Cyprus’ fake news bill threatens free expression, OSCE warns

Draft amendments to the criminal code of the Republic of Cyprus, concerning the criminalisation of fake news, should not be pursued in their current form, the Organisation for Security and Cooperation in Europe (OSCE) said in an urgent opinion.

The OSCE opinion was requested by Akel MP Irene Charalambides, vice president of the organisation and special representative against corruption.

Charalambides said in a statement that the bill was withdrawn to be resubmitted in a way that would not affect the work of journalists.

However, it is still receiving criticism from the public, she added.

The Akel MP publicised the urgent opinion on Thursday in view of the resubmission of the bill.

The OSCE says in its urgent opinion that “the right to freedom of expression and access to information is a human right crucial to the functioning of a democracy and is central to achieving other human rights and fundamental freedoms.”

Any restriction on freedom of expression “must meet the strict test under international human rights law,” the OSCE adds.

“The Draft Amendments to the Criminal Code of Cyprus under review mainly address two distinct issues: the dissemination of false information or content, including the recriminalisation of defamation, and the distribution of indecent or obscene communications,” the OSCE says.

Bearing in mind the negative impact that criminal defamation laws may have on the freedom of expression, international human rights bodies “have called upon states to abolish legislation providing for criminal sanctions for defamation,” it adds.

“However, the mere existence of criminal sanctions for defamation can have a chilling effect, even if they are minor in pecuniary terms or applied rarely or not at all,” the OSCE points out.

Moreover, there is a risk that criminal defamation laws may be “used against journalists, political opponents, human rights defenders and others who are critical of government officials and policies.”

“Where civil defamation laws exist, they should be drafted with care,” it points out.

The OSCE says the drafters of the bill could consider enhancing the existing regulatory framework providing for alternative non-criminal remedies and civil damages to be paid to the affected persons when the expression reaches a certain level of severity, while ensuring that the said provisions are also carefully crafted to exclude arbitrary application or abuse by public authorities and fully comply with international human rights standards.

With respect to the communication through public electronic communications network of “false content”, it is acknowledged that the spread of information that aims to deceive, mislead or manipulate people, however the criminalisation of the dissemination of knowingly “false information” may be envisaged only when it is intended to and actually presents a clear and concrete risk to cause or results in serious harm to others, public disorder or seriously endangers public safety.

With respect to the criminalisation of the communication through public electronic communications networks or publication of content that is grossly offensive and/or indecent and/or obscene and/or threatening in nature, it must be reiterated that the right to freedom of expression also protects “deeply offensive” speech or forms of expression.

The OSCE says that, given the broad wording and the vagueness of terms, the proposed criminal provisions may also cover consensual sexualised messaging among adults, or satirical and artistic images, which are legitimate forms of expression that should in principle fall within the scope of protection of freedom of expression.

Wording, it adds, should either be reconsidered entirely or, at minimum, much more strictly circumscribed.

“Overall, each of the proposed new criminal offences present some serious shortcomings in terms of compliance with international human rights standards and OSCE human dimension commitments, especially with respect to the vague and overbroad terms used, which may potentially lead to arbitrary application or abuse by public authorities.”

The OSCE adds that “it is recognised that the mere possibility of imposition of a criminal sanction, be it a mild fine, still risks having a chilling effect on the exercise of freedom expression.”

It says “the adoption of the draft amendments, in their current form, should not be pursued as they contain considerable deficiencies that render them incompatible with international human rights standards and OSCE human dimension commitments.”