Since the US presidential election in 2016, fake news has become a pressing issue on the agenda of governments around the world. As a threshold issue, however, the question must be addressed of whether the state should take steps in regulating fake news and if so, what kind of regulatory regime would be most appropriate. While a reconsideration of the case for increased state regulation in this area is much needed, existing legal frameworks for regulating fake news, in practice, often focus more narrowly on the regulation of online content. A key objective of this approach is to thwart the spread of fake news by removing potentially problematic content from online platforms. Such an approach effectively frames the issue of fake news as a matter of illegal content, which could have potentially serious implications for fundamental rights and principles, particularly freedom of expression.
With the development of an increasingly convergent media environment, the power and importance of private entities in shaping the public discourse online are second to none. In a forthcoming article in Information & Communications Technology Law, Ric Neo and I identify normative considerations regarding the lack of state regulation to target fake news in the online realm, where the activities of private actors could pose a potential danger to fundamental rights in democratic societies. At the same time, to call for state regulation as a countervailing force to private actors would be too simplistic an approach. This is because there is a seeming disconnect between discourses on fake news as a global problem challenging the way we share and perceive knowledge in the digital era, and discourses that frame fake news as a “national security” issue. Through a case study of contemporary fake news regulation in Thailand, we argue that to frame the issue as one requiring strict rules to protect the Thai public from falsehoods jeopardising peace and security creates a misconception that fake news is illegal in all cases, and runs the risk of curtailing free speech without appropriate safeguards.
Enforceable legal provisions to tackle illegal content
As in the case of other internet content, fake news can be illegal when it is contrary to relevant legal provisions which are capable of engaging the enforcement function of the state. For instance, in many jurisdictions where the main form of speech regulation is in the form of defamation and libel laws aiming to protect the reputation of individuals, those laws have created a potential avenue for affected individuals to seek legal recourse against fake news. In Thailand, a sweeping range of laws to regulate online content – such as laws concerning criminal defamation, computer-related crimes, sedition and lèse majesté – may be relevant to the dissemination of fake news. Since the military coup in 2014, the state has been criticised by human rights groups for interpreting and enforcing these laws in a way that is restrictive of fundamental freedoms for the peaceful expression of views and opinions. For better or for worse, the growing global concerns about the danger of fake news have given rise to an increase in government control to tackle illegal content and proactively request major platforms to remove such content under the pretext of “national security”.
Among the various Thai laws available to prosecute those behind the dissemination of what the authorities consider to be “fake news”, the most controversial legal instrument is the Computer Crime Act – a piece of legislation which has been introduced in 2007 to protect computer systems and data from certain acts, such as unauthorised accesses and various types of cyber-attacks. Since its promulgation, the law has encountered criticism for its arguably problematic flexibility and the fact that it has been perceived to serve the wrong purposes, having been used mainly for prosecutions of illegal online content. More recently, in response to the rise of fake news, the Thai authorities have adapted this law to impose substantial penalties on anyone found to have uploaded or spread false or distorted information via a computer system. Furthermore, the law has now been used alongside other official initiatives, such as the establishment of an Anti-Fake News Center to monitor the spread of misinformation online and work as a coordinating point to bring charges against persons accused of spreading fake news.
Danger of the interpretation and application of cybercrime laws to overcome fake news
Currently, fake news is mainly covered by Section 14 of the Computer Crime Act, which makes it an offence to input into a computer system, forged computer data in whole or in part or false computer data in a manner that is likely to cause damage to any other person or the public. Section 14 was originally inspired by the 2001 Council of Europe Convention on Cybercrime (the ‘Budapest Convention’), which became a standardised model for states in the development of cybercrime legislation to address specific issues pertaining to computer and internet crimes.
However, due to ambiguity in the definition of “computer data” under Section 14, this provision has been interpreted and applied broadly to include “information”, or “content”, in the online realm. Particularly, in the context of defamatory statements found to contain “false” information or content, this provision was used as an additional mechanism to complement traditional criminal defamation prosecutions with the heavier penalties to which it may give rise. In addition to the abuse of Section 14 to prosecute online defamation, according to research done by iLaw.or.th, there have been around 50 cases between 2007 and 2017 where this provision was used as an instrument to “silence social movement”. This research suggests that the law may have been misused to tighten control of online content and level accusations against vaguely-defined cybercrime “offenders” who posted and shared otherwise legitimate opinions as well as peaceful critics that the state deemed harmful. Against this background, Section 14 has become one of the most controversial issues under the Act.
In recent years, the passing of anti-fake news legislation to specifically address online disinformation and regulate major digital platforms in other jurisdictions has prompted the Thai government to enforce Section 14 more strictly to counter fake news in Thailand. The amendments to the Act in 2017 substituted the following offences under Section 14 to cover fake news:
(1) “dishonestly or by deceit, bringing into a computer system computer data which is distorted or fake… in a manner likely to cause loss to the public, where it is not the commission of an offence of defamation under the Penal Code;
(2) bringing into a computer system computer data which is false in a manner likely to cause loss to the maintenance of national security, public security, national economic security or an infrastructure involving national public interest or in a manner causing public anxiety…”
Despite the amendment, many of the elements of Section 14 remain vague and, as a result, continue to raise public concern regarding the wide scope it leaves for interpretation. Some argue that it serves to compromise the exercise of free speech for internet users. The positive changes of the amendment merely focus on preventing the application of this provision to cases of online defamation. This can be seen from the requirement of dishonesty or deceit as a specific intent of the offence under Section 14(1), and the clarification that this provision does not apply to “the commission of an offence of defamation under the Penal Code”. However, the newly amended term “distorted” computer data could result in an excessively wide interpretation of the provision, as it targets any online content that contains false or misleading information without considering other characteristics that must be fulfilled to classify a publication as fake news, as opposed to simple falsehoods.
Certain changes in Section 14(2) also offer more room for its application to a variety of matters relating to national security, such as public safety, national economic security, or the causing of public panic. As the authorities broadly define fake news as any viral online content that misleads people or damages the country’s image, this has created a situation in which most information that is critical of the government could be considered a threat to national security and labelled as “fake news”, particularly in circumstances relating to the electoral process or any form of crisis. The low threshold for accusing individuals of importing illegal computer data has opened the door widely for subjecting almost any critical voice to allegations of spreading fake news – and facing enforcement under the Computer Crime Act. More recently, the Digital Economy and Society Ministry’s Anti-Fake News Centre collaborated with the police to press more charges against internet users who shared false information about the outbreak of Covid-19. Most of these reported cases of fake news are minor, but still require valuable police, prosecutorial and judicial resources. It has been said that those cases are nevertheless pursued because they involve criticism against public authorities or government officials.
Moving beyond content regulation amidst the uncertainty of what constitutes ‘fake news’ under the law
The emergence of fake news may well challenge the conception of illegal content under domestic law. However, existing attempts at regulation in Thailand have taken an ‘as is’ approach to fake news as illegal content on social media, instead of developing a forward-looking solution to the problem of fake news based on a normative understanding of why it should be regulated in the first place. As indicated above, the failure to undertake an inquiry along these lines has allowed prima facie straightforward ‘solutions’ such as arrests and prosecutions to imperil the rule of law and fundamental rights and principles, while the existing rift in power between social media platforms and the public has widened.
The difficulties presently posed by fake news are compounded by multiple challenges that can be of a social, political, technological and legal nature, and these challenges cannot be met by mere ‘simple’ solutions. The notion of national security does not explain and, therefore, cannot address the new challenges posed by fake news at a systemic level, that shape our perception of truth and knowledge in an evolving information ecosystem. The law should seek to identify clearly the risks and harm created by fake news, while recognising that ignoring the ‘true’ problem will pose a real danger to the public. The strict enforcement of existing cybercrime laws to counter fake news in Thailand, however, appears to assume a direct connection between any forms of false information, and damage to public interests in all cases – either by causing injury to the public, or by endangering national security.
Due to a long history of polarised politics in Thailand, the decision whether to accept or reject falsehoods in the public discourse is not solely a legal issue, and instead touches upon all layers of society. It is a matter of time until the legal framework for dealing with fake news is revised with clear and precise definitions, and clear provisions on what types of falsehoods justify criminal prosecution. In the meantime, the first priority for law- and decision-makers should be to reflect on the systemic attributes of fake news, which in turn raises a question about how the public sphere really operates in the age of social media. As explained in this post, an exclusive focus on national security would only risk impeding the capacity of the public to remain or become well-informed, and to hold accountable those public or private institutions that mediate and govern various forms of communication online.
Posted by Pattamon Anansaringkarn.
Pattamon Anansaringkarn is based at the Faculty of Law, University of Hong Kong. Her research focuses on the theories and policies underlying the regulation of information and data in cyberspace, with a particular focus on ‘fake news’ on social media. She can be reached at pattamon (at) connect.hku.hk.
British Association of Comparative Law 