Luiz Antonio Lima
Free speech is one of the most fundamental rights in any liberal society. It allows individuals to express their opinions, beliefs, and ideas without fear of censorship or persecution. However, since Donald Trump's election in 2016, laws against disinformation and fake news have been discussed around the world, especially after the COVID-19 pandemic. While the intentions behind these laws may be good, they pose a significant danger to free speech.
In the article "The Perils of Legally Defining Disinformation" the authors explore the implications of legally defining disinformation for fundamental rights and EU policy. One major concern is the potential impact on freedom of expression.
For example, the French law against disinformation passed in 2018 defines disinformation as "all false or misleading allegations, statements or imputations of a fact, as well as any alteration of the veracity of elements of information." With such a broad definition, a government from any part of the political spectrum could censor any speech it deems false.
But the element of vagueness is not only found in the French law. The German Network Enforcement Act (NetzDG), introduced in 2017, requires social media companies to remove any hate speech or content deemed illegal within 24 hours or face fines of up to 50 million euros. However, the law does not define what constitutes hate speech or illegal content, leaving it up to social media companies to decide. By placing the burden on the companies to identify and remove content, under risk of hefty fines and without specifying the content to be removed, platforms are incentivized to remove anything that might violate the law, eventually suppressing even lawful content. After all, the company gains nothing – at least not in the short run – by leaving speech on its platform while it potentially “gains” hundreds of millions in avoided penalty payments, reputational damage etc. if it removes speech. An incentive structure constituting a nightmare for free speech advocates around the world! In the end, by forcing companies to comply with such laws that leave no leeway, governments are pushing companies to violate constitutionally protected rights for them. The dirty goal of limiting free speech is reached without having to face public scrutiny.
One example of a European government using laws against disinformation to limit free speech is Russia's "foreign agent" law. It requires media outlets that receive foreign funding and engage in "political activities" to register as "foreign agents." The law has been used to target independent media outlets and limit their ability to operate freely. Around 200 NGOs have been already targeted under the law, including human rights organizations like the Committee Against Torture, which was ultimately dissolved.
While the political context of the countries mentioned and the intentions behind the laws differ significantly, they all share the commonality of defining disinformation broadly, allowing for censorship by public authorities. For example, according to the IPI (Internet Press Institute), during the COVID-19 pandemic there were 35 cases of censorship of publications related to the pandemic in Europe, and 23 journalists were arrested, 7 specifically for violating anti-fake news laws. However, the blatant cases of censorship are not the only harm caused by them, as their mere existence threatens democracy in the region, as individuals and organizations may self-censor or avoid discussing controversial topics altogether, leading to a lack of critical discourse.
Simultaneously, these laws often put the burden of proof on the accused. In other words, a person or organization accused of spreading disinformation or fake news must prove their innocence. This reversal of one of the most fundamental principles of justice is particularly worrisome.
As a Brazilian citizen, I am deeply concerned about the new anti-fake news law being enacted in Europe, as the region is widely considered a model of public policy for the rest of the world, resulting in countries like Brazil also pursuing regulation on disinformation. These laws can restrict free speech and limit critical discourse, as we have seen with similar laws in Europe, but without comparable levels of institutional integrity, increasing the harm they create. The example of Russia's "foreign agent" law demonstrate the dangers of using laws against disinformation to restrict free speech. We should be wary of similar measures being implemented worldwide in the molds of European regulations. It is our responsibility to recognize the dangers of anti-disinformation legislation and uphold the fundamental right to free speech!