As we have seen in recent elections and in the present pandemic, misinformation can do real harm. But the Canadian government’s plan to consider legislation to criminalize the spreading of misinformation is the wrong response. Criminalization will not stop misinformation. In fact, it often draws more attention to it, as well as undermines civil liberties and human rights essential in a democratic society.
Concerns about misinformation are not new, nor is the criminalization of it. Laws against spreading misinformation date from the Statute of Westminster in 1275, which introduced the offence De Scandalis Magnatum or Scandalum Magnatum. It provided "[t]hat from henceforth none be so hardy to tell or publish any false News or Tales, whereby discord, or occasion of discord or slander may grow between the King and his People, or the Great Men of the Realm".
This criminal offence was enforced by the King's Council, and later by the Court of Star Chamber, until the 17th century, when its enforcement was taken over by the common law courts. Under Elizabeth I, the punishment was loss of ears for false news or tales spread in speech and the right hand for putting such news or tales into writing.
Two distinct strands of contemporary law derive from this ancient offence: modern defamation law and the body of law against the spread of misinformation. The former came to focus on reputational harm for which the truth or falsity of the claim is not essential. The latter, the outlawing of misinformation (“false news or Tales”) which leads to “discord … between the King and his People, or the Great Men of the Realm”, became generalized into misinformation that causes “injury or mischief” to any public interest.
As a way of stopping misinformation, this latter legal approach proved wanting. In his history of English law, William Holdsworth points to a "thin stream of... cases" from the 16th century onwards testifying to the waning force of the statute which was finally repealed in Britain in 1887. Despite this, several years later, when he was drafting the first Criminal Code for Canada in 1892, George Burbridge included the repealed provision that made it an indictable offence for anyone “who wilfully and knowingly publishes any false news or tale whereby injury or mischief is or is likely to be occasioned to any public interest.” [To be clear, the crime was not lying. It was harming the public interest.] But even Burbridge was no fan of this section of the Code, commenting in his earlier 1890 Digest of the Criminal Law in Canada that its "definition is very vague and the doctrine exceedingly doubtful."
Moved from the rubric of “seditious offences” to that of ‘nuisances” in 1955, the 1892 false news provision continued largely as originally written in our Criminal Code and proved as wanting in Canada as it did in Great Britain. For then Justice Beverley McLachlin, writing the majority opinion for the Supreme Court decision in R. v. Zundel in 1992, the provision’s endurance was puzzling:
Neither documentary nor viva voce evidence has been proffered to explain why the section was retained in Canada when it had been dropped elsewhere or why it was moved from the offences dealing with "Sedition" to those dealing with "Nuisance". What is now s. 181 has been judicially considered only three times in Canada, excluding this case; the jurisprudence on it is virtually non-existent.
That history came to an ignominious end with the Supreme Court ruling the law unconstitutional in Zundel, noting “its potential not only for improper prosecution and conviction but for 'chilling' the speech of persons who may otherwise have exercised their freedom of expression.”
Now, in the midst of a health crisis where misinformation can be deadly, interest in criminalization has returned. For many politicians and members of the public, whether unaware of history or disregarding it, reintroducing a law against the spread of misinformation seems the answer. It’s the wrong answer. Censorship through criminalization not only does not stop the spread of misinformation; it often increases circulation of it. Criminalization is a failed approach that diverts us from the things that can make a difference, and, in the process, undermines basic civil liberties and human rights essential to our democracy.
To make something illegal, it must be defined, and defined precisely enough that there is minimal collateral damage to free expression when the law is applied. “Misinformation” is not capable of such a precise definition. However defined, it will either be so specific as to miss much of what may be harmful or so broad as to capture too wide a range of expression. Overly broad proscriptions always result both in arbitrary application by authorities and in chilling of free expression because of uncertainty about the limits of expression being proscribed. That was the case with Canada’s former law against spreading false news and is the case currently with Canada’s fraught law against hate speech which defies clear and precise definition even by our courts.
Consider, for a moment, the question of what information should be made illegal to circulate because of harm to the public. What should be included and what should be excluded – and on what basis? In the case of information about health, would the proscription include advocacy of homeopathy, Ayurveda, naturopathy, apitherapy, faith healing, kampo, magnetic healing, pranic healing, reflexology, urine therapy, or the many diets and cures purported to be effective treatments for cancer (e.g., Breuss diet, Budwig protocol, Moerman Therapy)? Would anti-vaxxer advocacy constitute criminal misinformation? Beyond health, should the claims of climate change deniers be criminalized as there is little scientific doubt that, if accepted, they threaten the future of human life on the planet?
How would that decision be made, and by whom? It is not the truth or the falsity of the information that determines its status; it is whether it harms the public interest. Most of the purveyors of the above examples of potential “misinformation” sincerely believe that the information they are sharing is correct and benefits the public. Most of the scientific community deems them harmful.
These are the classic questions facing governments wanting to use the law for censorship. If they are resolved, however arbitrarily, other problems emerge. One is the unintended effect of drawing more attention to the “false news.” Ernst Zundel, the obscure Toronto-based neo-Nazi, whose Holocaust-denying claims were known to a small coterie of like-minded individuals, became a national and international figure as a result of being charged with spreading false news. Jim Keegstra, the virulent but obscure anti-Semite who was properly fired from his job as a high school teacher in Eckville, Alberta two years previously, was able to make his views and expressions known to millions of Canadians when hate speech charges against him dragged through the courts for 12 years before his conviction was upheld in a 4-3 vote in the Supreme Court.
There are better, genuinely effective ways of countering misinformation that do not compromise civil liberties. They do not offer the illusion of a simple “pass a law and be done” approach but require concerted action on the part of many players.
The starting point is the promotion of independent media employing professional journalists trained in asking difficult questions and vigorously seeking answers. Over the past two decades, we have witnessed the economic devastation of institutional journalism that creates new content through original reporting and research. Institutional journalism is being increasingly replaced by citizen journalism consisting mainly of commentary on information available to everyone and by social media platforms that absorb most of the advertising revenue while creating no content. We must find ways of rebuilding independent professional media as an essential part of fighting misinformation. Professional journalists are the public’s eyes and ears.
Also important are whistleblowers – individuals who disclose wrongdoing that can harm the public – who should be protected from discipline and retaliation. Whistleblower protection laws in Canada are notoriously weak and must be strengthened as part of a coordinated strategy to deal with misinformation.
Media organizations, universities and colleges, and NGOs can do more to aid in identifying and challenging misinformation, such as expanding fact-checking websites available to journalists and the public. They can also provide tools that make it easier to assess information. This can include creation of lists of websites that use distorted headlines and decontextualized or dubious information; handbooks such as the Verification Handbook for Disinformation and Media Manipulation edited by Craig Silverman, published by the European Journalism Centre, and free online; and news verification services such as Bellingcat which use digital research and crowdsourcing to combat fake news.
The media have to be more willing to call out misinformation and correct fake news and disinformation without legitimizing them. Schools, colleges, and universities need to expand their efforts in teaching media literacy that helps identify different types of media and understand and critically analyze the messages they're sending.
In addition to governments finding ways to encourage independent, professional journalism, they can do a number of other things. For example, they can undertake public education campaigns, such as the UK’s “Don’t Feed the Beast”, run by the Department for Digital, Culture, Media and Sport’s rapid response unit of specialists to identify false, misleading and misinformed posts regarding the Covid-19 coronavirus.
In areas in which governments already have regulatory authority, they can exercise that authority properly. For example, under the Food and Drugs Act, Health Canada regulates medical devices, drugs, and natural health products “to protect the safety of health products available to Canadians.” This includes promoting compliance, compliance monitoring, monitoring misleading health claims, and regulatory enforcement to address detected health risks. Enforcement can include sending letters to non-compliant regulated parties requesting that they submit a plan for corrective measures; requesting a voluntary stop sale or recall; issuing public advisories, recommending the refusal, seizure, or ordering the removal or destruction of imports at the border; issuing a recall order; revoking the product’s authorisation, licence or registration.
Criminalizing misinformation is a fool’s errand. It never stops the spread. That’s fortunate in cases like Galileo’s advocacy of heliocentrism and unfortunate in cases like Holocaust denial. The public interest is protected, knowledge advances, democracy thrives not through censorship but through critical engagement. The only hope for an antidote to the wrong, the harmful, and the dangerous is an informed and educated public. That requires a robust commitment to civil liberties, to public education, to vibrant investigative journalism, to protection for whistleblowers, to vigorous scientific and intellectual inquiry, and to open public discussion and debate.