In simple terms, fake news is false or misleading information presented as news. To combat fake news, we cannot just rely on regulatory framework designed for the printed press. In the past two decades, the dissemination of false news on the Internet has become an issue of great concern of Internet Service Providers. Making matters worse, fake news has not only been found on Internet sites, it has recently become prevalent on social media platforms as well as SMS/MMS and closed platforms such as WhatsApp. The allegation of election fake news in the recent American presidential election helps us gain a visionary insight into the threat posed by fake news to public interest in the digital age.
In response to the threat posed by fake news, Singapore passed the Protection From Online Falsehoods And Manipulation Act (POFMA) last year. The Act focuses on statements of fact which a reasonable man seeing, hearing or otherwise perceiving them would consider as representations of fact. The POFMA aims to prevent the online spread of falsehoods, which includes misleading information or false statements of fact. Another aim is to safeguard against the use of online platforms, particularly social media, for the communication of such falsehoods. Great credit should be given to the provisions allowing the government to use “corrective notices” as early intervention devices to eradicate or mitigate the damage caused by the publication and circulation of false news. The government can either order the individual who communicated the falsehoods to correct the falsehoods or remove the falsehoods. Any government minister can determine what constitutes a false statement of fact and take action to correct it. In fact, there is a repertoire of early intervention devices that can be used to prevent the falsehoods from jeopardizing public interest.
During the consultation period, the Singaporean government highlighted the unprecedented threat posed by online falsehoods to national security, public health/safety, racial/religious harmony and the integrity of the election process. It is painfully but indisputably true that Hong Kong is also a vulnerable city in the grip of a perverted and prevalent culture of online falsehoods. Though Hong Kong does not have racial/religious problems, it has had great difficulty in bridging the political divide between the blue and yellow camps in the past few years. Nor can we take comfort in the illusion that new immigrants from the mainland can coexist peacefully with the radical localists. Following the outbreak of violent anti-government protest in July 2019, some people have launched a massive misinformation campaign to discredit our police force in the worst allowable light. Recently, the SAR government has faced a firestorm of criticisms at its proposed mandatory COVID-19 test. Some say that there is a hidden DNA-collecting agenda behind the mandatory test. But there is no evidence to support this serious allegation. We should not allow falsehoods to endanger public health and safety. Nor should we allow falsehoods to unfairly affect election outcomes. Like Singapore, Hong Kong needs an anti-fake-news law to ban the publication and circulation of falsehoods and misinformation. I also suggest that, after taking account of local circumstances, we should use the POFMA as a model for drafting our anti-fake-news law.
It is likely that my proposal will attract criticism for the following reasons. Firstly, my proposal may be criticized for overlooking or, at least, failing to give appropriate weight to an array of existing legislation such as the newly introduced National Security Law, the Crimes Ordinance (offences under the seditious intentions in sections 9 &10) and the Defamation Ordinance that can be used to combat fake news. Secondly, it is difficult to clearly define some key terms in the proposed anti-fake news legislation. For instance, the draftsmen of the POFMA have been criticized for their failure to provide a clear definition of “false statement of fact” and “public interest”. Thirdly, my proposal seems ready to receive opprobrium for posing a serious threat to civil liberties and freedom of expression.
In response to the first foreseeable criticism, I emphasized that the early intervention devices provided by the proposed anti-fake-news law will equip the government with effective means to combat fake news on the Internet and social media platform. This criticism has not drawn the public eye closer to the complementary role played by the proposed anti-fake-news law. Over-legislation is an irrelevance. The second criticism does not get closer to establishing that the drafting hurdles can justify a neglect of our sacred need to have an effective guard against fake news. Admittedly, we may need a long consultation period to sort out these problems. But there is an urgent need to combat fake news in today’s Hong Kong. We cannot afford to play a waiting game. Finally, we should strike a balance between freedom of expression and the need to ban fake news. It is worth noting that the right to freedom of expression is not absolute. In order to protect national security and public order, the above rights can be subject to restriction (sections 8, art. 16 of the Hong Kong Bill of Rights Ordinance).
The author is a barrister and a part-time researcher of Shenzhen University Hong Kong and Macao Basic Law Research Center.
The views do not necessarily reflect those of China Daily.
