Laws made in haste seldom work out well

Hungary shows the dangers of emergency legislation says Ian Murray, Executive Director of the Society of Editors 

It all makes perfect sense.

Fake news and disinformation surrounding the Covid-19 virus put lives and health at risk and it is preferable the spread of such misinformation is prevented.

So, there will have been plenty of nodding heads yesterday when former Digital, Culture, Media and Sport (DCMS) Committee chairman Damian Collins MP suggested those deliberately spreading such false facts should face prosecution.

Even those who argue for the fundamental right of total free speech – and there are some who hold with no censorship at all – would find it difficult to win the day against the current backdrop of rising deaths from the coronavirus and the extreme pressures placed on the NHS.

And yet we should nevertheless be wary of rushing to simple solutions for what is a complex and difficult situation. For certainly any new laws hastily created to combat the spread of misinformation now will undoubtedly lead to problems further down the line.

The road to a just, free, liberal society is paved with the mistakes created through hasty, well-intentioned legislation. The laws of unintended consequences are always present in these circumstances.

We have only to look at the actions of some police forces in the past few days since the government’s emergency legislation to contain the virus was brought into effect.

Incidents of police believing, erroneously, they now have the power to shame dog-walkers taking exercise far from others in the Peak District, or informing shop keepers they cannot sell Easter eggs as they are not classified as essential goods, have highlighted the dangers of mission-creep.

Those in authority will inevitably seek to use any powers given them, and not always as intended.

The Regulation of Investigatory Powers Act (RIPA) introduced in 2000 was meant to be used to monitor serious criminal activity. It didn’t take long for local authorities to begin using the legislation to pry into the everyday lives of citizens. From spying on families to check whether they were indeed eligible for a child’s school place, to monitoring the walking of dogs, feeding pigeons and fly-tipping, RIPA was used to snoop on citizens. It may be true that some of those watched were breaking minor laws or regulations, but the legislation was never intended for such use. Was it not for an outcry from the press – and public – who knows how much further use of the law would have enabled those who govern us to extend their gaze into our lives?

From the media’s point of view the misuse of the RIPA legislation was brought closer to home with police monitoring of journalists’ activities. The so-called Plebgate inquiry and the prosecution of former minister Chris Huhne for perverting course of justice saw  journalists’ telephone records obtained using the powers of the act in order to identify their sources, bypassing the usual court proceedings needed to obtain such information.

At the time The Sun made an official written complaint to the Investigatory Powers Tribunal to seek a public review of the London Metropolitan Police’s use of anti-terror laws to obtain the phone records of Tom Newton Dunn, its political editor, in relation to its inquiry into the “Plebgate” affair. The Sun’s complaint coincided with confirmation that the phone records of the news editor of The Mail on Sunday and one of its freelance journalists had also been obtained by Kent police force when they investigated Chris Huhne’s speeding fraud.

RIPA was eventually rolled into the current Investigatory Powers Act 2016, promptly nicknamed the ‘Snoopers Charter’.

But while there were many who felt both RIPA and its successor were a dangerous invasion of our freedoms and rights, equally there are those who take the attitude that there should be nothing to worry about if you are not doing anything wrong. Such thinking may be behind the fact this nation is reported to be the most watched on the planet, certainly in the free world, with over four million surveillance cameras following almost our every move.

It would no doubt be those sympathies now that would see strong support for legislation to outlaw misinformation regarding Covid-19 if it ever came to government action.

In his call for new laws made while launching a new government-website to enable the public to check for false Covid-19 information, Collins shied away from proposing legislation that would target individuals for creating or passing on rumours. The targets would be the digital platforms who fail to remove such information when asked and organisations that create deliberate misinformation. Who such organisations might be he did not elaborate, but as much false information appears to be created abroad it is difficult to see how Chinese or Russian-based bodies can be brought to heel.

As for the digital giants, they would argue – and do – that they already take strong steps to remove misinformation brough to their attention and are to do even more. Facebook revealed last week it was removing flagged items that carried false Covid-19 facts, yet it pulled back from a policy of instant removal of conspiracy theories related to the virus crisis until they are fully considered. Its reasoning is sound. One person’s conspiracy is another’s reasonable debate. Should, for instance, theories surrounding the cause of the initial outbreak of the virus put forward by official Chinese bodies that US military were involved be censored? At the very least it is important to hear what others are saying if only to debunk any falsehoods.

And who would decide what rumours are false and what facts are certain?

The current debate surrounding the government’s proposed Online Harms Bill to tackle the spread of abuse and dangerous content related to such areas as terrorism, child abuse and self-harm, initially included dealing with disinformation and fake news on the web.

Ironically, although the government now appears to have backed away from including disinformation in the final version of its new legislation – although we wait to see if the fall out from the current crisis changes that position – it gave as an example of dangerous misinformation the controversy surrounding the MMR vaccine and the resulting link to the spread of the measles virus. Stopping such misinformation’s ability to do real harm to health – in this case children – was an original aim for the Online Harms legislation. It appears to have been dropped after many voices were raised, including that of the Society of Editors, concerned that although the intentions were good, the result must inevitably be censorship and lack of freedom of expression. Who would sit in judgement to determine what is a valid, reasonable debate on a health issue and what is spreading falsehoods and lies?

How long before an Orwellian Ministry of Truth emerged to decide such matters and how quickly would the remit spread from medical issues to all corners of our lives?

We have only to look to other countries to see how this happens. In Hungary yesterday (March 30) the government took on emergency powers to jail anyone it decides is not towing the official line when discussing the virus crisis. Anyone questioning the Hungarian government’s handling of the emergency faces a five-year prison sentence, including journalists. Similar laws exist in Russia and other nations. The fear is more will follow.

Is it reasonable to believe the UK, with its long history of freedom will follow such draconian measures? Hopefully not. As yet there has been no serious suggestion from the government that it seeks such powers.

Yet as the crisis looks to get far worse before it gets better, can we be certain the calls for new laws ‘to protect the people’ will not grow louder?