A mod­ern-day ‘1984’


Re­mem­ber Ge­orge Or­well’s Min­istry of Truth? In his dystopian novel “1984,” its pur­pose was to dic­tate and pro­tect the gov­ern­ment’s ver­sion of re­al­ity. Dur­ing the Cold War, Or­well’s book was banned be­hind the Iron Cur­tain, be­cause read­ers per­ceived the novel as an al­le­gory for their own re­pres­sive regimes.

It was a se­ri­ous crime to dis­trib­ute in­for­ma­tion de­fam­ing the Soviet so­cial and po­lit­i­cal sys­tem. Such crim­i­nal laws were widely used by the Krem­lin to si­lence dis­si­dents, hu­man rights ac­tivists, re­li­gious move­ments and groups fight­ing for in­de­pen­dence in the Soviet re­publics. Sim­i­lar laws were on the books in East Ger­many, Poland and other East­ern bloc coun­tries.

Thank­fully, to­day this land­scape is much changed, but in­creas­ingly there are dis­turb­ing echoes of the past. Amid a de­bate about the ris­ing in­flu­ence of fake news and the dan­ger it poses to the po­lit­i­cal and so­cial or­der in the West, demo­cratic politi­cians in Europe have pro­posed sanc­tions — and even prison terms — for those found re­spon­si­ble for dis­tribut­ing false in­for­ma­tion.

Euo­pean Union Jus­tice Com­mis­sioner Vera Jourova has warned tech com­pa­nies such as Face­book and Twit­ter that if they don’t find ways to elim­i­nate hate speech and com­bat fake news, a law man­dat­ing ac­tion may be nec­es­sary. Com­mis­sioner An­drus An­sip re­in­forced that threat last month, al­beit in softer lan­guage, prompt­ing so­cial-me­dia gi­ants and tra­di­tional me­dia to an­nounce a flurry of ini­tia­tives aimed at com­bat­ing fake news.

Italy’s an­titrust chief, Giovanni Pitruzzella, has said that E.U. coun­tries should set up a network of gov­ern­ment-ap­pointed bod­ies to re­move fake news and po­ten­tially im­pose fines on the me­dia. Pitruzzella doesn’t hide his po­lit­i­cal agenda — he wants to tar­get his op­po­nents on the pop­ulist left and right. “Post-truth in pol­i­tics is one of the driv­ers of pop­ulism, and it is one of the threats to our democ­ra­cies,” he told the Fi­nan­cial Times.

In Ger­many, politi­cians ea­ger to counter Rus­sian med­dling and pop­ulist move­ments in up­com­ing par­lia­men­tar­ian elec­tions have is­sued sim­i­lar calls. Jus­tice Min­is­ter Heiko Maas ar­gues that au­thor­i­ties need the power to im­pose prison terms for fake news on so­cial me­dia. “Defama­tion and ma­li­cious gos­sip are not cov­ered un­der free­dom of speech,” Maas said. “Jus­tice au­thor­i­ties must pros­e­cute that, even on the In­ter­net. Any­one who tries to ma­nip­u­late the po­lit­i­cal dis­cus­sion with lies needs to be aware [of the con­se­quences].”

It is un­der­stand­able that lib­eral democ­ra­cies are deeply wor­ried about dis­in­for­ma­tion, which tears at the fab­ric of plu­ral­is­tic demo­cratic so­ci­eties. John Stu­art Mill fa­mously ar­gued that free speech would help ex­change “er­ror for truth” and cre­ate “the clearer per­cep­tion and live­lier im­pres­sion of truth, pro­duced by its col­li­sion with er­ror.” Yet this jus­ti­fi­ca­tion weak­ens con­sid­er­ably if lies and dis­in­for­ma­tion be­come in­dis­tin­guish­able from truth. In such an en­vi­ron­ment, “Democ­racy will not sur­vive a lack of be­lief in the pos­si­bil­ity of im­par­tial in­sti­tu­tions,” po­lit­i­cal sci­en­tist Fran­cis Fukuyama re­cently wrote. “In­stead, par­ti­san po­lit­i­cal com­bat will come to per­vade ev­ery as­pect of life.”

That is in­deed a night­mare sce­nario to be avoided. But us­ing le­gal mea­sures to counter dis­in­for­ma­tion is likely to be a cure worse than the dis­ease. One does not need to go back to the Cold War to worry about what hap­pens when gov­ern­ments be­come the ar­biters of truth.

In the past two years, Egypt has sen­tenced six Al Jazeera jour­nal­ists to death or long prison terms for, among other things, al­legedly spread­ing false news. In 2013, Gam­bia — un­til the re­cent ouster of Yahya Jam­meh, one of Africa’s worst dic­ta­tors — in­tro­duced a pun­ish­ment of up to 15 years’ im­pris­on­ment and hefty fines for those who spread “false news,” cit­ing a need for sta­bil­ity and the preven­tion of “un­pa­tri­otic be­hav­ior” and “treach­er­ous” cam­paigns. Rus­sia, iron­i­cally the source of so much of the dis­in­for­ma­tion men­ac­ing lib­eral democ­ra­cies, uses broad and vague anti-ex­trem­ism laws to pro­hibit news that the Krem­lin views as pro­pa­ganda — in­clud­ing prison sen­tences for so­cial-me­dia users who in­sist that Crimea is part of Ukraine.

Of course, Europe’s es­tab­lished democ­ra­cies have lit­tle in com­mon with the Soviet Union or other il­lib­eral regimes. But the le­gal tools pro­posed by Euro­pean politi­cians to sup­press fake news sound alarm­ingly like those used by author­i­tar­ian gov­ern­ments to si­lence dis­sent. This is dan­ger­ous. Not only are such mea­sures in­com­pat­i­ble with the prin­ci­ple of free speech, but also they set prece­dents that could quickly strengthen the hand of the pop­ulist forces that main­stream Euro­pean politi­cians feel so threat­ened by.

Europe may soon find it­self with pop­ulists such as France’s Marine Le Pen and the Nether­lands’ Geert Wilders with real power. Such lead­ers would draw the line be­tween fake news and free speech very dif­fer­ently than main­stream politi­cians — per­haps aim­ing them at the sup­pos­edly cor­rupt es­tab­lished me­dia rather than web­sites, blogs and so­cial me­dia traf­fick­ing in “al­ter­na­tive facts.” It is also un­likely that the in­creas­ingly il­lib­eral gov­ern­ments of Poland and Hun­gary would agree with the Euro­pean Com­mis­sion or Ger­man Chan­cel­lor An­gela Merkel on what con­sti­tutes false in­for­ma­tion or fake news.

And while the First Amend­ment pre­vents the U.S. gov­ern­ment from overtly lim­it­ing press free­dom, it’s clear that Pres­i­dent Trump’s def­i­ni­tion of fake news is vastly dif­fer­ent from what his op­po­nents or the me­dia have in mind.

Above all, rather than strength­en­ing es­tab­lished me­dia in­sti­tu­tions, ban­ning fake news might very well un­der­mine them in the eyes of the pub­lic. If al­ter­na­tive out­lets are pros­e­cuted or shut down, main­stream me­dia risk be­ing seen as unofficial pro­pa­ganda tools of the pow­ers that be. Be­hind the Iron Cur­tain, nonof­fi­cial me­dia out­lets had more cred­i­bil­ity than of­fi­cial me­dia in spite of the fact that not ev­ery­thing they pub­lished was ac­cu­rate or fact-checked. The hash­tag #fak­e­news could be­come a sell­ing point with the pub­lic if it were banned rather than rig­or­ously coun­tered and re­futed.

As White House strate­gist Stephen K. Ban­non replied when asked whether press sec­re­tary Sean Spicer, af­ter making ir­refutably false state­ments, had dam­aged his cred­i­bil­ity with the me­dia: “Are you kid­ding me? We think that’s a badge of honor.”

Us­ing le­gal mea­sures to counter dis­in­for­ma­tion is likely to be a cure worse than the dis­ease.

Flemming Rose is a se­nior fel­low at the Cato In­sti­tute. Ja­cob Mchangama is di­rec­tor of the Copen­hagen-based think tank Justi­tia.


From left: French far-right pres­i­den­tial can­di­date Marine Le Pen, Pres­i­dent Trump and Geert Wilders, leader of the Dutch Free­dom Party.

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