Criminal law not the solution to the problem of disinformation
On 12 July 2019, the New Macau Association (NMA) started a petition calling for the withdrawal of Article 25 of the draft Civil Protection Law (CPL) of Macau. On the same day, the Macau government announced the presentation of a revised text of Article 25 to the Legislative Assembly (information in Chinese and Portuguese). Although, the new version of Article 25 has a more precise description of the intention component of the offence, in my view, the NMA’s petition for withdrawal stands regardless of the revision.
The use of criminal law to address the problem of disinformation is not a general practice internationally. Despite Macau government’s attempt to refine Article 25 to bring the wording closer to the laws of other jurisdictions about causing public panic, the use of criminal law is not in the mainstream of public policies tracking the problem of disinformation.
The discussion on the control of the impact of false information should be situated in the context of public policies concerning “disinformation” rather than the criminal laws of a few countries. There is no good equivalent of the word “disinformation” in Chinese. “Disinformation” may be confused with “misinformation”. Both disinformation and misinformation refer to false, inaccurate or misleading information. Misinformation means the type of false information not intended or not understood to cause harm. Disinformation means the type of false information designed, presented and promoted to intentionally cause public harm for profit”.
Disinformation is a global issue. Macau is not the only place in the world implicated by the problem of disinformation. Almost all countries in the world have experienced the proliferation of disinformation in a variety of settings. The phenomena of disinformation have received attention from not only national governments but also supranational organisations. The United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression published a declaration on Freedom of expression and ‘fake news’, disinformation and propaganda” in 2017. The declaration has no direct legal force but offers an impactful interpretation of the right to freedom of expression under international law in relation to disinformation. The following paragraphs are relevant to the idea of criminalising the dissemination of disinformation.
(e) Consideration should be given to protecting individuals against liability for merely redistributing or promoting, through intermediaries, content of which they are not the author and which they have not modified
Standards on Disinformation and Propaganda
(a) General prohibitions on the dissemination of information based on vague and ambiguous ideas, including “false news” or “non-objective information”, are incompatible with international standards for restrictions on freedom of expression […] and should be abolished.
Nothing in the UN declaration on disinformation encourages the use of criminal law to address the problem of disinformation. Rather, the measures against disinformation recommended by the UN Special Rapporteur are focused on empowering journalists to critically expose disinformation and increasing the transparency of information sources.
The European Commission (EC) published “A multi-dimensional approach to disinformation — Report of the independent High-level Group on fake news and online disinformation” in 2018. Similar to the UN declaration, the EC report stresses on improving the transparency of news sources and empowering internet users and journalists to seek true information and debunk disinformation. The types of information only mentioned in the UN declaration and the EC report as “illegal” are “defamation”, “hate speech” and “incitement to violence”.
The mere enumeration by the Macau government of international examples of criminal laws prohibiting “false information” or “information causing public panic” does not give strong support to Article 25 since there is no need to “resort to” the criminal law to mitigate the problem of disinformation. The so-called “legal loophole” for “false information at the time of a sudden public incident” would only make sense in the oblivion of the overarching public policies on disinformation recommended by experts from the UN and the EC.
Article 25’s Political Potential
The motive behind Article 25 is well understood as the Macau government’s response to the circulation of potentially disruptive false information when Macau was hit by powerful typhoons in the past two years. The effect of Article 25 is confined to the period in which “immediate prevention” or a higher alert is in force. However, the types of “sudden public incident” that qualify for an alert under Article 6 of the proposed CPL should not be taken lightly. CPL covers four types of incidents: “natural disaster”, “accident”, “public health incident” and “social security incident”. The “social security incident” is defined as “incidents of internal security and economy” and security incidents “arising from or related to external factors”. The definition of “social security incident” is broader than the other three categories.
Article 25 has the potential to apply to a demonstration. The Macau government might issue a prevention alert if a demonstration were considered a “social security incident”. The scope of “internal security” is a tricky question in Macau. In the past, the Macau government has notoriously denied the entry of journalists, social workers, lawmakers and scholars to Macau for the reason that they might “pose a threat to internal security”. The Macau government has a track record of using “internal security” grounds in highly questionable circumstances.
Although violent acts during demonstrations are extremely unlikely to occur in Macau, the recent development in Hong Kong has shown us how the government’s own mismanagement of political debate could escalate into a matter of internal security.
Furthermore, the presence of real threat would not be required for the entry of Article 25 into effect. The proposed CPL would give discretionary power to the Macau government to declare bring Article 25 into force based on the prediction of a threat. For the declaration of “immediate prevention”, the presence of some “factors” for “the occurrence of distress” would suffice. Article 25 had the potential to cause a chilling effect on reporting public reactions to a political controversy under prevention alerts. Taking the background information into account, Macau residents should not underestimate the impact of Article 25 in conjunction with “social security incident”.