Prison for Fake News

In Cyprus, a new legislative proposal introduces a prison sentence of up to one year and/or a fine of up to EUR 3,000.¹⁾ I argue that criminally punishing fake news is absolutely horrifying for free speech, for media pluralism, and for democracy. Criminalizing fake news is, to say the least, highly problematic for a number of reasons. It has a “chilling effect” and it causes a self-censorship by media and civil society organizations, activists and average citizens. Moreover, the concept of fake news is highly ambiguous and contested which reduces the certainty and clarity of its regulation. Furthermore, criminalizing fake speech is, in fact, counterproductive as it is not reducing the content but “often draws more attention to it.” While criminalizing fake news is normatively wrong, it is especially problematic in countries like Cyprus, which are already marred by a tainted media landscape. The country landed at place 65 out of 180 in the 2024 World Press Freedom Index of Reporters without Borders (RSF) – just after Sierra Leone and before Argentina, labelling the current state of the art as “problematic.”

Current proposal

On 3 July 2024, the Legal Committee of the Cyprus Parliament discussed a proposed amendment on the dissemination of fake news, threats, insults and obscene images online. The amendment will be presented to the Cyprus Parliament in September 2024. In this post, I only focus on the aspect of fake news. The new proposal specifically uses the terminology of fake news instead of more commonly used disinformation. However, in this post the terms disinformation and fake/false news are used interchangeably, both of them entailing the element of intent, contrary to the concept of misinformation.

Despite the fact that European and international institutions condemn the criminalization of fake news, Cyprus is not the only State of the European Union to take this route. Malta criminalizes fake news with a prison sentence from one to three months, or between three and six months if the offence results in disturbance. Hungary also punishes fake news with a prison sentence, a country which has been systematically experiencing a deterioration of the rule of law.²⁾ Hungary is ranked 72 out of 180 and it has received a score of 67 out of 180 in the RSF Index. In all said countries, the situation of the freedom of press is ranked as “problematic”. In 2021, Greece amended its Criminal Code to prohibit fake news. Human Rights Watch urged the Greek Government to immediately revoke these provisions noting that this law could be used to “punish media professionals, civil society, and anybody who criticizes or takes issue with government policies, creating a chilling effect on free speech and media freedom.” This law was finally scrapped.

The perspectives of the EU, the Council of Europe and the UN

By no means do I mean to downplay the effects of disinformation which is undoubtedly a “systemic challenge for democracies”. While disinformation is not a new phenomenon, technological advances allowing for cheap disruption in the post-truth era of the global online ecosystem of information pose challenges to societies at large. But alas! This does not mean we should be criminalising it. In fact, all major organizations that Cyprus belongs to warns us against this. Let us start with the European Union which, in recent times, has been quite restrictive with freedom of expression in relation to other forms of contested speech such as hate speech. Even so, a 2018 High Level Expert Group on Fake News and Online Disinformation established by the European Commission warned that “any form of censorship either public or private should clearly be avoided”. Rather, the experts put forth ideas such as increased transparency of online news (particularly funding sources), media literacy, research, creating tools to empowers users and journalists to address disinformation and protecting the diversity and sustainability of the European news media ecosystem. Even during the Covid-19 pandemic, the European Commission had warned that penal laws passed during that time for purposes of tackling disinformation could lead to “self-censorship and raise particular concerns as regards freedom of expression”.

Under the EU’s Digital Services Act (DSA) which came into force in 2024, very large online platforms have a duty to mitigate risks such as disinformation, assume responsibility for the actions they take and systemic risks they pose (including on disinformation). Moreover, the DSA adopts a co-regulatory framework together with the 2022 Code of Practice on Disinformation. The Code includes aspects such as financial incentives, user empowerment, fact checking and research support. In short, the EU has in place a mechanism to deal with online disinformation, with the online sphere being the central framework through which fake/false news/disinformation are disseminated through.

Further, the European Media Freedom Act, which also entered into force this year, with its rules becoming fully applicable in 2025, aims at facilitating the operation of public and private media across borders without undue pressure and taking into account the digital transformation of the media space. This is a “notable step forward in introducing the language of media freedom and protection of journalists within the corpus of EU law.” The EMFA notes that “quality media services are also an antidote against disinformation” and that silencing journalists as a result of, amongst other things, censorship and cancelling of dissenting opinions should be avoided. While the EMFA does not provide for directly applicable rights, the Cypriot parliament is urged to consider the fact that a piece of (criminal) legislation could cause journalists to self-censor themselves.

Moreover, Cypriot authorities should urgently look at the case-law of the European Court of Human Rights (ECtHR) which has underlined that laws prohibiting false information violate freedom of expression. In Salov v. Ukraine (2005), the ECtHR held that a prosecution for “dissemination of false information” under Ukraine’s election legislation violated the right to freedom of expression under Article 10 ECHR. Importantly, the Court held that Article 10 of the European Convention on Human Rights (right to freedom of expression) “does not prohibit discussion or dissemination of information received even if it is strongly suspected that this information might not be truthful.” This approach was followed also in cases against Poland involving the prohibition of false news/untrue data and information. The said case-law reflects that the prohibition of false news or disinformation is incompatible with the freedom of expression.

The United Nations also adopts this stance. Prohibiting (let alone criminally punishing) false news or disinformation is incompatible with international human rights law. In a Joint Declaration of Special Rapporteurs on Freedom of Expression of the United Nations, the Organization for Security and Cooperation Europe and the Organization of American States underlined that “there should be no general or ambiguous laws on disinformation, such as prohibitions spreading falsehoods or non-objective information.” The UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression noted that disinformation is an “extraordinarily elusive concept to define in law” and susceptible to providing executive authorities with “excessive discretion to determine what is disinformation, what is a mistake, what is truth”. As such, the penalisation of disinformation is “disproportionate” under international human rights law.

Conclusion

As underlined by the European High-Level Group on Fake News and Online Disinformation mentioned above, censorship must be avoided. Scholars such as Barata and Calvet-Bademunt have argued that disinformation must be tackled by “non-repressive mechanisms such as media ethics, communication policies, reinforcement of public service media, or promoting media pluralism.” Adopting legal provisions to prohibit disinformation/fake news and to criminalize it with the penalty, therefore, has no place in a liberal democracy. Also, the European Court of Human Rights has noted the incompatibility of such laws with freedom of expression and the European Convention on Human Rights. Moreover, there is evidence that laws such as the one proposed in Cyprus can have chilling effects on freedom of expression and media freedom. Silencing speakers can set the scene for conspiracists to turn into martyrs, while not actually making “false ideas” disappear. The Cypriot authorities must also bear in mind that the sheer propensity of the central forum through which the majority of speech is disseminated (the online world) is large and hard to regulate. In brief, sending someone to jail for fake news could open a can of worms.