Safaricom’s memo announcing Bob Collymore’s passing on spread like fire. My first reaction was “this must be fake”. A few hours before, a fake Ipsos poll had been circulating as well as a fake assassination plot letter.
How can we differentiate truth from falsehood? Fake news is no news…and is not new. The mystery and misery of lying has accompanied human nature since the Garden of Eden. We have a weird desire to inject anything good with an evil dose.
The term “Fake News” was already in use more than 250 years ago. The Merriam Webster dictionary cites ‘fake news’ from two American newspapers.
“Secretary Brunnell Declares Fake News About His People is Being Telegraphed Over the Country.” —Cincinnati Commercial Tribune 7 Jun. 1890.
“The public taste…has no genuine appetite for ‘fake news’ such as were served up by a local syndicate a year or two ago.” —The Buffalo Commercial (Buffalo, NY), May 2, 1891.
In 1782, Benjamin Franklin wrote a news piece in a Boston newspaper purporting that the British had hired Native Americans to scalp colonists. He wanted to rally support for the American revolutionary war. The lie was widely believed. Unfortunately, it triggered racial hatred in a society already prejudiced against the true land owners, the Native Americans.
Fake News for all
A few years ago, I explained that new technologies have accelerated the speed at which fake news spread. Technology has made lying easier, faster and more credible. Fake news has become a major trait of our generation.
In the past, lies spread by word of mouth. Today, fake news spreads like fire. It is vital to take extra care to ensure that the greater population can ascertain what is true from what is not.
Countries are at pains to deal with deceit. The more democratic a society, the more damaging fake news is. Electoral results depend on how much manipulators master the art of deceiving the masses.
The response of Malaysia to lies
Malaysia was one of the first countries in the world to have a fake news law known as the Anti-Fake News Act (AFNA). This law proved to be controversial; it was designed by the old regime to curb dissenting opinions.
When a new government came into power, it tried to repeal it by tabling the Anti-Fake News (Repeal) Bill 2018 in Parliament. The repeal was rejected by the senate which was led by the former regime.
The AFNA defines fake news as news, information, data and reports that are wholly or partly false. It penalises the spreading of fake news with fines of up to $123,000 or six years in jail.
The AFNA has been under stern criticism from dissenters. They claim it overreaches and it was designed to curb the right to free speech ahead of the general elections in Malaysia.
One of my former brilliant students, Tevin Gitonga, tells me that only one person has been convicted under the AFNA – a Danish citizen who posted that the Malaysian Police took 50 minutes to respond to a shooting incident, on social media, when they had really taken 8 minutes. He was sentenced to one month in prison as he could not raise the fine of 10,000 ringgits (around Sh245,000).
Singapore joins the battle for truth
Singapore has also reacted to the fake news menace. The Government recently passed a Fake News Act which came into force five weeks ago. The Protection from Online Falsehoods and Manipulation Act (POFMA) protects civilians against fake news.
Critics argue that POFMA poses a serious threat to civil liberties; there is a huge challenge on how to go about implementing the rules, especially on how to access encrypted messages such as WhatsApp.
According to the POFMA, the government determines what is fake news and imposes jail terms of up to 5 years. The use of fake identities and accounts attracts harsher punishments with fines of up to $550,000 (Sh55,000,000) and jail terms of up to 10 years.
The law gives the minister in charge the power to determine what fake news is. Most critics argue that this threatens freedom of expression and speech.
Liberal France jumps in to limit liberty
France could not be left behind. In November 2018, France passed a Fake News law that empowers judges (when requested by candidates) to stop the spread of fake news during election campaigns. This law also allows the French authorities to suspend any foreigner who may be spreading fake news regarding elections.
The law further states that the citizens have the right to be informed in a clear manner how their data is being used and outlets must declare their source of income when promoting election related material.
Offenders face up to 1 year in jail or a fine of up to 75,000 Euros (Sh7 million). Critics of the Act state that it gives the government power to control speech and thus may curtail the right to free speech.
The effects of the law have already been felt. Since the law took effect, Twitter changed its own rules and forbade political advertising on its platform in France altogether.
German perfection cannot be compromised
Germany has also passed the Network Enforcement Act which applies to any social media site with more than 2 million users. The law requires companies to take down any information (including fake news) that violates any of the 22 criminal statutes in the German criminal code. This includes fake news and hate speech.
Lack of compliance may mean a fine of 500,000 to 5 million euros (Sh58 million to Sh,575 million) depending on the rule they have broken and the impact on society. Interestingly, this has led to excessive censorship as social media companies are unsure of what should be considered fake news and hate speech.
It appears fake news is the most worrying modern disease. You may be as liberal as France or as conservative as Singapore. The scary bit is how to balance access to free speech and access to information with truth and the definition of fake.
In such liberal times as the ones we live in, where everything seems to be allowed and relative, defining ‘fake’ may become the first objective truth. Who will dare? Governments, social media companies or citizens?
Dr Luis Franceschi is Dean – Strathmore Law School. [email protected]