Is there clarity over the precise scope of the law?
Potentially. Article 3 prohibits the dissemination, via the internet, of misleading or false information, and Article 5 prohibits the dissemination of false news, manufactured or falsified information, and information falsely attributed to third parties, where such dissemination is likely to distort electoral processes or public peace, or to undermine the discipline or the morale of the armies or to hamper the war effort of the nation. Article 2 lays out definitions for each term, but each definition still relies on terms like “inaccurate” or “misleading” which are subject to interpretation.
Furthermore, Article 7 goes on to prohibit the publication of “montages” with the words or the images of a person. The term “montage” is not defined elsewhere in the law, and it is not clear whether this refers only to deepfakes – the manipulation of a video or soundtrack to make it seem that someone has said something – or whether this could also refer to image captioning, memes or other types of content. These prohibitions do not, therefore, provide clear guidance to individuals and give an overly wide degree of discretion to those charged with the enforcement of this law.
Is speech or content restricted only where it is in pursuance of a legitimate aim?
No. Speech should only be restricted where some clear, objective public harm might be caused. The overall objectives of the law as laid out in Article 1 include the prevention of health crises and electoral crises, and Article 5 specifies that disinformation is only to be restricted where it is likely to distort electoral processes or disturb public peace, which may be considered legitimate aims. However, Article 5 also includes the aim of protecting the discipline or morale of the armies, which is likely to fall outside the legitimate aims of public order or national security. Furthermore, Articles 3 and 7 do not limit restrictions to any particular circumstances, meaning that disinformation could be restricted even where no legitimate aim is being pursued.
Do any restrictions in the law account for instances where the individual reasonably believed the information to be true?
No. Article 7 does specify that the montage must be published with the intention to cause harm, indicating intention to deceive. However, Articles 3 and 5 make no reference to the knowledge of the truth or falsity of the statement or intention to cause harm, meaning that individuals can be charged for publication of disinformation even when they believed the information to be true.
Are determinations of whether speech or content is disinformation made by an independent and impartial judicial authority?
Yes. Determinations will be decided by a court.
Are any responses or sanctions proportionate?
No. Article 3 (prohibiting sharing false or misleading information via the internet) imposes a penalty of imprisonment for 3 months to 1 year and a fine from MRU 50,000 to 500,000 (USD 1,379 to 13,787). Article 7 (prohibiting montages) imposes a penalty of imprisonment for 3 months to 1 year, and a fine of MRU 60,000 to 100,000 (USD 1,648 to 2,255). Article 5 (prohibiting the sharing of false news) imposes a penalty of imprisonment for 2 to 4 years and a fine of MRU 50,000 to 200,000 (USD 1,379 to 5,495), where the sharing of false news threatens electoral integrity or public peace, or imprisonment for 3 to 5 years and a fine of MRU 100,00 to 500,000 (USD 1,648 to 13,787), where the sharing of false news undermines the discipline or morale of the armies or hinders the war effort.
The penalties therefore range from imprisonment from 3 months to 5 years and fines of MRU 50,000 to 500,000 (USD 1,379 to 13,787). Whilst these are differentiated somewhat according to the nature of the offence – for example, false news that threatens public peace carries a higher penalty than that false news that does not threaten public peace – the penalties are not clearly tied to the harm actually caused or the intent to cause it. Harsh penalties could therefore be applied even in instances where individuals were unaware that the information was false and without intent to harm, which would be disproportionate.
Are intermediaries liable for third party content?
Unclear. Article 3 states that legal persons as well as individuals are liable for the dissemination, via the internet, of misleading or false information, punishable with a fine of MRU 500,000 and suspension of operations for up to 5 years. It is not clear whether this would only apply to news organisations or online publishers, or whether this would also apply to internet intermediaries such as hosting websites, which do not intervene in or have editorial control over third party content.