Protecting Democracy: Combating Fake News and State Surveillance in Jamaica

Fake News and Data Protection in Jamaica: A Growing Concern

In recent years, amplified by the digital age in which we now live, Jamaica as a country has faced an increasing problem with the spread of fake news which lead to misinformation and disinformation, similar to problem identified in the above scenario. Combined fake news, misinformation and disinformation pose a significant threat to the nation’s democracy and the fundamental rights of its citizens. This article explores the impact of fake news on Jamaican society, the constitutional implications, and the role of data protection can play in addressing these issues. Additionally, it discusses how global administrations have enacted regulations to manage political broadcasting over public airwaves to combat misinformation and the challenges of applying these guidelines in the digital age.

Imagine a small business owner in Kingston who relies on social media to attract customers and share updates about her store. One day, she becomes the target of a malicious fake news campaign, falsely accusing her of illegal activities. Overnight, her customer base dwindles, her reputation is tarnished, and she faces public scrutiny. This is not just a hypothetical scenario—similar incidents have occurred, highlighting the real-world impact of fake news on individuals’ lives and livelihoods. Now think about this from the perspective of a Jamaican citizen who receives information from public institutions in a similar manner.

While on the Nationwide at 5 I realized I did not have an appreciation for the difference between fake new, misinformation and disinformation. As such, I was actually glad that the hosts did not ask me to explain the difference. In order to avoid that situation in the lets start with a few definitions. The Oxford English Dictionary defines Fake News as “false information that is broadcast or published as news for fraudulent or politically motivated purposes.”

Disinformation refers to false information that is deliberately created and spread with the intention to deceive or mislead people. Unlike misinformation, which is shared without intent to deceive, disinformation is purposeful and strategic, often used to manipulate public opinion or obscure the truth. Here are some key aspects of disinformation:

Whats the big deal about Fake News?

The proliferation of fake news, undermines public trust and disrupts the democratic process. Prime Minister Andrew Holness has highlighted the severity of the issue, noting that misinformation is being spread by individuals, often at the behest of political organizations, to create confusion and manipulate public opinion. “We have too many good news items and achievements that you need to promote without having to resort to attacking people,” Prime Minister Holness stated, emphasizing the need for truth in public discourse.

In particular, fake news and misinformation poses a serious threat to democracy and the integrity of elections. Misinformation campaigns can manipulate public opinion, distort the truth, and create confusion among voters, ultimately influencing the outcome of elections. These campaigns often exploit personal data to target specific individuals or groups with tailored messages that reinforce biases, spread fear, and discourage political participation. This manipulation undermines the democratic process by preventing voters from making informed decisions based on accurate information.

Moreover, fake news erodes trust in democratic institutions and processes. When voters are bombarded with conflicting and misleading information, their confidence in the legitimacy of elections and elected officials diminishes. This lack of trust can lead to decreased voter turnout and increased political polarization, further destabilizing democratic governance. The intentional spread of false information not only compromises the fairness of elections but also threatens the foundational principles of democracy, including the right to free and fair elections and the ability to hold elected officials accountable.

Constitutional Implications

The Charter of Fundamental Rights and Freedoms, established under the Constitutional Amendment Act of 2011, guarantees several rights directly impacted by the spread of fake news. Key among these are the rights to freedom of expression and information. Section 13(3)(c) and (d) of the Charter guarantees individuals the right to freedom of expression and the right to seek, receive, distribute, or disseminate information, opinions, and ideas through any media. However, the deliberate spread of false information undermines these rights by distorting the truth and misleading the public.

Additionally, the right to freedom of thought, conscience, and political beliefs, as outlined in Section 13(3)(b), is compromised when citizens are subjected to misinformation that manipulates their political choices. The Charter also emphasizes the state’s obligation to uphold and protect these rights, making it imperative for the government to effectively address the spread of fake news.

The Role of Data Protection

It is our view that employing the data protection laws, while not the entire solution, can play a role in combating fake news by ensuring the integrity and security of information. Effective data protection measures can prevent the misuse of personal data, which is often exploited to create and disseminate fake news. By regulating how personal data is collected, processed, and shared, Jamaica can reduce the risk of misinformation campaigns targeting specific individuals or groups based on their personal information.

For example take the instance of the Misleading Audio: Ian Hayles and Juliet Cuthbert-Flynn:

Recently Ian Hayles participated in a “skit” that was published on youtube, where it appears that a previous phone conversation of Minister Juliet Cuthbert-Flynn was manipulated to make it appear that Juliet Cuthbert-Flynn was speaking directly with Mr. Hayles. This spliced audio presents a heated and contentious exchange, where Cuthbert-Flynn appears to be defending her actions regarding investments in Westmoreland against Hayles’ criticisms. The manipulated recording falsely portrays Cuthbert-Flynn having a discussion with Ian Hayle when no such conversation ever happened. The entire conversation is crafted to appear as a direct dialogue, when in reality, it is a misleading compilation of separate statements.

The incident involving the manipulated audio of Juliet Cuthbert-Flynn is a breach of the Data Protection Act, 2020, because it involves the unauthorized use and alteration of sensitive personal data—specifically, her voice. Under the Act, personal data, which includes biometric data such as voice recordings, must be processed fairly and lawfully with the data subject’s consent. In this case, the manipulation and public dissemination of Cuthbert-Flynn’s voice without her consent for deceptive purposes violates the first data protection standard that requires personal data to be processed fairly and lawfully.

Furthermore, the Act emphasizes the importance of ensuring the accuracy and integrity of personal data . The spliced audio misrepresents Cuthbert-Flynn’s statements, which not only breaches her privacy rights but also causes potential harm to her reputation and misleads the public. The deliberate distortion and dissemination of her voice data without consent are clear violations of the data protection principles, highlighting the ethical and legal implications of such actions under Jamaica’s data protection framework.

Further afield with have the exampleThe Cambridge Analytica Scandalthis is where personal data was misused to fuel misinformation.

Background:

1. Cambridge Analytica, a political consulting firm, illegally harvested data from millions of Facebook users without their consent. This data was used to create detailed psychological profiles of users.
2. These profiles enabled the firm to target individuals with tailored political ads and misinformation, influencing their voting behavior during the 2016 U.S. presidential election and the Brexit referendum.

Data Collection and Processing:

3. Cambridge Analytica collected personal data through a personality quiz app on Facebook. While only a few hundred thousand users directly interacted with the app, it exploited Facebook’s data-sharing policies to access the data of millions of users in their network.
4. The firm then processed this data to build comprehensive profiles, including information on users’ political preferences, psychological traits, and personal interests.

Targeted Misinformation:

5. Using the harvested data, Cambridge Analytica developed targeted political campaigns, delivering personalized messages designed to manipulate voters’ opinions and behaviors.
6. These campaigns included fake news stories and misleading advertisements aimed at reinforcing biases, spreading fear, and encouraging voter suppression.

Impact and Legal Repercussions:

7. The misuse of personal data in this manner had significant implications for the integrity of democratic processes, leading to widespread public outcry and legal action against both Cambridge Analytica and Facebook.
8. The scandal prompted numerous investigations and led to Facebook being fined and compelled to change its data privacy practices.

Jamaica’s Guidelines for Political Broadcasting

Previously the Jamaican government has sought to put in controls to safeguard our democratic processes, specifically to ensure fair treatment and prevent the spread of misinformation. One such example are our broadcasting guidelines that have been set out below. The controls however are only relevant in an analogue world, where few persons had access to broadcast platforms.

1. Equal Treatment:
   • Financial concessions for air-time offered to one political party or candidate must also be extended to others to avoid prejudice
2. Sponsor Identification:
   • All political broadcasts, including advertisements, must clearly identify the sponsor or political party affiliated with the broadcast
3. Election Silence Period:
   • Transmission of political broadcasts must cease 24 hours before the start of voting on Election Day. Additionally, no new opinion polls or surveys can be released within 48 hours of the start of voting.
4. Content Regulations:
   • Broadcasts must not be abusive or derogatory towards anyone based on race, color, creed, religion, or sex
   • Broadcasts must not be libelous
   • Broadcasts must not contain false or misleading information
   • Broadcasts must not incite violence, criminal activity, or public disorder
   • Broadcasts must not include violent content that offends against good taste, decency, or public morality

Democratization of Broadcasting and Digital Age Challenges

Broadcasting has now been democratized, with everyone having their platform to publish content. Social media and digital platforms have given individuals unprecedented reach and influence, making it easier to spread both accurate information and misinformation. The challenge for today’s government is to apply the same guidelines implemented in the traditional broadcast world to the digital age.

1. Challenges:
   • Regulation Enforcement: Ensuring compliance with broadcasting guidelines on digital platforms is complex due to the decentralized nature of the internet.
   • Content Monitoring: Identifying and removing false information across numerous platforms requires significant resources and collaboration with tech companies.
   • Balancing Rights: Upholding free speech while preventing the spread of harmful misinformation is a delicate balance that requires careful legal and ethical consideration.

Tracking Capabilities of the State

In seeking to address this undeniable threat to our democratic processes the government must be cautious as to how it seeks to address this danger. Prime Minister Andrew Holness has made reference to the state’s capabilities to track individuals, suggesting that these capabilities will soon lead to visible actions. This statement underscores the potential of government surveillance to manage misinformation and maintain national security. However, such tracking capabilities give rise to significant concerns about the balance between security and individual privacy. Extensive surveillance can easily lead to a surveillance state, where the constant monitoring of citizens’ activities infringes on their rights to privacy, freedom of expression, and association. This pervasive oversight can create a chilling effect, deterring individuals from openly expressing their opinions or associating with certain groups out of fear of being monitored, ultimately stifling democratic discourse and participation​ ​.

The Data Protection Act, 2020, mandates that any tracking or surveillance conducted by the government must comply with principles of transparency, accountability, and proportionality. According to Section 23, the processing of personal data by state authorities is permissible if it is necessary for tasks performed in the public interest or in the exercise of official authority. This requires the government to justify its surveillance activities, ensuring they are necessary and not excessive. Furthermore, the Act requires that individuals’ privacy rights are safeguarded against misuse, with robust measures in place to prevent unauthorized access or use of personal data. These legal requirements aim to strike a balance between national security and the protection of civil liberties, ensuring that government surveillance does not undermine the democratic values of freedom and privacy​

Conclusion

The rise of fake news in Jamaica is a significant concern that threatens the fundamental rights to freedom of thought, conscience, and political beliefs. By leveraging existing legislation, considering bespoke legislation, promoting transparency, and educating the public, Jamaica can combat the spread of misinformation and protect its democratic processes. Addressing these challenges is vital to ensure that the rights guaranteed by the Charter of Fundamental Rights and Freedoms are upheld and that democracy remains resilient in the digital age.

Chukwuemeka Cameron is an attorney-at-law, a privacy practitioner with a master’s in Information Technology and Management for Lawyers, and a certified lead implementer of ISO 27001. He is the founder of Design Privacy, a company that helps you comply with local and international privacy laws. He can be contacted at [email protected].