In the Fight Against Coronavirus Fake News, Israel Police May Harm Free Speech

Some fear that investigations into fake news, which don't require approval by the state prosecutor, will be opened against those voicing legitimate criticism of authorities

Josh Breiner
Josh Breiner
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Police in Bnei Brak on April 5, 2020.
Police in Bnei Brak on April 5, 2020.Credit: Meged Gozani
Josh Breiner
Josh Breiner

A message that made the rounds on Whatsapp this week created an uproar: “Health Ministry Director General Moshe Bar Siman Tov has contracted the coronavirus and is quarantined.” The immediate denial didn’t help, and the rumor spread like a contagious virus.

The person who initially sent the message has yet to be found and there is almost no chance that the police will find him, but they aren’t giving up. Along with the steps the government has adopted against those violating social distancing and quarantine regulations, there is a new target: an uncompromising battle against people disseminating fake news. The finest forces have been recruited: the cybercrimes unit of the Lahav 433 police anti-corruption unit and the State Prosecutor’s Office.

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The police say 20 people have been investigated so far on suspicion of creating fake news, and they have opened 43 investigations. But Haaretz has learned that the actual number is 10. The police need the prosecution’s approval to investigate freedom of expression crimes such as incitement to violence and terror, but not crimes of spreading fake news.

In effect, if the complaint comes from a source other than the Health Ministry, the police must decide whether the report is false – although they have no medical authority. What happens is that jokes among friends about the pandemic or rumors in neighborhood WhatsApp groups (like “there are hundreds of coronavirus patients in the neighborhood”) can bring the people behind them to Lahav 433’s investigation rooms.

One person who has already spent four hours there is a Rishon Letzion resident who sent a message in the name of the Health Ministry to his girlfriend, who had returned from Miami, in an effort to get her to self-quarantine. He was investigated for four crimes, including publishing false information to cause fear and panic and transmitting false information. The young man used software to make his messages look like they came from the Health Ministry. He sent a message to the woman to quarantine herself and another to her friend, telling her to keep her distance.

“I was really scared,” said the friend, “I thought it was a message from the Shin Bet [security service].” The messages were forwarded to several WhatsApp groups and reached the media. “I only wanted her to quarantine herself, I was being a good citizen,” said the young man. “Instead of letting the government take care of her, I sent her a message. Is that a criminal offense?”

“Stupidity is still not a criminal offense,” says attorney Avner Pinchuk of the Association for Civil Rights in Israel. “Each event must be examined based on the circumstances: What was the intention, how widely was the message disseminated, what were the results. Investigating someone for saying that the director general of the Health Ministry is ill is very weak.” He added, “If we look at the rulings and the law, we see an attempt to narrow crimes related to fake news. There must be oversight by a very senior official before opening investigations about fake news.”

Pinchuk warns about the situation in Hungary, where last week the parliament approved new laws that give a five year jail term for those disseminating false information about the coronavirus and could silence critics of the government.

Absent the involvement of the state prosecutor, investigations in Israel may undermine freedom of the press. The law allows the police to investigate journalists on suspicion of disseminating fake news. A reporter can be investigated if he criticizes Health Ministry policy, questions data about the spread of the virus or publishes a report causing public panic. But a source in the prosecutor’s office said that even now, “It is unconscionable” for a journalist to be prosecuted for publishing an erroneous report. “The cases we deal with are clearly fake,” the source said.

According to the law, “Anyone who publishes or reproduces a statement, rumor or report likely to encourage public fear and panic, and knows or can assume that it is false, will receive a three-year prison term.” But the law also protects those posting fake news, including anyone who “took reasonable steps to verify their accuracy.”

The last person to be convicted for fake news was a young hacker from Ashkelon who made fake bomb threats to a number of airlines. He was sentenced to 10 years in prison, which was later commuted to seven years.

The police announced on Sunday that Lahav 433 has finished investigating four suspects, who had separately sent false information about the obligation to be quarantined and fines for coronavirus regulations. The four are all suspected of using an unidentified number and pretending to be representatives of the Health Ministry. “They thereby caused panic among those who received the messages, their relatives and those around them,” the police said.

The Health Ministry is also fighting against disseminators of fake news along with the police. A spokesman for the ministry said this week it immediately sends any instance of false news it encounters to the police rather than to the prosecutor’s office or to the websites where the information is spread, such as Facebook, to ask it to remove the content.

“Dealing with fake news is usually not about its creator but about the viral nature of dissemination and the need to immediately remove the information from digital channels,” says Dr. Tehilla Altshuler of the Israel Democracy Institute. “That’s why government ministries and security organizations report to the cybersecurity unit in the State Prosecutor’s Office. The Health Ministry has created a channel only with the police, going against the usual practice.

She said that bypassing the prosecution could be dangerous. “It could cause a delay in removing content that should be removed immediately, and create an inflation of criminal investigations against specific individuals, who could be disseminating fake news deliberately but may be expressing legitimate criticism about the way government authorities are operating, even during this time of emergency.”

The police’s free hand in investigating disseminators of fake news may be halted by the prosecution’s cybersecurity unit, which will decide who should be prosecuted. Legal scholars say that the greater the panic caused by the message, the greater the chance of an indictment. That’s why an investigation has been opened against someone who sent a Facebook message that the cure for the virus is vitamin C, and called on his followers not to turn to the authorities if they are infected.

When messages are sent to specific people, the police can easily find the source. The problem is with chain messages on WhatsApp, where it’s almost impossible to find the origin. In the shadow of the coronavirus, the prosecution is benefiting from cooperation with Facebook (owner of WhatsApp and Instagram) and Twitter, which sometimes remove fake news about the virus on their own cognizance.

But even if they locate the source, the prosecution has to prove that the fake news caused public panic. “For example, a message that says, ‘There are 10 coronavirus patients running through the street’ clearly creates panic,” says a prosecution source. “We’re not trigger-happy but there’s a national mission. On the other hand, we shouldn’t be overly motivated and do damage to people who erred by posting bad jokes.”

The police promise to “act with professionalism and determination, with the aim of interrogating anyone choosing to disseminate fake news that could deceive and sow panic among the general public.”

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