Disinformation for Disinformation Law?
Misleading Justifications for a New “Rumour Offence” in Macau
Article 25 of the proposed Law of Bases of Civil Protection (the Civil Protection Bill) of Macau which seeks to criminalise the acts of elaborating on or disseminating “unfounded or biased news concerning risks, threats and vulnerabilities, in the event of sudden incidents of a public nature”, commonly referred to as the “Rumour Offence”, is disturbing. The New Macau Association (NMA) is aghast at the Macau authorities’ use of misleading information on the legislation of other countries in the justification of criminal penalties for the dissemination of false information. The NMA is deeply concerned that Macau residents would unknowingly and easily breach Article 25 of the Civil Protection Bill because of the overly vague intention requirement for the Rumour Offence.
English translation of Article 25
Crime against public security, order and peace in sudden incidents of a public nature
1. Who, after declaring the immediate or superior state of prevention referred to in Article 6, and for as long as he remains for his own benefit or that of a third party, or for any other reason that may disrupt the cessation or the relief of the declared state or public tranquility, to elaborate, disseminate or transmit false, unfounded or biased news concerning risks, threats and vulnerabilities, in the event of sudden incidents of a public nature, as well as, regarding the operations of response, is punished with penalty of imprisonment up to 2 years or fine up to 240 days.
2. The conduct referred to in the previous number shall be punished by imprisonment for up to 3 years, in case of any of the following circumstances:
1) Effectively cause social panic or public unrest, or be likely to cause serious social panic or public unrest;
2) Causing effective constraint, obstruction or restriction in the action of the Public Administration authorities, individuals or third parties;
(3) be liable to create the erroneous conviction that such information originates in the public services or entities of the civil protection structure;
4. The author of the information shall be, in accordance with Article 13, an integral part of civil protection operations.
Misrepresentation of international examples
In the Concluding Report of Public Consultation on the Civil Protection Bill (the Consultation Report), the authorities claimed that “many countries and regions” impose criminal sanctions on the dissemination of rumours. The NMA has to point out that, in the Consultation Report, the presentation of the provisions on restricting false information from Indian, Swiss and French laws in support of the proposed Rumour Offence is highly misleading. Support from international examples for the Rumour Offense is weak.
Indian Information Technology Act 2000 (IT Act)
Article 66A (Publishing offensive, false or threatening information) of the Indian IT ACT has been ruled unconstitutional in 2015 by the Supreme Court of India. The Indian court concluded that Article 66A of the IT ACT was “arbitrarily, excessively and disproportionately invades the right of free speech”.
Swiss Penal Code
Article 258 of the Swiss Penal Code provides that “any person who causes fear and alarm among the general public by threatening or feigning a danger to life, limb or property is liable to a custodial sentence […]”.
The cases that fell into Article 258 of the Swiss Penal Code would also fall entirely into Articles 294 and 295 of the Macau Penal Code.
French Penal Code
Article 322–14 of the French Penal Code provides that “[t]he communication or revelation of any false information with a view to inducing a belief that any destruction, defacement or damage dangerous to other persons will be or has been committed is punished by […]”. “The same penalties apply to the communication or disclosure of false information creating the belief that an incident has occurred [causing] the needless intervention of the rescue services”, according to the same article.
Article 322–14 should be read in its entirety. The purpose of Article 322–14 of the French Penal Code shall be read as the same as that of Articles 294 and 295 of the Macau Penal Code. However, French law further criminalises the communication or disclosure of false information irrelevant to dangers to other persons but lead to “needless intervention of the rescue services”.
Swiss and French provisions have a much narrower scope objective compared to Article 25 of the Civil Protection Bill. Except for the situations in which simply “needless intervention of the rescue services” is caused, the acts punishable under Article 258 of the Swiss Penal Code and Article 322–14 of the French Penal Code would also be punishable under Articles 294 and 295 of the existing Macau Penal Code.
The examples of the French law and the Swiss law do not provide strong support for the creation of a new offence about rumours in Macau law. Their objective is to punish those who impart knowingly false information about dangers to persons or property rather than control the spread of rumours as described in the Consultation Report.
Overly vague intentions
Although, in the Consultation Report, the demonstration of an intention (mens rea) to “disrupt the cessation or the relief or cause public panic” is required to establish a Rumour Offence, the NMA considers that the actual wording of Article 25 of the Civil Protection Bill does not provide the same requirement of intention.
“… ou por quaisquer outros motivos que possam perturbar a cessação ou o alívio do estado declarado ou a tranquilidade pública… ”
“或其他 可 對终止或緩解該狀態或公眾安寧造成擾亂的 目的… ”
“… or for any other motive that may disrupt the cessation or the relief of the declared state or public tranquillity …”
Any (other) motive that may disrupt means whether or not an accused had an intention to cause disruption is irrelevant. Article 25 of the Civil Protection Bill, if adopted as law, will impose an obligation on Macau residents to assess the impact of the information which they want to share with or forward to their acquaintances. A resident might get into trouble if he or she shared, without malicious intent, a piece of apparently harmless information which unexpectedly caused a disruption or was interpreted by the police as potentially disruptive in the disaster relief efforts.
The NMA believes that Article 25 provides low certainty over what information could be or could not fall foul of the law. Impose a heavy burden on the residents to foresee effectively the impact of a piece of information is unreasonable. The introduction of the Rumour Offence will inevitably create a chilling effect on the residents’ exercise of freedom of expression. Therefore, NMA will submit the above comments to the Legislative Assembly and request the authority to specifically address a series of controversies during the phase of detailed discussion of the Civil Protection Bill, or else Article 25 should be withdrawn.
