Case Studies
Malaysia
An emergency law was adopted in one day, on March 11, 2021, without public commentary. It outlawed publication or dissemination of "fake news" on the pandemic or other emergencies in the country. Criminal liability was possible even for corporations. The law obliged citizens to allow police access to traffic data and computerized data upon request. Information only had to be wholly or partly false to trigger liability, without establishing a standard about what was false discretion lay entirely with the government. The decree that announced the law, has ended and, hence, many of the concerns about it have been resolved.
Thailand
A "fake news" order under the emergency decree was abruptly adopted without clear standards and failed to ensure the public could understand the restrictions it imposed. The order was also applied arbitrarily. Thanks to the Thai courts, along with outcries and advocacy against the order by embassies, civil society, U.N. agencies and media associations, the government decided to revoke the order for the present.
Cambodia
The laws applied in Cambodia are even more vague. One could be prosecuted for "incitement to commit a felony" by disseminating "fake news" .There are ongoing mass trials of persons charged with "incitement to commit a felony", many of whom have connections with the political opposition to the government. People have been sent to prison for exercising their free speech rights.
Vietnam
A "fake news" law adopted in Vietnam in February of 2020 is similarly vague and increased administrative penalties for dissemination of "fake news" about COVID-19. Under this law, the government has exerted significant control over the media. Many are afraid to express themselves on the internet, as a result.
Situation in Hong Kong
The government is considering a "fake news" law. While not ruling out criminal sanctions, officials have stated that criminalizing conduct would be considered as a last resort. Journalists are quite concerned however, because they have historically been quite outspoken and there is no assurance the "fake news" law would not be used to suppress the press.
The Hong Kong approach to doxing developed since the 2019 protests. A variety of people experienced doxing; the initial targets were primarily police accused of brutality against protestors. Instead of developing a legislative response, the Hong Kong government proceeded with a civil injunction which was issued against "Persons who unlawfully or willfully conduct themselves"in a fashion that discloses confidential and private information about another. The injunction was granted without dispute because no one wished to identify themselves as such a defendant to appeal the decision. The order was widely drawn up and then amended to require intent to harass, intimate or similarly aggressive behavior. With the injunction order now in place, any person found to be in violation of it can be held in contempt of court and fined or imprisoned, including people who help others to violate the order. The injunction stopped a lot of doxing of police officers. Doxing of judges and judicial officers led to another injunction. The doxing of private citizens has led to an amendment to the Privacy Ordinance allowing for up to five years in prison for doxing. It is unknown how the defenses built into the law and this new amendment will play out.
Other broad restrictions have developed over concerns about "fake news" and doxing, as well. Electors' names and addresses may not be published in election registries.
This allows for greater risk of voter fraud. An exception was created for journalists, allowing courts to grant access to such information for journalists, but even when access is granted, copying isn' t permitted. Similar limitations have been placed on such information as license plate numbers and company records, even if this information is necessary to enforce legitimate interests, for example, a creditor seeking financial information on a debtor.
Transparency is essential and government officials should know that too.
It is the bar association' s role to remind the executive and legislative branches of the need to protect such legitimate interests. This is especially true now in Hong Kong, when there is no opposition holding office in the legislature.
Situation in Philippines
Election misinformation and disinformation and trolls gave rise to serious concerns among the public and triggered a legislative response. These were highly organized "fake news" efforts, structured in part with paid and in part volunteer participants. The paid positions were for chief architects of disinformation, anonymous influencers who translated that information into viral posts and fake account operators who helped create the illusion of engagement and perception that the disinformation was widely adopted. The volunteer organizers were made up of a politicians'fans and the public who took on those messages and shared them further.
A law was adopted in May 2020, that made it a crime to spread false information regarding the pandemic. Arrests were effected without warrant and people were charged, even after the emergency ended. That law has since expired, but cyber libel can still be asserted under the Cybercrime Prevention Act. The cybercrime law and traditional libel laws for off-line libel, which has been on the books since the 1930s, are materially different in two key ways:
- The potential prison term (six years for cyber libel and six months for offline libel), and
- Prescriptive term for restricting defendant's conduct (12-15 years was suggested by the trial court in one recent case, versus one year for ordinary libel).
In the area of doxing, a law was adopted in 2012 regarding data privacy, which entitles individuals to seek the taking down of personal information that has been disclosed without their consent. It is quite narrow, however, in that it only applies to personal information about individuals, does not apply to the exercise of journalism or use for artistic or literary purposes and it only applies to personal information controllers and processors. Penalties can be for 1-5 years, but there have been no successful prosecutions to date.
The Philippines has another law imposing criminal penalties for gender-based online sexual harassment.
Gender must be shown to be the basis for the crime. The prohibited conduct is defined as conduct targeted at a specific person that "causes or is likely to cause" another mental, emotional, or psychological distress, fear for the personal safety of an individual or acts of sexual harassment. Conduct can include sharing information about the victim or impersonating the person online, positing lies about the victim to harm their reputation or filing false abuse reports to online platforms.
New legislative proposals to address "fake news" and doxing were mentioned, but they are not likely to be adopted, at least anytime soon.
Finally, it was noted that there are other legal bases to restrict "fake news" and doxing: (1) Tort claims under the 1949 Civil Code (Arts. 219-23, 26, 32-33, 2176 and 2180); and (2) the rights of intellectual property rights holder to enjoin conduct of persons misusing their copyrighted or trademarked information.
