On 3 February 2022, the International Organization “Reporters Without Borders” (Reporters Without Borders) published an entry on the social network platform on Twitter asks the Justice Ministry to withdraw the amendment to Criminal Code which sanctions the spreading of fake news by up to a 5-year prison sentence. Although it is necessary to fight false information in the context of #COVID19, criminalizing them is disproportionate.
In response to the call made by “Reporters without Borders”, the Ministry of Justice of the Republic of Latvia notes that the distribution of false news is already classified in Latvia as hooliganism according to Section 231 of the Criminal Law, if it has resulted in a gross disturbance of public order, disturbing the peace of persons or the work of institutions, undertakings (companies) or organisations.
The proposal of the Ministry of Justice develops the norms of the Criminal Law. It is not a complement to the law by a fundamentally new rule, but a clarification of the existing framework, in line with today's, by dividing and clearly formulating one form of hooliganism from the statutory framework for hooliganism (Section 231 of the Criminal Law), by deliberately distributing false messages in both the public and the digital environment.
We also draw attention to the fact that certain articles of the Criminal Law are already criminalized for the distribution of specific false news. For example, Section 157 of the Criminal Law provides criminal liability for a person who knowingly commits intentional distribution of fictions, knowing them to be untrue and defamatory of another person, in printed or otherwise reproduced material, as well as orally, if such has been committed publicly (defamation). In 2002, however, however, a special offence of distribution of false news was removed from the general offence of hooliganism under Section 231 of the Criminal Law , namely Section 231.1 of the Criminal Law criminalizes – for a person who knowingly commits making a false report on placing of explosive, poisonous, radioactive or bacteriological substances or materials or explosive devices in an institution, undertaking or other object, or locating outside of an institution, undertaking or other object.
The Ministry of Justice concluded that, as in the case of Section 231.1 of the Criminal Law, it is necessary, from the general hooliganism of Section 231 of the Criminal Law, in a separate Section 231.2 of the Criminal Law (Express Verbis), to lay down criminal liability in relation to the deliberate distribution of false information and fictions, in order to facilitate the proof of a criminal offence, as well as to ensure that the special provision serves the prevention that is to deter individuals from bragging false information that create a gross disturbance of public order.
The first paragraph of Section 231.2 of the Criminal Law provides for criminal liability for gross disturbance of public order, which is expressed deliberately in the public dissemination of false information or fiction, disturbing the peace of persons or the work of institutions, undertakings (companies) or organisations. We would like to draw attention to the fact that the dispositions do not use the term “false news” or “disinformation”, but that the criminal law already uses the terms “false information” and “false fiction”. Section 231.2 of the Criminal Law does not cover opinions, beliefs, caricatures, predictions or promises, but it is verifiable that false information or fictions are made publicly, namely when a information or fiction is presented as if a fact has occurred, but when it is verified it can be found that it is false.
We would like to draw attention to the fact that, in order to be criminally liable under Section 231.2 of the Criminal Law, it is not only sufficient to establish the public dissemination of false information or fictions, but it must also be noted that
1) a person is aware that he or she distributes false information or fiction (a person shall not be punishable only if he or she shares any information, without critically evaluating it and without knowing that he or she does not comply with the truth);
2) there have been certain consequences, namely that there must be a gross disturbance in public order, disturbing the peace of persons or the work of institutions, undertakings (companies) or organisations.
According to Section 100 of the Constitution of the Republic of Latvia, everyone has the right to freedom of expression, which includes the right to freely receive, keep and distribute information and to express his or her views. Censorship is prohibited. At the same time, we would like to draw attention to the fact that the right to freedom of expression is not absolute. According to Section 116 of the Constitution of the Republic of Latvia, the rights of persons set out in Articles ninety-six, ninety-seven, ninety-eight, one hundred, one hundred and two, one hundred and three, one hundred and six, and one hundred and eight of the Constitution may be subject to restrictions in circumstances provided for by law in order to protect the rights of other people, the democratic structure of the State, and public safety, welfare and morals. Similarly, UN and European human rights sources define not only the State's obligation to guarantee the right to freedom of expression, but also provide for the conditions under which the country can limit this right and the mechanism for assessing the need to apply restrictions, namely the second paragraph of Section 29 of the Universal Declaration of Human Rights, the first paragraph of Section 52 of the Charter of Fundamental Rights of the European Union and the second paragraph of Section 10 of the European Convention on Human Rights.
In conclusion, we would like to emphasise once again that the amendments to the Criminal Law are not designed to limit the free expression of views and beliefs, but in order to avoid a gross disturbance of public order by publicly disseminating consciously false information or fiction. It should be noted that we are currently living in an era where deliberate and targeted disinformation is being disseminated in order to target the geopolitical situation, mood and divisions in society, including in order to achieve certain objectives related to the creation of instability and panic in the country. The amendment to the Criminal Law proposed by the Ministry of Justice has been supported by both the Legal Commission of the Saeima and the Subcommittee on Criminal Law Policy. The police and the prosecutor's office also conceptually support such a solution.