In yet another sign that Europe’s national political elites are intent on weaponising the law against those who dissent from progressive orthodoxy, Cyprus is proposing an amendment to its criminal code that will introduce prison sentences of up to five years for anyone caught spreading “fake news” or writing “offensive” comments.
Earlier this month, the country’s Parliamentary Committee of Legal Affairs of the House of Representatives – i.e., the Cypriot Parliament – debated the proposed amendment, which criminalises the dissemination of “fake news” (a term sometimes used interchangeably with “disinformation”), “insults”, and the online dissemination of “obscene photos and pictures”. If passed, the amendment will reclassify these offences from civil to criminal, with a maximum penalty of five years in jail.
During the House legal committee meeting, Deputy Attorney General Savvas Angelides, and Committee Chair Nicos Tornaritis, who is also Head of the Cyprus Delegation to the Parliamentary Assembly of the Council of Europe, were in favour of the amendment.
Tornaritis said his proposed amendment would be submitted to the House of Representatives plenary in September, and that it was just “the first step” towards safeguarding the Cypriot public from fake news.
According to Angelides, families and young people were being “ruined” by fake news and this form of criminal activity must be addressed. In a subsequent interview, he said there was a need to “draw the line between freedom of speech and recklessness” and that the amendment was intended to address “obvious fake news” and “there are defences when there is good faith”.
Pressed as to what he meant by “obvious fake news”, “good faith”, and whether the bill would have implications for press freedom, he responded:
I believe that the mass media have serious and professional journalists, whom I do not believe will ever reach the point of resorting to insults or deliberate dissemination of fake news to deceive the public. So, I do not think that journalists, the media you refer to, have anything to fear from this bill. It is so explicitly worded that it does not cover either the expression of opinion or criticism.
Angelides was recently cleared of corruption allegations in three cases brought by the country’s audit office regarding potential conflicts of interest.
Pushback against the proposal came from several groups, including the country’s Association of Newspapers and Periodicals Publishers, represented by Eleni Mavrou.
The looming threat of criminal investigations initiated by those who could not take criticism was, she said, “a blow to democracy”, as the risk of imprisonment would discourage journalists from reporting corrupt practices or dishonest politicians. In this sense, the amendment would criminalise “journalistic work through the back door” and “violate” freedom of the press.
The President of the Cyprus Union of Journalists, George Frangos, concurred, warning that if the proposed amendment is passed , it will “force” journalists “into further self-censorship”, and “diminish the scrutiny of all forms of power”.
He added that terms like “offensive” and “fake news” are subjective, vague, and all too easily weaponised by politicians with an ideological agenda.
The Cyprus Mail aired similar concerns: “If for example a journalist writes that a minister is ‘incompetent, incapable of performing their duties’ would the offender face criminal charges for insulting comments? And who will decide what constitutes an ‘offensive’ or ‘insulting’ comment justifying criminal charges?”.
The criminalising of the spreading of “fake news” is “similarly problematic”, the paper added. “How would prosecutors identify the source of the fake news? Would someone be charged for re-tweeting an item of ‘fake news,’ which are often distributed by people experienced in covering their tracks?
These observations in fact echo the words of the former UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, David Kaye, who in a 2020 report to the organisation’s Human Rights Council noted that disinformation “is an extraordinarily elusive concept to define in law, susceptible to providing executive authorities with excessive discretion to determine what is disinformation, what is a mistake, what is truth”.
Kaye added: “The penalisation of disinformation is disproportionate, failing to achieve its goal of tamping down information while instead deterring individuals from sharing what could be valuable information.”
The proposed amendment to Cyprus’s criminal code shares troubling similarities with a package of legislative amendments recently introduced by the administration of the northern part of Cyprus – the so-called ‘Turkish Republic of Northern Cyprus’, which has long been regarded as a puppet state of Turkey.
According to Reporters Without Borders, these measures are liable to result in “major problems for local media and journalists”, since anyone who writes an article with “malicious intent” for a “mass media” outlet could be sentenced to up to five years in prison.
In an echo of article 299 of Turkey’s penal code, under which anyone who insults President Erdoğan can be given a prison sentence, the amendments broaden the meaning of the term “malicious intent” in existing legislation to mean “insulting” or inciting “discontent or dissent” towards the President or the Republic, as well as “ridiculing” them, or questioning the sovereignty of the northern part of Cyprus.
However, Cyprus isn’t the only EU member state dabbling in the criminalisation of vast swathes of speech that are currently legal.
Despite the fact EU policy on disinformation is premised upon the notion that disinformation is not per illegal, but it is harmful, several members states have developed criminal law provisions that carry possible prison sentences upon conviction for dissemination of content deemed to fall under this problematic term.
In 2021, for instance, a criminal code provision adopted by Greece’s parliament made it a criminal offence to spread “fake news” that is “capable of causing concern or fear to the public or undermining public confidence in the national economy, the country’s defence capacity or public health,” punishable with up to five years in prison. At the time, Human Rights Watch said there was a “serious risk” that the provision could be “used to punish media professionals, civil society, and anybody who criticizes or takes issue with government policies, creating a chilling effect on free speech and media freedom”.
Lithuania also prohibits the dissemination of “disinformation” – under Article 19 of the country’s Law on the Provision of Information to the Public, it is prohibited to “disseminate disinformation and information which is slanderous and offensive to a person or degrades human dignity and honour”.
Similarly, Article 82 of Malta’s Criminal Code targets the spreading of false news, making it an offence to “maliciously spread false news which is likely to alarm public opinion or disturb public good order or the public peace or to create a commotion among the public or among certain classes of the public”. The offence carries a possible three-month prison sentence.
In France, too, Article 27 of the Law on Freedom of the Press law prohibits the dissemination of “false news attributed to third parties when made in bad faith, has disturbed the public peace, or has been likely to disturb it,” and carries a possible fine of €45,000.
Are national laws of this kind compliant with EU and international law?
The UN Human Rights Committee previously found that prosecution for the “crime of publication of false news” on the ground that the news was false, is in “clear violation” of the right to freedom of expression as per Article 19 of the Universal Declaration of Human Rights.
Natalie Alkiviadou, Senior Research Fellow at The Future of Free Speech, also points out that European Court of Human Rights (ECtHR) case law has previously underlined how national laws prohibiting false information violate freedom of expression.
In Salov v. Ukraine (2005), for instance, the ECtHR held that a prosecution for “dissemination of false information” under Ukraine’s election legislation violated the right to freedom of expression under Article 10 European Convention on Human Rights (ECHR). Importantly, the Court held that Article 10 ECHR “does not prohibit discussion or dissemination of information received even if it is strongly suspected that this information might not be truthful”.
