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Criminalizing fake news the way forward?

Lewis Sanders IV
December 14, 2016

German lawmakers have called for legal action against the production and distribution of fake news. But digital rights groups warned of the harrowing effects it could have online, including censorship.

hands at a keyboard
Image: picture-alliance/empics/D. Lipinski

Politicians, news consumers and social media entrepreneurs have turned their attention to the subject of fake news, in large part due to its alleged influence during the US presidential election in November, with headlines that included prominent Democrats - Hillary Clinton's campaign chairman among them - running a child sex ring out of a Washington pizza shop and the pope endorsing Donald Trump.

However, a group of psychologists in 2012 had already published a study on the persistence of misinformation, warning that it could have "fairly alarming implications in a democracy."

"At an individual level, misinformation about health issues - for example, unwarranted fears regarding vaccinations or unwarranted trust in alternative medicine - can do a lot of damage," said the study's lead author Stephan Lewandowsky, an Australian psychologist at the University of Bristol.

"At a societal level, persistent misinformation about political issues can create considerable harm. On a global scale, misinformation about climate change is currently delaying mitigative action," he added.

While social media giant Facebook created a system to flag "false news" stories, authorities have struggled with how to approach the growing momentum of misinformation online.

Weighing legal options

German lawmaker Patrick Sensburg, a member of Chancellor Angela Merkel's conservative Christian Democrats (CDU), said in an interview with DW on Tuesday that the government needs to consider "ratcheting up the statutory offenses" against fake news producers and "take action against the people who run these websites."

Several German politicians have called for legal measures to combat the growing phenomenon online, with Deputy Chancellor Sigmar Gabriel of the center-left Social Democrats (SPD) saying "we must stand together" against fake news and "social [media] bots."

Sensburg said such legal measures are not about "curtailing freedom of expression," and instead aim to prevent efforts to "destabilize the media landscape and the population's trust in the state."

He also noted that if the perpetrators form part of state-sponsored efforts to undermine society and democratic institutions, then they could be prosecuted under anti-espionage legislation.

German lawmakers have warned that Moscow may likely attempt to undermine the electoral process ahead of the 2017 Bundestag elections after reports that Russia fostered fake news in the run-up to the US election to boost support for Donald Trump.

Ansgar Heveling, a CDU politician, told the "Passauer Neue Presse" newspaper that such intrusions into Germany's electoral process are dangerous, warning that "Russia has an interest in splitting and unsettling our society."

However, the lawmakers have yet to unveil detailed measures to combat fake news and disinformation on the internet, solely proposing increased pressure on social media platforms to delete content. But attempts to criminalize actions on social media or curate content available to those on such platforms has received widespread criticism.

'Not through new restrictions'

In the wake of the US election, Facebook CEO Mark Zuckerberg said "there is more we can do" besides "enabling our community to flag hoaxes and fake news" after receiving pressure to combat the phenomenon.

However, Dunja Mijatovic, the OSCE's representative on the freedom of the media, wrote earlier this month that "no one should be penalized for social media activities such as posting and direct messaging unless they can be directly connected to violent actions and satisfy the test of an 'imminent lawless action.'" 

"Issues related to social media activities should be addressed exclusively through self-regulation, education and literacy, not through new restrictions," she said.

European Digital Rights Initiative (EDRi) Executive Director Joe McNamee told DW that social media companies such as Facebook should not be given a mandate to select the content on its platform.

"EDRi would strongly oppose making private, profit-oriented companies into arbiters of truth and the legislators, judges, juries and executioners of our freedom of communication," McNamee said.

Former US National Security Agency (NSA) contractor turned whistleblower Edward Snowden told Twitter CEO Jack Dorsey on Tuesday that the strategy against fake news shouldn't revolve around censorship.

"The problem of fake news isn't solved by hoping for a referee but rather because we as participants, we as citizens, we as users of these services help each other," Snowden said.

"The answer to bad speech is not censorship. The answer to bad speech is more speech. We have to exercise and spread the idea that critical thinking matters now more than ever, given the fact that lies seem to be getting very popular," he added.

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