Deliberate online falsehoods: an issue of checks and balances

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A select committee has been formed by Parliament to study deliberate online falsehoods, and given the government’s strong rhetoric highlighting Singapore’s susceptibility to instability and unrest as a result of such falsehoods, it is likely that some measures will soon be introduced to deal with them.

Law and Home Affairs Minister K Shanmugam is correct in saying that certain types of deliberate online falsehoods can have damaging effects. Like any other society in the world, we have “fault lines” that can be easily exploited, whether deliberately or not, to cause tension and conflict. Proponents of free speech should be wary of being unqualifiedly opposed to his proposal, since there are situations where it is justified to curb free speech – a classic example would be when someone deliberately shouts “fire” in a crowded theater for fun, causing a stampede that may injure or kill people.

Even John Stuart Mill, the famous liberal philosopher who was a strong free speech advocate wrote in his essay On Liberty that because making a statement to an angry mob outside a corn dealer’s house that corn dealers “starve the poor” threatens the life of the corn dealer, it causes an illegitimate harm and must be prevented.

However, I propose that the government, and the select committee, should look into six important points when considering any policy dealing with ‘deliberate online falsehoods’.

1. First, a clear definition of what a falsehood is.

It must exclude equivocal claims, even when they may be false. For example, a claim that “we have a bad government” or “we have a good government” are not claims that can easily be proved true or false. There are good justifiable reasons why either might be true or false; the fact that many people might properly consider either one false should not make them falsehoods.

Furthermore, the government must consider very carefully if it should include expressions of opinion that do not make a claim to truth. For example, if someone claims that “I believe X is doing Y, but I have no proof”, it is unclear whether this person should be prosecuted. He may be properly criticized for making a poor argument or an unjustified statement, but for him to be prosecuted is quite another matter.

2. Second, a clear definition of what ‘deliberate’ is

By ‘deliberate falsehoods’, the government could mean falsehoods that the distributor knows are false. This is the safest and least restrictive position to take.

Alternatively, it could include the spread of falsehoods where the distributor was reckless to its veracity – meaning that he/she did not bother checking if it was true or not, especially where he/she accepted the possibility that it could be false. This however, might be a controversial position to take, since it places a burden on people to check the truth of anything they share online, which is unmanageable.

One problematic area would be the spreading of a falsehood which the distributor honestly believed was true. Would that come under the scope of the law? If so, many newspapers (even our mainstream newspapers) may end up facing prosecution. Also, what test will be used to distinguish between an honest belief in the truth of a statement, and wilful ignorance?

Hence, there are a range of ‘tests’ which can be used, each giving the law a different scope and level of intrusiveness. This must be decided on very carefully, and the government should err on the side of being less, rather than more intrusive, since any law must be applied equally to all (including mainstream media) in order to maintain the integrity of the legal system.

3. Third, a clear definition of what ‘spreading’ means

Does it include private online conversations, or social media posts that are limited only to a group of friends? What if X makes a private post online spreading a falsehood, and person Y makes the falsehood public? Should X be liable, especially if X expressly told Y that this information was not to be made public?

Does it include relaying the falsehood? For example, will a person who ‘shares’ a post which contains a deliberate falsehood fall under the scope of the law, especially if he/she suspected that there could be a chance that the information was false? Should it matter if the ‘relayer’ honestly believed the information was true?

4. Fourth, outcome’ safeguards to prevent overreach

I hope that the government’s intention in curbing deliberate online falsehoods is not in fact to curb them for their own sake, but as a means to a politically justified end: that is, to protect society from information that could lead to unrest, tension and conflict within our community.

Hence, the government should not be allowed to prosecute people who spread any deliberate online falsehood, but only those whose falsehoods are reasonably likely to cause unrest or incite violence between members of the community. 

For example, if a con-artist spreads a message online offering to sell concert tickets he in fact does not have with the intention of absconding with the money, he is spreading a deliberate falsehood online. However, this con-artist should not be prosecuted under any law that the law minister wishes to introduce to curb with deliberate online falsehoods, since this falsehood has no impact on the social fabric of our community, which is the justification for his legislative proposal in the first place. Similarly, a person who spreads a deliberate falsehood about any political party in order to undermine them should be excluded from the scope of any new law.

These two types of people – the con-artist and the political saboteur – will face justice through other laws that exist (e.g. fraud, defamation etc.). They should not be dealt with using a blanket rule against deliberate online falsehoods. Otherwise, I argue, the government’s justification for any possible legislative proposal will be overreached.

5. Fifth, the ‘discretion’ safeguard

The ultimate decision as to whether or not a person has spread a deliberate online falsehood should be left to the courts. This is because, the judiciary is a more politically neutral institution than the government, and has an arguably more consistent body of jurisprudence, and is therefore better placed to make such decisions, especially given that such a decision involves imposing criminal penalties on someone for having exercised their freedom of expression in a certain way.

6. Burden of proof

Finally, the burden of proof should be on the prosecution to prove beyond reasonable doubt that a falsehood was spread deliberately, and was in fact reasonably likely to cause unrest or incite violence between members of the community. There should be no reversal of this burden – it should not be the statement maker who has to prove that the elements of the offence are not satisfied

Conclusion

It is not necessarily wrong that the government is considering legislative proposals to curb “deliberate online falsehoods”. However, any such restrictions need to be:

  1. Clearly defined
  2. Limited in scope
  3. Curtail free expression to the minimum extent required to achieve said politically justified outcomes

It is my wish that deliberate online falsehoods that cause significant and unjustified harms be curtailed, but also that the government introduces a sound policy with the appropriate checks and balances against itself. Otherwise, it is appropriate that the general public puts pressure on the government to ensure that it does.

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Photo credit: Mediacorp

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