Criminalising Disinformation: on Anti-Fake News Legislation in Southeast Asia
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Criminalising Disinformation: On Anti-Fake News Legislation in Southeast Asia Billie Trinder Submitted in partial fulfilment of the degree of Bachelor of International and Global Studies (Honours) Department of Government and International Relations University of Sydney This work is substantially my own, and where any part of this work is not my own, I have indicated this by acknowledging the source of that part or those parts of the work. Word Count: 19, 526 (including footnotes, excluding bibliography and appendices) SID: 450475519 2 Acknowledgements During an undoubtedly strange year, this thesis was made possible by the support of several people. Firstly, to my parents, Tracey and Christian Trinder. Your support during this year and over the course of my education means the world to me. Thank you so much. Thank you too to my wonderful friends. Your encouragement and confidence in me this year has been humbling. Thank you to my supervisor Aim Sinpeng – I am so grateful for your guidance and expertise. Finally, thank you to Lachy Anderson. You have been my rock this year. 3 Abstract In 2016 it was revealed that the Brexit referendum and US presidential election were both targeted by sophisticated online disinformation campaigns, and in the years since states around the world have scrambled to respond to this new threat. Many have chosen to criminalise the creation and dissemination of fake news a crime despite warnings from international organisations and experts that these ‘fake news laws’ will restrict speech and stifle dissent. Southeast Asian states in particular have broadly chosen to take this controversial approach. This thesis seeks to answer why this is. I take an analytic narrative approach to this question, using a combination of Tsebelis’ veto player theorem and elements of historical institutionalism to interrogate two case studies: the Philippines and Singapore. Comparison of the cases reveals that institutional configuration and the extent to which avenues for dissent exist in each political environment are critical to the success of proposed anti-disinformation legislation. The study also underscores the potential impacts of such legislation, where restrictions on free speech increase the likelihood of similarly restrictive legislation passing in the future, creating a dynamic of increasing returns. 4 Table of Contents Abstract 4 Chapter 1: Introduction 6 Global Policy Implications 8 Freedom of Expression 9 Southeast Asia 10 Alternative Approaches 12 Chapter 2: Literature Review 13 Fake News 13 Legislating Fake News 15 Emergence of Fake News Laws in Southeast Asia 16 Analytic Narratives 18 Tsebelis' Veto Player Theorem 20 Discussion and Conclusion 21 Chapter 3: Methodology 23 Analytic Narrative 23 Applying Tsebelis' Veto Player Theorem 25 Chapter 4: The Philippines 26 Veto Players in the Philippine Institutional Arrangement 27 Bills Filed 31 Key Issues 34 Preferences 39 Potential for Policy Change 44 Discussion 46 Conclusion 51 Chapter 5: Singapore 52 Preferences and the Legislative Process 53 Veto Players in the Singaporean Institutional Arrangement 57 Discussion 58 Conclusion 60 Chapter 6: Discussion and Conclusion 61 Findings 61 Contribution and Suggestions for Future Study 65 Conclusion 66 Appendices 67 Bibliography 72 5 Introduction Since the shocking revelation that the 2016 United States presidential election and the Brexit referendum of the same year were targeted by sophisticated online disinformation campaigns, online “fake news” has been at the forefront of political debate. However, while the issue of online disinformation is widely considered a critical threat to public life around the globe, the jury is still out on how to combat it. Existing scholarship divides theorists into two distinct camps. The first is interested in combatting online disinformation via technological innovation (for example by using machine learning algorithms to identify ‘fake news’), and the second looks to address the issue at the individual level by facilitating media literacy and critical thinking skills. Burkhardt openly ponders: “can technology save us?” or “can we save ourselves?”.1 On the subject of legislative measures, “it is currently too early”2 to assess their effectiveness, however scepticism abounds. Commentators recognise several obstacles, including difficulty defining ‘fake news’ and the global dimension of cyberspace “vis a vis the territorial boundaries of legislation”.3 States’ actual responses have been incredibly varied. As of this year, Poynter identifies twelve broad categories of response,4 including the establishment of “fake news taskforces” to guard elections from foreign influence in countries such as Australia and Mexico and media literacy campaigns in Nigeria. As evident in Figure 1, states’ approaches to the problem of online disinformation are not significantly correlated with their approach to 1 Joanna Burkhardt. Combatting Fake News in the Digital Age (Chicago: American Library Association, 2017), 14, 22. 2 Gulizar Haciyakupoglu et al. Countering Fake News: A Recent Survey of Global Initiatives (Jurong West, Singapore: S. Rajaratnam School of International Studies 2018), 20. 3 Haciyakupoglu et al. “Countering Fake News”, 14, 20. 4 Daniel Funke and Daniela Flamini. A Guide to Anti-Misinformation Actions Around the World (Florida: The Poynter Institute 2019). 6 disinformation, with the exception of Southeast Asian states. While other regions have taken incredibly varied approaches to the issue (or none at all), in Southeast Asia states overwhelmingly take a law enforcement and/or a legislative approach to address the issue (eight of eleven states). From this observed pattern, a question naturally arises: Why is this so? In essence, my thesis is an attempt to answer it. Fig. 1 Misinformation Actions Around the World (Map by Daniel Flunke. In A Guide to Anti- Misinformation Actions Around the World, (Florida: Poynter, 2020). Examining why and how anti-fake news legislation passes is important because while the impacts of these laws have been studied, how they come about has not. Therefore, by investigating the question, “under what conditions are fake news laws passed in Southeast Asia?” this thesis makes an empirical contribution. In the following sections of this 7 introduction, the importance of addressing this question will be explored in greater depth. The second chapter is a literature review and provides an overview of historical institutionalism (the relevant theoretical approach), fake news, and fake news legislation in Southeast Asia and in general. The third chapter will explain and justify the methodological approach taken in this thesis, before the 4th and 5th chapters investigate the trajectory of “fake news laws” in Singapore and The Philippines and present research findings. Finally, the discussion and conclusion chapter will summarise findings and suggest potential directions for further research. Global Policy Implications The most obvious reason this topic is worthy of study is the significance of these laws both for the global political landscape, and their potential to negatively impact human rights. While Southeast Asia has “led the charge” legislating against online falsehoods, in recent years the number of states enacting this type of legislation has “surged around the world”.5 In the months between June 2017 and May 2018 alone at least 17 nations proposed or approved laws that would “restrict online media in the name of fighting ‘fake news’ and online manipulation”.6 2020 has only seen this trend accelerate. In addition to existing pressure to act against ‘fake news’, the COVID19 pandemic – which has been accompanied by a corresponding digital outbreak of disinformation7 - has seen the demand for policy action finally boil over in many states, with new legislation passed in no less than six jurisdictions in Europe while it was at 5Fernando Nuñez. “Disinformation Legislation and Freedom of Expression.” UC Irvine Law Revew 10, no. 2 (2020) 784-797. 6 Adrian Shahbaz. "Freedom on the Net 2018: The Rise of Digital Authoritarianism” (Washington DC: Freedom House 2018). 7 Roxana Radu. "Fighting the ‘Infodemic’: Legal Responses to COVID-19 Disinformation." Social Media and Society, No. 1 (2020). 8 the centre of the pandemic.8 Presently the U.S., the European Union and Brazil all presently debating potential options for regulating the internet, making research into this type of legislation especially timely. Freedom of Expression However, while in many cases such measures have been passed with significant public support, the international community has expressed serious reservations about the potential for these laws to cause harm to human rights. In particular, human rights organisations and political commentators expressed concern that ‘fake news’ laws may be used by governments as a means to silence opposition and quash dissent.9 That free speech “is a necessary precondition to the enjoyment of other rights”10 including the right to vote and freedom of association makes this an especially important issue. While legislation enacted in some states is clearly far less restrictive than in some others, the wave of ‘fake news laws’ raises genuine fears that governments will exploit the issue of online disinformation in order to “achieve ulterior objectives”.11 Additionally, where such legislation is hurriedly drafted in response to what is in many states a pressing issue, critics suggest that “vague, and mostly broad definitions” of key terms may expose it to abuse.12