Legislating lies: What are the laws criminalising misinformation?

Emilia (Year 12)

Editor’s note: Year 12 student Emilia has aspirations to become a journalist. She has written this short but informative article for publication in the GSAL Journal to help hone her journalistic writing skills. CPD

Technology is advancing every day, with the use of AI and spread of ‘fake news’ within the media becoming an increasingly more prevalent topic globally; it is crucial to understand the danger that misinformation and the misappropriation of these resources poses to the modern political climate.

Politicians themselves are at times to blame for the spread of misinformation, from Republicans across the Atlantic with Reform UK, there are multiple instances of individuals spouting statistics with no data to support their claims, misusing AI to justify themselves, thus polarising the political sphere, threatening democracy with instances becoming more frequent. Now, with the law in all nations having to adapt alongside the development of such technology to ensure justice for those effected by hate speech and misinformation, the questions arise: How do countries legislate against the spread of misinformation? How do they distinguish between redundant statements and those that are recalcitrant?

As expected, the laws of each country reflect the nature of each’s constitution within the context of their individual philosophical values, attitudes towards freedom of speech and geo-political history. I will use the examples of American and UK law to reflect on how various nations distinguish between misinformation and hate speech:

The United States

The US constitution upholds the US’ core values of autonomy and individualism, the first amendment of the US constitution reflects this; the core principle of this amendment guarantees the freedom of speech, even protecting misleading information and hate speech if it does not fall into categories such as defamation, fraud or incitement of violence. However, more liberal states such as New York, choose to individually legislate the abuse of freedom of speech on a case-by-case basis, most famously with the landmark New York Times Co. v Sullivan defamation case. However, a more objective piece of legislation is the 18^th US Code No.25- which criminalises the spread of misinformation about serious crimes such as bomb threats or hijackings, specifically when it could pose a risk to public safety with penalties ranging from large fines to imprisonment.

Overall, in comparison to other nations the US’ approach to misinformation in general is lenient, thus as academics we should always fact-check and analyse the authority of sources which are American in origin; this is because if misinformation goes unaddressed it poses great risks to the stability of the sphere the information targets.

The United Kingdom

The UK has a slightly stricter approach to legislating the spread of harmful misinformation, with this too reflecting our values as a nation: toleration and respect for the law; therefore, balancing free expression with public safety and equality. More specifically, the sweeping piece of legislation known as the UK’s Online Safety Act 2023, places responsibilities on tech companies to protect users against harmful content, with the False Communications Offence now criminalising the intended spread of false information to cause “non-trivial psychological or physical harm” and additionally criminalising the spread of misinformation to incite hate or violence. Thus, unlike the US, making a clear distinction between redundant and harmful misinformation, setting boundaries in place that in theory prevent the disastrous impacts of the abuse of freedom of speech.

However, what is not inherently illegal, is the use of false or embellished statistics to reinforce and broadcast a political bias. Therefore, given this we should once again cross-reference and analyse a resource to assess its reliability and its authority, to remove the potential for us to be victims of biased of misinformation. Thus it is not surprising that broadsheet newspapers like the BBC have sub-organisations dedicated to investigating and fact checking information for the benefit of the public. EV