THE IMPLICATIONS OF LEGISLATION FOR CENSORSHIP AND FREEDOM OF EXPRESSION The major debate surrounding legislation that addresses information disorder has been on its relationship to freedom of expression, and the possibility of governments using this legislation to suppress criticism of the state and exercise censorship. A 2017 Global Information Society Watch (GISWatch) report entitled “Unshackling Expression: A Study on Laws Criminalising Expression Online in Asia” observed: With the rise of social media applications and the growing popularity of instant messaging applications on a global level, with almost nationwide adoption, state authorities would naturally feel more inclined to extend their existing powers to cover these platforms. On the one hand, the government would reiterate the need for “holistic” solutions and prevention with regard to issues of security, online fraud and “fake news”, and would utilise this as leverage for further control and punitive measures; on the other hand, the imposition of additional regulations with expanded regulatory powers afforded to a politically aligned entity would mean that legitimate interest in freedom of expression would likely be compromised to achieve the former. (APC 2017, 94) Vidushi Marda contends that “a new body of law” against “fake news” is unnecessary: I think a lot of people forget that protected speech includes lies. Lies, I think, are still legitimate speech. And I think this entire idea of fake news was constructed almost in a hurry . Of course, it not only started then, but [this idea] was constructed in a hurry [in order] to prosecute and things like that. And this treats it like a new problem, but it really isn’t a new problem. The idea of speech in legitimate speech, hate speech, these things have existed for sixty or seventy years. And the minute there is a requirement under the law to say this is what is fake news and this is what is legitimate news, you have to ask yourself: Who gets to decide that? Because if it’s the courts, we know that the judiciary isn’t a perfect system—not everyone can access it equally—and, of course, states have greater kinds of sway when it comes to the courts. So, for me, the basics of what we need are there in traditional law, we don’t have to reimagine and say: “This is so special that we need a new body I N FO R M ATI O N D I SO R D ER IN THE GLOBA L SOUTH of law.” We actually just need to go back to the fundamentals of freedom of expression, opinion, information, etc. (interview, 2021) It has also been observed that the Covid-19 pandemic has driven up censorship and endangered freedom of expression, often under the guise of combating “fake news” and mis- or disinformation. Human Rights Watch has documented numerous instances of the Covid-19 pandemic being used as a justification to restrict freedom of expression, including actions such as the arbitrary arrest, detention, and imprisonment of critics of the government, among other abuses. Other measures include legislation against certain kinds of media coverage, and criminalizing the spread of misinformation. More information can be found on the Human Rights Watch website,13 including maps showing the geographical areas where different types of abuses have been reported. Many countries in Asia are identified on the maps produced by Human Rights Watch, especially with regard to “Arbitrary Arrest, Detention, Prosecution” and “Censorship Through Laws, Threats, and Blocking Reporting” (HRW 2021b; HRW n.d.). Even outside the context of the pandemic, such legislation has been problematic. In Pakistan and Indonesia, blasphemy legislation, which prohibits criticism of religion, has been wielded against religious minorities (BBC News 2019c; Harsono 2018). Vague definitions often mean that terms such as “libel” and “false information” can be overstretched. Mong Palatino was a member of the Philippines House of Representatives when the 2012 Cybercrime Law was passed. He recalled opposing the law, and notes the dangers it poses to freedom of expression: I voted no, against this anti-cybercrime law. The intention during that time, from the point of view of the government, was to make the internet a safer place. And they believed that we are doing a public service by passing this law, which intends to criminalize cybercrimes. So, we have legislators who have little knowledge about internet legislation and who think that the only way to protect the people is to police the internet. The cyber-libel [provision of the law] is really controversial. Because if there is a crime, and if you used a gadget, or a cell phone or computer, they immediately add another penalty for that. Asia – 2 2 2