Photo courtesy of IFEX
A public conversation on criminalising disinformation has re-emerged in Sri Lanka. The government recently announced that it was considering new proposals for a law to curb false and misleading statements. This conversation raises critical questions about the importance Sri Lankans attach to democratic values such as free speech and our willingness to put the fate of those values in the hands of the state. The conversation also comes at a time when the need for safeguarding those values in Sri Lanka cannot be greater.
The value of free speech
What does free speech actually mean? We have a tendency to present a caricature of this value. We often equate it to the ability to offend or insult people, or to lampoon and make fun of public figures. Free speech does entail some of those things. But it is a mistake to reduce the value of free speech to those things.
Free speech, or the freedom of expression, is not a particularly glamorous thing. It is essentially the oil that lubricates the engine of democracy. The right to vote, to convey an opinion, to receive information, to receive reasons for a decision, to organise associations, to express oneself in art, song, dance, theatre, film and to hold government to account – all of these ordinary, routine activities tied to citizenship – are founded on the premise that each of us has the freedom to express ourselves.
There is no democratic society without freedom; there is no freedom without free speech. It’s as simple as that.
The debate on criminalising disinformation is ultimately about what we value in a society. There are plenty of societies – and some that appear to be doing fairly well, economically speaking – that are not founded on freedom. So we can debate whether freedom is essential for human flourishing or not. But that’s a separate debate. The debate in Sri Lanka, I imagine, is premised on the understanding that Sri Lanka is still committed to democracy and some semblance of freedom.
Discussions on criminalising disinformation often feature the term ‘fake news’. The term is terribly unhelpful. But we now have some vague understanding of it. Two observations can be made about this term. First, the broad definition of ‘fake news’ captures ‘disinformation’, but these two concepts are not quite synonymous. I will explain what I mean in a moment. Second, ‘fake news’ is certainly not confined to traditional ‘news’ content alone, as every Internet user is now a source of ‘news’. Those traditional boundaries are now breached.
Recall that this debate is on ‘criminalisation’. We are not merely talking about censuring or criticising disinformation. We are talking about imposing criminal sanctions, which would usually entail putting people behind bars. Such sanctions should be applied only when the harm caused by the relevant activity is extremely severe. So, for instance, the very question ‘should we criminalise disinformation?’ is quite troubling, because it fails to understand that disinformation can entail a lot of things.
Figure 1 depicts the universe of ‘false content’, which can loosely correspond to what we call ‘fake news’. We can disaggregate this universe, and determine what the proper response should be in terms of dealing with specific types of false content. In doing so, we could define the proper role of the state. Some false content may not be particularly harmful. For example, spreading a rumour about the existence of the Loch Ness Monster is unlikely to harm anyone. Such false content can be classified as ‘misinformation’. The proper response to such content is usually to ignore it, and avoid amplifying it. False content that is or can be harmful may be classified as ‘disinformation’. For example, false content claiming that COVID-19 vaccines are ineffective or dangerous can cause actual harm, as the refusal to vaccinate could lead to the spread of the disease. Such false content is the type of content that requires a response.
Disinformation needs to be countered. Countering disinformation typically involves fact checking, counter messaging, and discrediting sources. But some forms of disinformation need sharper responses. In essence, the response needs to be commensurate with the level of harm anticipated by the disinformation.
Disinformation that encourages people to discriminate others needs to be censured through more severe sanctions than just counter-messaging. For example, campaigns that claim that Muslim businesses mix sterilisation pills in the goods sold to their customers need to be countered through more stringent means. Such disinformation campaigns can result in discrimination towards Muslims. If a media channel or site disseminates such information, there may be a justification for a limited role for the state to play. It could censure the institution, and in the event of repeat violations, even suspend a relevant operational license, or block access to such channel or site.
There is also the type of disinformation that defames individuals, or falsely accuses them of an offence. The egregious disinformation campaigns against Dr. Shafi, and lawyer Hejaaz Hizbullah spring to mind. Apart from actively countering such disinformation, the state has a specific duty to act with restraint, and not hastily act on such false allegations.
Finally, there is the type of disinformation that acts as a precursor to, or actually incites, violence. For example, spreading false rumours that a community is arming itself to attack people, and then instigating people to pre-emptively attack that community, can lead to actual violence. Such disinformation entails very serious harm, and justifies the severest response. It is in this domain – and only in this domain – that criminal sanctions may be appropriate.
Disinformation entails a complex variety of false content. Not all of such content should be criminalised. In fact, only a very small portion of disinformation – content that actually incites violence – should be criminalised. In this context, ‘should we criminalise disinformation?’ is the wrong question to ask. The question is ‘what types of disinformation should we criminalise?’.
Excess and inaction
Why be restrained when it comes to criminalising disinformation? The simple answer is that freedom, and therefore democracy, will be irreversibly damaged, if we attempt to criminalise all forms of disinformation. This concern drove criticism of Malaysia’s 2018 ‘fake news’ law, which was eventually repealed. Malaysia has once again criminalised certain types of disinformation relating to COVID-19 through a temporary emergency law. Yet this new law is also attracting heavy criticism.
A broad domain of disinformation is already criminalised under Sri Lankan law. For instance, section 98 of the Police Ordinance criminalises spreading false reports with the view to alarm the public and cause panic.
The need for restraint in criminalising disinformation is evidenced by Sri Lanka’s own experience. Sri Lanka’s approach to dealing with disinformation is mixed with excess and inaction. On the one hand, we have witnessed an excessive crackdown on allegedly false content relating to COVID-19. Ordinary citizens have been arrested for allegedly disseminating false information relating to the pandemic. In each case, the actual severity of the harm caused by the disinformation remains in doubt. Even if some harm arises out of such disinformation, incarcerating the suspects is a disproportionate response.
Yet the problem is not just one of proportionality. It also concerns the state’s power to make itself the sole arbiter of what is true or false. These recent arrests have to be understood as part of a wider trend in restricting free speech and democratic accountability in the country. They come at a time when space for public criticism and expert opinion crucial to scrutinising the state’s policies on COVID-19 appears to be narrowing. The line between ‘disinformation’, and ‘disaffection towards the state’ becomes blurred, as criticism is framed as ‘false’ and quickly absorbed into the domain of disinformation. In this context, restrictions have even been imposed on government servants. The Ministry of Health recently issued a circular threatening disciplinary action against any ministry official who publicly criticised the government’s policies and administrative procedures. Similarly, Chamila Jayasinghe, an Assistant Commissioner of the Land Settlement Department, was recently arrested for sharing a Facebook post criticising the government over deforestation.
On the other hand, Sri Lanka’s law on incitement to violence has not been deployed to hold perpetrators to account. Section 3 of the International Covenant on Civil and Political Rights Act clearly criminalises advocacy of hatred that constitutes incitement to violence. But it is yet to result in a single conviction against perpetrators of such incitement. Such inaction is a feature of the state’s response, and not merely an issue concerning a particular government. For example, in 2018, a Muslim-owned restaurant in Amparai was falsely accused of mixing sterilisation pills in food, and such disinformation directly led to anti-Muslim mob violence in the area. Yet the previous government failed to hold any person to account.
In this context, the question needs to be asked: can we trust the state to act in good faith?
The Sri Lankan state’s track record of excess and inaction means that it now lacks the moral authority to enhance the domain of criminal law on disinformation. A conversation on whether or not to introduce further criminal law on disinformation is highly inappropriate in a context where existing laws are either abused or ignored, depending on who the suspect might be. Over the past few years, successive governments have deployed speech laws such as the ICCPR Act against citizens for legitimately exercising their free speech. Yet these laws are conveniently ignored when militant groups target minorities. So we have a serious problem of good faith when it comes to state authority to restrict free speech in this country. In this context, the last thing citizens should be doing is giving the state more power to control speech.
The state can of course regain public trust by responding to disinformation in a proportionate manner. It must actively censure disinformation that encourages discrimination; it must show restraint when confronted with disinformation that falsely accuses innocent individuals; it must be decisive when disinformation can lead to actual violence. Above all, the state must refrain from exploiting existing criminal laws to stifle legitimate criticism. Only through a radical reordering of its approach to free speech can the state regain public trust. Until then, every proposal on criminalising disinformation should be resisted.
 Some definitions distinguish misinformation and disinformation based on whether the user ‘intends’ to cause harm. Yet intent is an unhelpful element in distinguishing between the two concepts, as intent is often difficult to objectively assess.