Fake news usually refers to false information or propaganda published under the guise of being authentic news, and are usually propagated through social media or word of mouth. According to section 2 of the Malaysian Anti Fake News Bill of 2018, “fake news” is said to include any news, information, data and reports, which is or are wholly or partly false, whether in the form of features, visual or audio recordings or in any other form capable of suggesting words or ideas. Also, section 39 of the Criminal law of Lagos State also states that “any person who publishes or reproduces any of statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace, knowing or having reason to believe that such statement, rumour or report is false, is guilty of a misdemeanor and liable to imprisonment for two years.”

In Kenya, The Computer and Cybercrimes Bill, 2017 which was signed into law in 2018 criminalized cyber crimes including fake news, cyber bullying and counterespionage. The enactment of laws against fake news has been criticized as being an infringement on the right to freedom of speech and expression. It is however a major conundrum for lawmakers, as fake news has become more prevalent in modern times rather than “genuine news”. In 2018, the first case of punishment against fake news was pronounced on where a Danish citizen was convicted for providing inadequate information on social media about the response time of the police to an emergency situation. It must be noted that under the Malaysian law, offenders could be fined up to 500,000 ringgit and up to six years imprisonment.

In the US, the courts often made use of the Bradenburg test, which was established in the case of Brandenburg v Ohio, where the court established that for a speech to be prohibited, it must be directed at inciting or producing imminent lawless action AND likely to incite or produce such action. This test was also applied in the case of Hess v Indiana, that since there was no evidence, or rational inference from the import of the language, that his words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the State on the ground that they had a ‘tendency to lead to violence. It was also made us e of in the case of NAACP v Claiborne Hardware Co where the court, in protecting the freedom of speech, also stated that “Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech.” It then raises the question; does the government have the right to restrict or prohibit the right to freedom of expression, or regulate the information disseminated?

In China, Article 6 of the Interim Provisions on the Administration of Internet Publishing states that “engaging in Internet publishing activities may only be done through permission. No unit or individual may engage in Internet publishing activities without permission. No group or individual may interfere with, hinder or disrupt Internet publishing entities in engaging in Internet publishing activities in accordance with the law.” Also, Article 20 of the Regulations on the Administration of Television Dramas provides that “no television drama may be distributed, broadcast, imported or exported unless it has been examined and granted a “Television Program Distribution License” by a Television Program Examination Organ established by a broadcast television executive department at the provincial level or higher.”

These laws, among other laws in China have made the country one of the most critics in terms of the freedom of expression. These laws however, can be seen as a way of combating the menace of fake news on social media. social media has become a tool to propound fake news to individuals who are ill-informed, and therefore hold on to the information without sourcing for its credibility. Fake news became more prominent in 2016, due to the amount of inaccurate news being spread through the media, and led to both the Democrats and Republicans trading blames back and forth. However, both Facebook and Google have faced major backlash in recent times as being avenues for the propagation pf fake news, most especially Facebook, who were accused once of influencing the US election.

In conclusion, fake news has become a trending phenomenon around the world, with the easy and unlimited access to the internet, as well as the access to information. Thus, individuals who are not able to source for the credibility of the information are misled and often end up making poor decisions at the end of the day. Although, fake news can be seen as a medium of freedom of expression, however a thin line has to be drawn to separate fake news from legitimate news, as most fake news against the government could end up inflicting major damage to the government, as well as providing an insurmountable challenge for the government.

Ayomide ‘Toba Eribake is a 400 level student of the Faculty of Law, University of Lagos. He is a Sports Law enthusiast, and also has interests in Human Rights, ADR. He also loves researching and reading various subjects of interest.

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