to 20 years in Zimbabwe. 

About 55 were arrested or summoned for spreading “misinformation” during COVID-19 lockdown in India alone, according to a report published by New Delhi-baed independent think tank, Rights & Risks Analysis Group, in 2020. 

The risk of such serious consequences, exacerbated by the possibility of abuse by governments in the wake of vague language and no noted oversight authorities or processes, could dissuade journalists and make them afraid of their work being labeled as “fake news,” the CNIT study concluded. 

While there is no denying that misinformation poses a public risk, the above-mentioned risks with laws aimed at curtailing the spread of “fake news” can pose a bigger risk to press freedom, especially in 2024—the mega election year as over 50 countries are scheduled to witness general polls, including the United States, India, and the United Kingdom. 

(Correction: An earlier version wrongly stated that the Center for News, Technology & Innovation (CNTI) is a New Delhi-based organization. The error is regretted.)