The Right to Freedom of Expression
Module 1: General Overview of Trends in Digital Rights Globally and Expected Developments
Recent trends indicate that the most significant threat to freedom of expression is the criminalisation of online speech. Criminalisation is effected through the enactment of laws which are generally vague and broad and give governments a wide range of powers to declare certain forms of online expression as offences. In recent years, legislation relating to cybercrime, social media, and disinformation (or “fake news”) have become increasingly popular tools through which to do so. Journalists and political dissidents and critics are particularly susceptible to these challenges and examples abound, particularly in Africa, of journalists being silenced, detained, and convicted on such laws. In Nigeria, for example, civil society has condemned the abuse of the 2015 Cybercrimes (Prohibition, Prevention, Etc) Act to harass journalists and other citizens. In Zimbabwe, journalists have been charged under various new “false news” provisions recently introduced into law.
Efforts to address disinformation
The Independent High-level Group on Fake News and Online Disinformation recorded that the spreading of false, inaccurate, or misleading information that is designed to intentionally cause harm or generate profit continues to be one of the most significant threats to freedom of expression. The World Economic Forum noted that in 2013 the terms “fake news” and “post-truth” began gaining traction. However, with Brexit and the election of Donald Trump, the “prevalence and impact of digital wildfires have surged”, with some instances of fake news stories outperforming legitimate stories from primary news sources. The COVID-19 pandemic from 2020 onwards added fuel to the fire with the rapid and widespread proliferation of false information relating to the spread of the virus, treatments, and vaccines.
Disinformation continues to poison the digital sphere creating serious risks for freedom of expression as states tighten controls. In 2021 Freedom House reported that global internet freedom declined for the 11th consecutive year and in 2020 that “in many places, it was state officials and their zealous supporters who actually disseminated false and misleading information with the aim of drowning out accurate content, distracting the public from ineffective policy responses, and scapegoating certain ethnic and religious communities.” The Disinformation Tracker, a collaborative civil society initiative, has documented the various responses taken by African states to the COVID-19 pandemic, including many laws criminalising false publications.
Even prior to the pandemic, the criminalisation of false news was popular around the world:
- Towards the end of 2019, the Protection from Internet Falsehood and Manipulation Bill 2019 was tabled in Nigeria. The Bill seeks to prohibit a long list of statements including false statements of fact and statements that are likely to be prejudicial to the country’s security, public health, public safety, public tranquillity, or finances. Statements that prejudice Nigeria’s relations with other countries, influence the outcome of an election or referendum, incite feelings of enmity, hatred towards a person, or ill will between a group of persons would also be monitored, and those who utter such statements would be liable to fines and, possibly, imprisonment.(1)
- Ethiopia has recently criminalised disinformation with the adoption of a new law that seeks to increase jail sentences and fines for hate speech and the dissemination of disinformation/(2)
- The Protection from Online Falsehoods and Manipulation Act (POFMA), enacted in Singapore in 2019, seeks to prevent the communication of false information and to suppress support for and counteract the effects of such information. POFMA further seeks to enable measures to detect, control and safeguard against coordinated inauthentic behaviour. POFMA prohibits a person who communicates a statement that is a false statement of fact, and that is likely to be (i) prejudicial to the security of Singapore; (ii) prejudicial to public health, public safety, public tranquillity or public finances; (iii) prejudicial to the friendly relations of Singapore with other countries; (iv) influence the outcome of an election; (v) incite feelings of enmity, hatred or ill‑will between different groups of persons; or (vi) diminish public confidence in government. A person who contravenes these provisions is guilty of an offence and liable on conviction to a fine or imprisonment.(3)
Despite the alarming and current rise of disinformation and the often disproportionate responses from state actors that threaten freedom of expression online, there is some comfort in knowing that there are organisations, institutions and states making a concerted and decisive effort to address this unfortunate and harmful trend.
Positive resources and examples for overcoming disinformation challenges
- UNESCO developed a “Journalism, fake news & disinformation: handbook for journalism education and training”.
- The European Union has published its “Code of Practice on Disinformation”.
- InterAction released a toolkit to assist people with preparing for online disinformation threats.
- In Finland, schools and community colleges are introducing lessons on disinformation to inform people at a young age about disinformation and how to guard against it.
- Viral Facts Africa was launched by the World Health Organisation (WHO)together with a network of fourteen fact-checking organisations and public health bodies to undertake health fact checks, explainers, myth busters and misinformation literacy messages optimised for sharing on Facebook, Twitter and Instagram, aiming to rapidly debunk myths where they occur and provide viral, credible information on the COVID-19 pandemic.
African Court engaging with issues regarding false news
The East African Court of Justice in Media Council of Tanzania and Others v Attorney-General of the United Republic of Tanzania and the Court of Justice of the Economic Community of West African States in Federation of African Journalists and Others v The Republic of The Gambia have ruled in favour of upholding the fundamental right to freedom of expression and have called for the repeal of vague and broad provisions that seek to stifle freedom of expression.
There is a corresponding trend that is seeking to overcome disinformation threats through education, media literacy, awareness, and dialogue. Despite negative forecasts, the rise of digital activism looks to play a critical and positive role in rerouting the current trajectory.
Efforts to address hate speech
The 2019 UN Strategy and Plan of Action on Hate Speech advises:
“Around the world, we are seeing a disturbing groundswell of xenophobia, racism and intolerance – including rising anti-Semitism, anti-Muslim hatred and persecution of Christians. Social media and other forms of communication are being exploited as platforms for bigotry. Neo-Nazi and white supremacy movements are on the march. Public discourse is being weaponised for political gain with incendiary rhetoric that stigmatises and dehumanises minorities, migrants, refugees, women and any so-called ‘other’.”
There is undoubtedly a need to counteract the above groundswell. However, states are quickly turning to criminalisation to address this, rather than addressing the systemic issues of perceptions, ignorance, privilege, and inequality. Hate speech is a vague term that lacks universal understanding, and legal provisions are often open to abuse and restrictions on a wide range of lawful expression.
A range of legislative developments are in motion across Africa, such as:
- South Africa’s Parliament is considering the Prevention of Combating of Hate Crimes and Hate Speech Bill which aims to create new legal definitions and procedures to combat hate crimes and hate speech
- In Kenya, the 2008 National Cohesion and Integration Act (NCIC) seeks to foster national cohesion and integration by outlawing discrimination and hate speech on ethnic grounds. .
- The proposed Prohibition of Hate Speech Bill in Nigeria is another relevant example.
However, international law standards and guidance are increasingly encouraging states to move away from sanctions and prohibitions towards more positive measures. ARTICLE 19 emphasises that states should engage with the symptomatic causes of hate speech rather than adopting a singularly punitive approach. The 2019 UN Strategy and Plan of Action on Hate Speech seeks to focus on the root causes and drivers of hate speech and to ensure effective responses that do not criminalise freedom of expression that should be protected. The plan lists a variety of commitments, including:
- Monitoring and analysing hate speech.
- Engaging and supporting the victims of hate speech.
- Convening relevant actors.
- Engaging with new and traditional media.
- Using education as a tool for addressing and countering hate speech.
- Fostering peaceful, inclusive and just societies to address the root causes and drivers of hate speech.
- Developing guidance for external communications.
Continued disinformation and the promotion of hateful speech should be anticipated as our reliance on online spaces continues to increase and political polarisation continues to be amplified by automated online systems. However, there are parallel pushes to engage more meaningful and substantively with hate speech and find ways that address hate speech without limiting freedom of expression.
Harassment of journalists, bloggers and other professionals
In 2022, the UN reported that threats to media workers’ freedoms are growing by the day, with journalists facing “increasing politicisation” of their work and threats to their freedom to simply do their jobs. In particular, the COVID-19 pandemic and coverage of climate change, biodiversity and pollution have attracted threats and efforts to silence journalistic outputs. The UN Secretary-General noted that journalists are threatened “by the weapons of falsification and disinformation” and that digital technology is making censorship easier for authoritarian governments and others seeking to suppress the truth. Women journalists are particularly at risk of online violence and harassment, with the UN Educational, Scientific and Cultural Organization (UNESCO) reporting that nearly three-quarters of women journalists having experienced online violence, and 30% having responded to online violence by self-censoring on social media.
Journalists fulfil an important role in any society but are too often at risk, threatening their ability to fulfil their critical function as the fourth estate. Comprehensive statistics illustrate the challenges faced by journalists:
- Reporters Without Borders found that 68% of journalists in Pakistan have reported being harassed online.
- The Committee to Protect Journalists found that in the United States, 90% of journalists believe that online harassment is the biggest threat to their profession.
- A global survey conducted by the International Centre for Journalists and the Tow Center for Digital Journalism shows that 20% of respondents describe their experience of online abuse as “much worse than usual” during the COVID-19 pandemic.
A 2017 Reporters without Borders study by the Council of Europe indicated that:
- 31% of journalists water down their coverage of stories after being harassed.
- 15% of journalists drop the story.
- 23% of journalists don’t cover specific stories.
- 57% of journalists do not report that they have been the targets of online violence.
UNESCO has also found that in addition to large-scale attacks or extreme threats, the “slow burn” of lower but nearly constant levels of abuse also has insidious effects, causing PTSD, depression, and anxiety to drive journalists out of the newsroom. Black, Indigenous, Jewish, Arab, and lesbian women journalists participating in the UNESCO survey experienced both the highest rates and most severe impacts of online violence.
The harassment of journalists is a global issue and remains deeply entrenched. UN bodies are calling for protection, and civil society actors are assisting where they can. Still, there needs to be a far more concrete and legitimate effort, particularly by states, to ensure the safeguarding of journalists. With the growing reach and influence of social media, new methods of harassing journalists are also becoming prominent. This includes, for example, cyber-harassment, online gender-based violence, and the use of Strategic Litigation Against Public Participation (SLAPP) suits to stifle and silence critics, leveraging either civil defamation or other legal strategies to bury critics in legal challenges. Efforts to counter these new online threats can rely on a robust body of case law holding that journalists must be protected and enabled to carry out their jobs safely. In the important case of Brown v Economic Freedom Fighters in South Africa, the High Court held that the failure of a political party to condemn its supporters’ harassment of and threats against a journalist violated the South African Electoral Code.(4)