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    Harmonisation of Anti-Fake News Legislation in ASEAN
    Harmonisation of Anti-Fake News Legislation in ASEAN
    Harmonisation of Anti-Fake News Legislation in ASEAN
    Ebook162 pages1 hour

    Harmonisation of Anti-Fake News Legislation in ASEAN

    By Robert Smith?

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    About this ebook

    This book tackles one of the scourges of our digital society, typically termed 'fake news', where false information is disseminated widely, often to promote extreme ideology or particular political views. Dr Smith picks apart the legal mechanisms used in the Association of South East Asian Nations (ASEAN) that addresses fake news. Following disc

    LanguageEnglish
    PublisherAEC Education & Training Pty Ltd
    Release dateFeb 2, 2022
    ISBN9780645156225
    Harmonisation of Anti-Fake News Legislation in ASEAN
    Author

    Robert Smith?

    Robert Courtney Smith is Associate Professor of Sociology, Immigration Studies and Public Affairs, School of Public Affairs, Baruch College, and Graduate Center, City University of New York. He is the coeditor of Migration, Transnationalization, and Race in a Changing New York (2001). He is cofounder of the Mexican Educational Foundation of New York, a 501c(3) organization.

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      Book preview

      Harmonisation of Anti-Fake News Legislation in ASEAN - Robert Smith?

      Preface

      ONE OF MY GREAT desires is to share knowledge, hence this self-published book. I also wish the book to be available as soon as possible, especially bearing in mind the significant delays in the publishing of academic literature.

      The title of dissertation on which this book is based, because of page constraints, changed from Cybercrime in ASEAN to Fake News in ASEAN. Even then the content had to be honed down again to use three sample countries, namely: Indonesia, Philippines and Thailand.

      The title of the book has been chosen to better reflect the content as it is looking at the issues surrounding harmonisation of laws in ASEAN and how harmonisation might be achieved in respect of anti-fake news legislation.

      No substantive changes have made from the that of the dissertation. Repetition has been avoided by deleting the introduction and conclusion of each Chapter. The extensive footnoting as required for a dissertation has been retained but the bibliography has been deleted. The Table of Contents has been retained but an Index has not been provided. Footnoting is in accordance with Australian Guide to Legal Citation, 4th edition.

      Chapter 1

      Introduction

      THE ASSOCIATION OF SOUTHEAST Asian Nations (ASEAN)¹ is one the regional organisations where the working language of the organisation is not the national language of any of its members but it is an official language of three.² Just understanding legal concepts in another language is a major feat! The systems of government vary between dictatorships; constitutional monarchies; absolute monarchies, parliamentary; presidential; communist; pseudo-communist. The levels of development of the ASEAN members range from least developed to highly developed.

      The use of social media is becoming pervasive around the world, especially as the cost of smart phones makes it more readily available to all levels of society. This has opened up more opportunities for computer-related crime where, crimes that once required a real presence, can be undertaken in the virtual world;³ hence the appellation – cybercrime. The simplest definition of cybercrime is a computer-related crime that uses a computer network.⁴ Probably the most wide-spread misuse of social media is participation in the cybercrime of publishing and/or spreading misinformation or disinformation, commonly called fake news. This study will assess the legislative approaches of the various member states as they seek to counter the impact of fake news. It will also investigate how such laws may be harmonised so that ASEAN has a common definition of fake news, a similar approach to prosecution of offenders and how they might cooperate. The posting and spreading of fake news in cyberspace are not constrained by international borders, so this approach is critical as the ASEAN Economic Community moves to greater integration. It will also assess the current situation in relation to cybercrime in ASEAN. The difficulty arises in relation to enforcement where the evidence moves from the physical to the electronic, requiring a different skills base for both investigators and prosecutors.⁵

      Cybercrime is a fast-growing area of crime. More and more criminals are exploiting the speed, convenience and anonymity of the Internet to commit a diverse range of criminal activities that know no borders, either physical or virtual, cause serious harm and pose very real threats to victims worldwide.⁶ The total value at risk from cybercrime worldwide in the period 2019-2023 is estimated to be as high as USD 5.2 trillion.⁷ Worldwide spending on information security was estimated to be USD 114 billion in 2018⁸ with global spending on security exceeding USD 1 trillion cumulatively for 2017 to 2021.⁹ The posting and sharing of fake news can be trivial¹⁰ or in the extreme it can lead to racial, sectarian and political tension that can result in property damage, violence and even death.¹¹ During the current (2020-21) COVID-19 pandemic the posting of fake news can have dire consequences where the promotion of unproven therapies and conspiracy theories can lead to needless victims and an increasing death toll. The difficulty for many social media users, especially in the developing world is differentiating between the truth and fake news. There are also claims that fake news has been used to influence elections in countries such as Indonesia and the Philippines, as well as in countries in the developed world.

      There are two main motivations for this study.

      Firstly, the author having attended legal conferences and worked in South and Southeast Asia over the last few years has become very aware of how much the nuances of language affect understanding. This is particularly important in a legal setting. One anecdote from a meeting with Cambodia officials in 2018 is relevant. There was discussion about particular clauses of the Cambodian Law on Road 2014¹² which has a Khmer and English version. Both sides were of the view that their version was a bit confusing. It was clear that neither the Khmer version nor the English translation was unambiguous. Secondly, is the development of cybercrime legislation across all jurisdictions in ASEAN. This has led to widespread reporting of the use of cybercrime legislation, particularly that related to the posting of what the authorities consider to be fake news, to apparently silence critics.¹³

      With such challenges how might it be possible to harmonise fake news laws across ASEAN? This is an especially important question as cybercrime respects no boundaries and many of the national laws have extraterritorial application.

      There is no known study focussing on harmonisation of cybercrime legislation across ASEAN although ASEAN has recognised the threat of cybercrime and is increasing cooperation in capacity building and law enforcement. To date there is no published evidence to suggest that the harmonisation of these laws across ASEAN is under active consideration. The Philippines is the only party to the Convention on Cybercrime,¹⁴ which was developed by the Council of Europe and opened to the global community. It is the largest such treaty and defines the various subsets of cybercrime but does not cover fake news probably, as at the time of drafting, social media was restricted to the sending and receiving of emails. One of its key strengths is its requirement that the parties actively cooperate in the investigation and prosecution of transnational offences.

      One of the ongoing legal issues within ASEAN at the moment is countering fake news. Some fake news is of monumental significance and has been a major factor in the Buddhist/Muslim conflict in Myanmar from 2012 onwards where both sides, but predominately Buddhists, used text messaging to promulgate lies against each other to stoke communal tensions.¹⁵ It is possible that state players were also active.¹⁶ On the other hand some of the fake news being investigated is extremely trivial.¹⁷ Malaysia,¹⁸ and Singapore¹⁹ enacted anti-fake legislation whilst the other jurisdictions are attempting to use existing cybercrime legislation. With the return to power of Prime Minister Mahathir Mohamad, Malaysia subsequently repealed its legislation in 2019.²⁰ A further feature of the fake news culture is the proliferation of online vigilantes who trawl the internet as the proxies of the authorities to find any post that they consider violates the sensitivities of the state.²¹

      The objectives of the research were:

      a. Review the existing definitions of fake news and develop a framework for assessing the coverage and effectiveness of anti-fake news legislation within three of the ASEAN member states, namely Indonesia, Philippines and Thailand;

      b. Use the results of the analysis of the legislation to ascertain the feasibility of harmonisation of cybercrime laws across ASEAN as they relate to fake news; and

      c. Recommend a model for going forward for fake news laws that might be applied in ASEAN as well as other regional groupings.

      and were subsequently reported in a Master of Philosophy dissertation by the author.²²

      1 The members of ASEAN are Brunei Darussalam, Cambodia, Indonesia, LaoPDR, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam.

      2 Malaysia, Philippines and Singapore.

      3 ‘Combatting Cybercrime: Tools and Capacity Building for Emerging Economies’, (Published Report, World Bank and United Nations, 2017) 18 < https://www.itu.int/en/ITU-D/Cybersecurity/Documents/worldbank-combating-cybercrime-toolkit.pdf >.

      4 Marco Gercke, ‘Understanding Cybercrime: Phenomena, Challenges and Legal Response’ (Published Report, International Telecommunication Union, November 2014) 11 < https://www.itu.int/en/ITU-D/Cybersecurity/Documents/Cybercrime2014_E.pdf >.

      5 ‘Combatting Cybercrime’ (n 3) 19.

      6 ‘Crime Areas: Cybercrime’, International Criminal Police Organization (Web Page, 24 February 2019) < https://www.interpol.int/Crime-areas/Cybercrime/Cybercrime >.

      7 ‘Ninth Annual Cost of Cybercrime Study’, (Published Report, Accenture Security, 6 March 2019) 14 < https://www.accenture.com/us-en/insights/security/cost-cybercrime-study >.

      8 ‘2019 Official Annual Cybercrime Report’, (Published Report, Cybersecurity Ventures 2019) no pagination < https://www.herjavecgroup.com/wp-content/uploads/2018/12/CV-HG-2019-Official-Annual-Cybercrime-Report.pdf >.

      9 Ibid.

      10 See for instance: Smith, Robert and Mark Perry, ‘Fake News Legislation in Thailand: The Good, the Bad and the Ugly’ (2020) 6(3) Athens Journal of Law 243

      11 Quinton Temby, ‘Disinformation, Violence, and anti-Chinese Sentiment in Indonesia’s 2019 Elections’ (2019)(No 67) ISEAS Perspective 1, 6.

      12 Law on Road 2014 (tr Office of Council of Ministers) (Cambodia) (‘ Road Law ’).

      13 See for instance: James Gomez, ‘Vague Fake News Laws Lead to Over Criminalisation in South East Asia’, Commentary (Blog Post, 2 April 2019) < https://asiacentre.org/vague-fake-news-laws-lead-to-over-criminalisation-in-south-east-asia/ >. Gulizar Haciyakupoglu, ‘Southeast Asia’s Battle Against Disinformation’, ASEAN Beat (Blog Post, 12 February 2019) < https://thediplomat.com/2019/02/southeast-asias-battle-against-disinformation/ >.

      14 Convention on Cybercrime , opened for signature 23 November 2001, UNTS No 40916 (entered into force generally 1 July 2004; for Australia 1 March 2013) (‘ Convention on Cybercrime ’).

      15 Francis Wade, Myanmar’s Enemy Within: Buddhist Violence and the Making of a Muslim ‘Other’ (Zed Books, 2017).

      16 Ibid.

      17 See for instance: Niem Chheng, ‘Preah Vihear Temple Claims are ‘Fake News’’, The Phnom Penh Post (online, 30 May 2019). ‘Cambodian Caught for Spreading Fake News about Prayut ‘, Bangkok Post (online, 31 May 2018) < https://www.bangkokpost.com/news/general/1476425/cambodian-said-to-be-caught-for-spreading-fake-news-about-prayut >. ‘Chinese Wrongly Accused of Beating Sea Urchins’, Bangkok Post (online, 23 May 2019) < https://www.bangkokpost.com/news/general/1682676/chinese-wrongly-accused-of-beating-sea-urchins >.

      18

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