The Right to Freedom of Expression

Recent trends indicate that the most significant threat to freedom of expression around the world is the criminalisation of online speech. Criminalisation is affected 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, 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. For example: Zimbabwe’s Data Protection Act criminalises the spreading of false information online,(1) and Botswana’s Penal Code criminalises publishing “alarming information”.(2)

A growing pandemic of mis- and disinformation

The rise of what has come to be understood as a global crisis of mis- and disinformation has been accompanied by harsh efforts to crack down on this kind of content by governments, with concomitant risks for the right to freedom of expression online. The consequences of disinformation are far-reaching and can cause significant public harm — such as hampering the ability of the public to make informed decisions or putting public health, security, or the environment at risk. The rapid and widespread proliferation of false information relating to the COVID-19 pandemic and climate change are pertinent examples of this.

Disinformation continues to poison the digital sphere creating serious risks for freedom of expression as states tighten controls. In 2023, Freedom House reported that global internet freedom declined for the 13th consecutive year.(3) AI tools have also become increasingly sophisticated and widely used in this regard, spurring an escalation of disinformation tactics employed by governments to manipulate online discussions in their favour.

The COVID-19 pandemic gave rise to an outbreak of disinformation, often referred to as an infodemic. This led to many countries to implement false information legislation. For example, South Africa implemented disaster management regulations that created content-related offences with respect to publishing statements surrounding COVID-19.(4) However, even prior to the pandemic, the criminalisation of false news has been popular in Africa:

• Zimbabwe’s Data Protection Act, which, as of January 2024 has been enacted but is not yet in force, criminalises the spreading of false information online. The Act states that any person who unlawfully and intentionally makes available, broadcasts, or distributes data to any other person concerning an identified or identifiable person knowing it to be false, with intent to cause psychological or economic harm, will be guilty of an offence. Civil society has raised concerns that this provision promotes self-censorship, and unjustifiably infringes on freedom of expression.(5)

• 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.(6)

• In 2020, Ethiopia passed legislation that increases jail sentences and fines for hate speech and the dissemination of disinformation. Similar to other disinformation laws, commentators have raised concerns about the legislation’s violation of freedom of expression.(7)

There are also growing concerns that the rise of AI tools is enabling the production and amplification of mis- and disinformation on an unprecedented scale and in ways that make identification and moderation of such content extremely difficult.(8) Freedom House has also documented the use of AI by governments to conduct propaganda and spread disinformation.(9)

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.

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.

More Resources on False News and Misinformation

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’.”(10)

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 passed 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. (As of January 2024, the Bill had been passed by Parliament and is waiting to be signed into law.)

• The proposed Prohibition of Hate Speech Bill in Nigeria is another relevant example, but it was withdrawn after public outcry.(11)

However, international law standards and guidance are increasingly encouraging states to move away from sanctions and prohibitions towards more positive measures. ARTICLE 19, for example, emphasises that states should engage with the symptomatic causes of hate speech rather than adopting a singularly punitive approach.(12) 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 that UN entities should take, 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 meaningfully and substantively with hate speech and find ways that address hate speech without limiting freedom of expression.

More Resources on Hate Speech

Online violence against journalists, bloggers, and other professionals

In 2023, the UN warned of a concerning trend of the escalation of violence and repression against journalists and other communicators.(13) Harassment of journalists, bloggers, and other professionals is the most extreme form of media censorship and creates a climate of fear which impedes the free circulation of information, opinions, and ideas. In particular, the COVID-19 pandemic and coverage of climate change, biodiversity, and pollution have attracted threats and efforts to silence journalistic outputs.

According to a 2021 UNESCO discussion paper, women journalists are most impacted by threats and attacks, with 73% of women journalists surveyed saying that they have been threatened, intimidated, and insulted online in connection with their work and 30% having responded to online violence by self-censoring on social media.(14)

Factsheet: Gender & Online Harassment

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. A global survey conducted by the International Centre for Journalists and the Tow Centre for Digital Journalism shows that 20% of respondents describe their experience of online abuse as “much worse than usual” during the COVID-19 pandemic.(15) In the United States, 90% of journalists believe that online harassment is the biggest threat to their profession.(16)

The consequences of these attacks are significant for freedom of expression. A 2017 Reporters without Borders study by the Council of Europe further indicated that:(17)

• 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’s research 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.(18) Black, Indigenous, Jewish, Arab, and lesbian women journalists participating in the 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, for example, 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.(19)