Democratic Progressive Party (DPP) Legislator Chiu Chih-wei (邱志偉) on Saturday last week proposed extending the scope of the Social Order Maintenance Act (社會秩序維護法) to allow for detentions of up to three days for people who spread fabricated news on the Internet.
After the proposal was roundly criticized by netizens, Chiu responded by saying that it was designed to ensure that the law is better “defined.”
What does he mean by this?
How to mitigate the negative effect of fake news is a thorny issue that the legal profession, media, politicians and the tech industry are all grappling with — a problem for which there is no easy solution.
A group of legislators, including Chiu, have submitted a bill to increase the penalty for those found guilty of propagating fabricated news online. If this bill is passed by the legislature and then implemented, what would be the effect?
Putting to one side individuals who intentionally create fake news to cause trouble, the greatest impact of the proposed amendment would be to discourage every Taiwanese netizen from reposting any news or information online. What would be the effect of this proposed change to the law?
According to Article 63 of the act, people engaged in “spreading rumors in a way that is sufficient to undermine public order and peace” shall be punishable “by detention of not more than three days or a fine of not more than NT$30,000.”
Since the definition of “spreading rumors” that are “sufficient to undermine public order and peace” has always been somewhat open to interpretation, this might mean that netizens would refrain from posting their opinions online for fear of falling foul of the law.
Chiu and the other similarly minded legislators who proposed this bill are not, despite what they have claimed, trying to “clarify” the wording of the law to reduce its fuzziness. Instead, they intend to add an additional clause to Article 63 of the law.
The proposed clause would make it a crime punishable by detention of up to three days or a maximum fine of NT$30,000 for netizens who have “failed to verify the contents of their posts” and in doing so “spread fake news or fake information via the Internet that is sufficient to undermine public order and peace.”
The phrase “spreading rumors” originates from Council of Grand Justices’ Constitutional Interpretation No. 509, which has already proved problematic. In a libel situation where the content of disseminated information is “untrue” and has caused harm to an individual’s reputation, the interpretation provides for a defense on the grounds that there is a “reasonable cause for the disseminator of the information to have believed that it was true.”
Now let us turn to the wording “undermine public order and peace.” Where a person is found guilty of undermining public order and peace — even if no specific damage has been caused to an individual’s reputation or legal interests — the law stipulates that without exception, the guilty party should be detained for a maximum of three days.
This could probably be seen as an excessive restriction on freedom of speech. However, as the law stands, it could be understood to mean that there must be a “malicious intent to spread rumor” for an offense to have been made under the act.
This means that we can dispense with the wording “sufficient to,” as well as the direct action of reposting or forwarding fabricated news or information.
However, the proposed clause introduced by the legislators contains the phrase “failed to verify” as a condition for a criminal act having taken place, in addition to the wording “fake news, fake information or rumors.”
The scope of this new wording is broader than the current “rumor.” This means that any “mistaken untruth” within a news story could be defined as fake news or fake information.
Furthermore, the broad scope of the proposed wording would be particularly applicable to Internet media, which would mean that the onus would be on every Internet user first to verify the veracity of a post or article before reposting or forwarding it to others.
If this only were to apply to print and broadcast media, it would perhaps be reasonable. However, the proposed new clause would apply to all Internet users and would thus have a far-reaching effect.
The question must be asked: Which Internet users “verify” the truthfulness of news and information before forwarding it to others everyday?
Why have the proponents of this bill choose the word “verify?” How would it be possible to prove that a user did actually verify the content before forwarding or reposting it?
Fake news is not desirable. However, the drastic measures proposed to manage the phenomenon are utterly unconscionable.
It is hard to stomach the bare-faced cheek of these legislators — many of whom are themselves guilty of transmitting baseless rumors — to have suggested such a monstrous bill.
Bruce Liao is an associate professor of law at National Chengchi University.
Translated by Edward Jones
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