"Fake news" laws: How should disinformation be regulated?

Begin the lesson by challenging your students to name all 11 countries in Southeast Asia: Brunei, Burma (Myanmar), Cambodia, Timor-Leste, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand, and Vietnam. Have them identify similarities between the countries in the region. This can include shared cultural artifacts like food and clothing, languages, religions, climate, tourist destinations, festivals, etc.

Besides culture, geography and history, Southeast Asian countries also share many similarities in terms of digital media habits and experiences, including the problem of disinformation. Go over the latest digital media trends in select Southeast Asian countries using infographics from Reporting Asean. Afterwards, segue to introducing the lesson topic and objectives by asking the students why disinformation is a specifically challenging problem to solve for countries in the region.  

Regulating disinformation in Southeast Asia

When it comes to making sure that the food, medicines and cosmetics we consume are safe and of good quality, the Food and Drug Administration or FDA is the government agency that is responsible. It is a regulatory body that licenses, monitors, and regulates health products to protect and promote the public's right to health. Some counter-disinformation advocates say that we need a regulatory body like the FDA that will regulate the information and media content that circulate in our digital platforms. They argue that regulation is an important intervention that can address the supply side of disinformation and other pollutants in our information ecosystem. 

However, the topic of regulating disinformation is never clear-cut and continues to be a subject of lively debate. Can disinformation really be regulated? Who and what should be regulated? Who should perform the regulation, and can they be trusted? How strictly should regulations be implemented? How can we ensure that regulatory interventions do not trump our fundamental rights to free speech and expression?

In finding the right solutions to disinformation, it is important to note that there is no one-size-fits-all approach. The best kinds of interventions–including the idea of regulation–must be culturally appropriate and responsive to the complex dynamics of the phenomenon. Prof. Jonathan Ong (2021) wrote that in Southeast Asia, communities are distrustful of regulations on media and technology because “governments in the region have a long history of weaponizing the law—from libel to blasphemy to monarchy defamation to media ownership—to harass or even jail journalists, media owners, and activists expressing dissent against state leaders.” 

So we must ask, How should disinformation be regulated in countries where government leaders are considered the biggest bad actors, a case that is mostly true in Southeast Asia?

Sources: 

• Ong, J.C. (2021, January 12). Southeast Asia’s Disinformation Crisis: Where the State is the Biggest Bad Actor and Regulation is a Bad Word. Social Science Research Council. https://items.ssrc.org/disinformation-democracy-and-conflict-prevention/southeast-asias-disinformation-crisis-where-the-state-is-the-biggest-bad-actor-and-regulation-is-a-bad-word/
• Reporting Asean (2023). IN NUMBERS: Southeast Asia’s Online Behaviour. Reporting Asean. https://www.reportingasean.net/in-numbers-a-look-at-southeast-asias-online-behaviour

Discuss ‘fake news’ laws that are either proposed or are already being implemented in different countries in Southeast Asia. While going over each case study, ask the students to analyze what they find common among the laws, and what this says about how challenging it is to regulate disinformation. Use the following guide questions:

• Do you think strict regulations can really deter people from spreading mis-/disinformation?
• How are these laws being abused (or can be abused) by governments?
• Do you agree that governments should have the power to oblige tech companies to take down content upon their request?
• Are there ways to fix these laws so that chances for abuse are minimized?

‘Fake news’ laws in Southeast Asia

‘Fake news’ laws have become the common term for strict regulations introduced by governments with the intent to curb the spread of disinformation online and to preserve national security. These laws often define the act of spreading false information through social media as a punishable act. Moreover, many of these laws oblige tech companies to comply with government requests for removal and/or flagging of ‘fake’ or ‘false’ content found in their platforms.

• Thailand’s Computer Crime Act (CCA): In January 2021, Thailand's Ministry of Digital Economy and Society (MDES) filed a Computer Crime Act (CCA) lawsuit against a former opposition party leader over his Facebook livestreamed statement on the lack of transparency of government’s COVID-19 vaccine procurement. MDES reasoned that the party leader's comment was ‘false criticism’ and created misunderstanding among people. CCA has also been used to prosecute Facebook, Twitter and Google over their failure to comply with government requests to take down “illegal posts” insulting the monarchy.
• Singapore’s Protection from Online Falsehoods and Manipulation Act (POFMA): Since the inception of the Protection from Online Falsehoods and Manipulation Act (POFMA) law, there has been four cases of opposition politicians being asked to put a banner on their social media posts which states that it contains false information. There has been concern that the law was passed to silence critics as several civil society activists and independent media have also been sanctioned via the POFMA law.

The Philippines has its own versions of ‘fake news’ laws–several bills pending in the Congress and a temporary legislation that was implemented during the COVID-19 pandemic. 

• Anti-False Content Act: Proposed by Sen. Vicente “Tito” Sotto III in July 2019 during the 18th Congress, the bill seeks to prohibit the creation and dissemination of false content through the internet and social media platforms. The proposed law will impose imprisonment and fines ranging from P300,000 to P2,000,000. Moreover, the Department of Justice Cybercrime office will have the power to direct individuals and owners of platforms to take down content that contains false information. (Link to actual bill)
• Senate Bill No. 1296: Filed by Sen. Jinggoy Estrada in the current 19th Congress last September 2022, this bill seeks to classify ‘fake news’ as a cybercrime under the Cybercrime Prevention Act which has long been criticized as a threat to press freedom as online libel imposes a penalty that is one degree higher than that provided in the country’s Revised Penal Code. (Link to actual bill)
• Bayanihan to Heal as One Act: Republic Act No. 11469 was signed into law by former president Rodrigo Duterte in March 2020 at the height of the COVID-19 pandemic. This includes a provision that criminalizes people who make and spread false information. In less than a month since its implementation, 47 persons were arrested for alleged violations of the provision. (Link to actual bill)

Sources: 

• Asia Centre and Council of Asian Liberals and Democrats (2020). Defending Freedom of Expression: Fake News Laws in East and Southeast Asia. https://asiacentre.org/defending-freedom-of-expression-fake-news-laws-in-east-and-southeast-asia/ 
• Elloran, Z. (2022, December 8). Why journalists, media literacy advocates oppose anti-fake news bills. Bulatlat. https://www.bulatlat.com/2022/12/08/why-journalists-media-literacy-advocates-oppose-anti-fake-news-bills/ 
• Quilinguing, K. (2019, September 23). UP experts call for more substantial bill vs ‘fake news’. https://up.edu.ph/up-experts-call-for-more-substantial-bill-vs-fake-news/ 

Curbing disinformation or silencing critics?

The main concern with ‘fake news’ laws is its impact on freedom of speech and expression. It was observed during the COVID-19 pandemic that criticisms directed at governments’ mismanagement of the health emergency or questioning of their policies and directives became treated as ‘disinformation’ and were dealt with through criminalization. This has resulted in increasing trends of self-censorship by citizens, a chilling effect on journalists, and the shrinking of civic spaces. 

• Self-censorship: the act of refraining from expressing something usually out of fear or pressure
• Chilling effect: phenomenon where individuals or groups refrain from engaging in expression for fear of running afoul of a law or regulation.
• Shrinking of civic space: Open civic space means that people are able to exercise their civic rights and freedoms, such as freedom of expression, freedom of association and peaceful assembly, and the right to participate in public life. The shrinking of civic space refers to the upward global trend to restrict this space previously provided to independent civil society. This can look like restrictions on press freedom, restrictions on unions and protests, harsh criminal sentences for protestors (...)” (Human Rights Defenders and Shrinking Civic Space: a guide for Financial Institutions, 2023)

Source: de Meillac, F. & Owens, A. (2023). Human Rights Defenders and Shrinking Civic Space: a guide for Financial Institutions. Shift. https://shiftproject.org/resource/civic-space-financial-institutions/

Transparency, Accountability, and Fairness

If regulatory interventions are easily abused and weaponized against civic freedoms, should the idea of regulating disinformation be rejected entirely? Instead of blanket regulations like the existing ‘fake news’ laws that are being implemented and/or proposed in different Southeast Asian countries, experts say that governments should advance solutions that focus on ensuring greater transparency, accountability, and fairness. 

Regulation should not be narrowly confined to “fixing the content” on social media platforms (e.g., content moderation, takedowns, platform bans); it could also pertain to regulating processes and practices involved in the production and dissemination of disinformation. 

Here are some policy recommendations from experts:

1. Establish greater transparency in how political campaigns are funded, managed, and executed:
   1. The Commision on Elections (COMELEC) should come up with more specific guidelines on campaign expenditure disclosures, specifically for online materials
   2. Politicians should be obliged to disclose the variety of their digital campaign executions through their Statement of Contributions and Expenditures (SOCE) forms; it must include how they mobilize paid influencers, the online accounts they maintain aside from the official ones, and how they conduct micro-targeted advertising, among others
   3. Digital workers engaged in disinformation-for-hire who wish to report the perils of their jobs should be provided with appropriate support
2. Enforce transparent systems of cooperation between social media companies and their local collaborators (e.g., COMELEC, fact-checkers, and election watchdogs):
   1. Inclusive oversight committees should be formed so that social media companies are informed of local standards and concerns around ‘harmful’ and ‘inauthentic’ content without compromising free speech or falling into political partisanship
   2. Standards in content moderation and de-platforming must be applied to content and actors across the political spectrum

Sources: 

• Ong, J., Curato, N. & Tapsell, R. (2019). Tracking Digital Disinformation in the 2019 Philippine Midterm Election. New Mandala. https://www.newmandala.org/wp-content/uploads/2019/08/Digital-Disinformation-2019-Midterms.pdf
• Chi, Cristina (2023, August 3). Hidden hate and lies: How ‘covert’ political influencers ran the show of 2022 elections. PhilStar.com. https://www.philstar.com/headlines/2023/08/03/2285968/hidden-hate-and-lies-how-covert-political-influencers-ran-show-2022-elections

Play the Lesson 5 video explainer to recap the main takeaways of the lesson. 

Wrap up the session by asking students if they think it is possible to completely eradicate disinformation online. Whether it is through government regulation, media literacy programs, or tech-based solutions, what steps should humanity take to move closer to the possibility of completely eradicating disinformation online? 

After an engaging discussion about addressing disinformation through government regulation, you may proceed to Lesson 6 which explores the role of technology in disinformation. In this lesson, students will imagine the future of humankind amid the ongoing “techlash”. Check out the complete list of Disinfo Hub lessons here.