To tackle the fake news phenomenon, the Executive Yuan has requested that all government departments conduct a thorough review of regulations pertinent to a draft digital telecommunications and broadcasting act proposed by the National Communications Commission.
The bill is seen as being aimed at online social networking sites and as such has raised concerns over freedom of speech, despite the Cabinet convening a news conference to clarify that the draft law does not require online platforms to supervise free speech, nor would it make them responsible for removing content deemed to be fake news within 24 hours, or face a fine.
As the bill does not include a mechanism for the imposition of penalties, what purpose it serves is questionable.
According to the bill’s executive summary, as the Internet does not recognize borders, and based upon the principles of freedom, diversity and equality, the bill does not — and cannot — allow the government to interfere in online activity at a granular level. Instead, the bill is being sold as a means to facilitate self-regulation and autonomy online.
If this is the case, the wording of the bill should not be centered around the notion of punishment.
However, a cursory look at the proposed bill showed that it vacillates between self-regulation and government control.
For instance, according to Article 5, providers of digital telecommunications and broadcasting media must cooperate with the government in regards to national security, criminal investigations, serious public health incidents and during natural disasters.
This proposed regulation would force operators of social networking platforms to cooperate and hand over user data when requested. This has more than a whiff of a police state about it.
However, the same article also states that there must be a legal basis for requiring a social networking site to cooperate with the authorities. This renders the entire article invalid.
The bill, in its original incarnation, was initially to follow the lead of the Gesetz zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken implemented in Germany in October last year. It requires for-profit social media network platforms take down, within 24 hours, any speech in clear contravention of the law, on pain of a heavy fine.
However, such a requirement ultimately did not appear in the bill and the second item in Article 13 clearly states that the provider is in no way responsible for reviewing or monitoring any user-posted content.
Indeed, Article 14 to Article 16 list the reasons the platform can claim it was not in contravention of the law when involved in cases in which posted content is said to infringe upon rights.
Article 15, paragraph 1, item 1 even stipulates that in situations where it is difficult to determine whether a news item or post is genuine or fake — making it difficult to determine whether the content is in contravention of the law — the provider would not be liable to pay compensation or damages on account of the resultant rights infringement.
These exemption clauses then are little more than regulations placing the question of legality of online comments within the purview of the Civil Code and the Criminal Code.
The content of the bill either facilitates existing Internet self-regulation rules or reaffirms the legal principle of individual responsibility.
It is therefore not readily apparent what the practical purpose of the legislation is, other than as cautionary guidance. As such, why is the legislation necessary at all, especially when it is open to accusations of curtailing freedom of speech?
Wu Ching-chin is an associate professor at Aletheia University’s Department of Law.
Translated by Edward Jones and Paul Cooper
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