When the cry of “fake news!” is so frequently thrown from both sides of the aisle, do we really want to give political leaders the power to prosecute alleged lies?
As we consider history through the lens of free speech, a common theme emerges for the type of speech which censors build as their great “bogeymen”. These are the ideas which are so dangerous that just verbalising them is a threat to social order. From the charge of “blasphemy” in medieval times, to “slander” against the nobility, to “seditious libel” in the age of the republic, largely these each meanthe same thing. Recently, it was (and to a some extent, still is) “hate speech” where a subjective line is drawn to define when acceptable dissent ends and criminal ‘wrongthink’ begins.
But those efforts have been put on the back-burner, for now.
This election, the new speech “bogeyman” is the dreaded idea of ‘disinformation’.
If you take the time to read recent government reports, particularly the “proposals” and “discussion documents” that various Agencies, Departments, and Commissions regularly spit out, you’ll see this new “elite hysteria” is gaining momentum. These documents can be quite long, but even just a skim of their Executive Summaries gives a good idea as to where the Public Service is eager to take us- they’re remarkably consistent when it comes to the dreaded power of the common Kiwi to share their uninformed “theories” freely.
For example, the Review into the Future for Local Government’s draft report lamented that “disinformation campaigns” are “driving the trust deficit between local government and communities”. Likewise, the Department of Internal Affair’s Safer Online Services and Media Platforms proposals (a censor’s charter if you ever saw one) skirted around how its proposed “regulator” would be turned into an internet “Ministry of Truth”, but nonetheless defined harmful content as including that which “interferes in democratic processes”, and cited various other online regulations that target alleged disinformation as models for its own reform. (The Cabinet documents that began the Review were also clear about their intent for the regulations to target disinformation). Further, the Interim Report of the Independent Electoral Review had a whole section dedicated to “managing disinformation”.
Under current law, you may be surprised to hear that it is illegal under the Electoral Act to publish false statements, knowing they are false, with the intention to influence voters during the last three days of the election. Such a thing is a ‘corrupt practice’, which upon conviction can result in imprisonment and even disqualify someone from sitting as a Member of Parliament- quite a powerful piece of legislation when it can overrule an electorate’s democratically selected representative.
With advanced voting being far more common today than when the crime was first legislated and ‘disinformation’ the speech “bogeyman” of the day, it seemed only natural that the Independent Electoral Review’s recommendation to combat disinformation was to extend the law. They want the offence to cover the whole voting period. But it raises an important question: should we make telling lies a crime at all, even during an election?
Such a claim places a lot of trust in the Courts’ ability to actually determine factuality on what are almost certainly going to be hotly contested political issues. It would also take a lot of trust that such a provision would never be abused for political purposes (and who really trusts that such a provision would never be abused for political purposes?) What is “truthful” in politics is often just as much a matter of partisan viewpoints as it is based on evidence. Groups and individuals that set themselves up as these “arbiters of truth” often too quickly delegitimise themselves when their interpretations of factuality appear to exclusively serve specific political interests.
What we must do then, with a law such as this, is to imagine it in the hands of our own political enemies, whomever they may be, and ask ourselves whether we trust them with it. Do we want our elected representatives to be able to be removed from office over political views? Even the requirement of intentionality does not completely remove the risk. Many may recall the cries of “You are fake news!” by former US President Donald Trump. He was certainly happy to paint unfavourable news media as intentionally spreading lies to hurt his campaign- would our Electoral Review trust him with this kind of law?
At the end of the day, the potential for lies is the price we pay for a free and open democracy, and ultimately the truth. Yes, it may (at least temporarily) protect the people we believe are publishing falsehoods, but it also protects us from reciprocal accusations and censorship. And through time, free speech exposes those who spread falsehood by highlighting fact. Electoral “disinformation” is almost always unlike defamation, fraud, perjury or other forms of unprotected speech because it lacks objectivity and specific or measurable consequences, as it deals in political opinions.
As with many forms of ‘bad’ speech, the answer must therefore be better speech- fighting falsehoods with the truth.
At its heart, censorship does not place trust in the common citizen to be able to determine right from wrong and sees paternalist control of speech to ‘protect’ people from themselves. Democracy, however, rests on our trust in the ability for good and correct ideas to rise to the top and for the voting public, on the whole (not every person) and most of the time (not always) to choose them.
A healthy democracy is one which trusts its citizens to shrug off disinformation on their own. Let’s call this most recent “bogeyman” what it is: elite hysteria. And I’m confident, together, Kiwis will see through it.