Forms of Criminalisation
Module 3: Criminalisation of Online Speech
While there is an array of actions and forms of speech that have attracted criminal sanctions, this section focuses on those that are most commonly criminalised in Africa: hate speech, cybercrimes, and disinformation.(1)
Hate speech
The reconciliation of values
A 2019 Report by the UNSR on FreeEx found that:
“Under international human rights law, the limitation of hate speech seems to demand a reconciliation of two sets of values: democratic society’s requirements to allow open debate and individual autonomy and development with the compelling obligation to prevent attacks on vulnerable communities and ensure the equal and non-discriminatory participation of all individuals in public life. Governments often exploit the resulting uncertainty to threaten legitimate expression, such as political dissent and criticism or religious disagreement. However, the freedom of expression, the rights to equality and life and the obligation of non-discrimination are mutually reinforcing; human rights law permits [s]tates and companies to focus on protecting and promoting the speech of all, especially those whose rights are often at risk, while also addressing the public and private discrimination that undermines the enjoyment of all rights.”
The above statement illustrates some of the complexities regarding the criminalisation of hate speech. The escalation of prejudice and intolerance has led many governments to prioritise limiting and punishing such speech online, including through criminalisation. However, hate speech is a vague term that is deeply contextual and lacks universal understanding, and such provisions are open to abuse that can restrict a wide range of lawful expression.
Overview of international instruments dealing with hate speech
- Article 20(2) of the ICCPR obliges states to prohibit by law “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.”
- The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) calls upon States in article 4 (a) to ban a broader range of speech, notably that State should “declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred [and] incitement to racial discrimination”(2) as well as “organised and all other propaganda activities, which promote and incite racial discrimination.”(3)
- The Rabat Plan of Action was introduced in 2012 to bring together conclusions and recommendations on regulating hate speech from several workshops by the UN Office of the High Commissioner for Human Rights (OHCHR). It provides recommendations on the prohibition of advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence. It outlines six factors that should be considered when determining whether a speaker intends and is capable of having the effect of inciting their audience to engage in violent or discriminatory action through the advocacy of discriminatory hatred.
- The UN Strategy and Plan of Action on Hate Speech recognises that public discourse is being weaponized for political advantage, with minorities, migrants, refugees, women, and other marginalized groups often the target of inflammatory language designed to stigmatise and dehumanise.
- The 2019 report of the UNSR on FreeEx also evaluates the human rights law that applies to the regulation of online hate speech and recommends that States should not treat online hate speech as a separate category from offline hate speech with higher penalties, should strictly define what constitutes prohibited content in their domestic laws, and should resist criminalising speech except in the gravest situations.
- The Convention on the Prevention and Punishment of the Crime of Genocide also deals with matters related to hate speech and calls on “direct and public incitement to commit genocide” to be punishable by law.
- Although the African Charter does not deal explicitly with hate speech, Article 28 states that “every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.”
- The African Declaration aligns with international standards in providing in principle 23(1) that “States should prohibit any speech that advocates for national, racial, religious or other forms of discriminatory hatred which constitutes incitement to discrimination, hostility or violence.” It likewise emphasises that States should criminalise prohibited speech “only as a last resort and only for the most severe cases” taking into six key factors: context, status of the speaker, intent, content and form, extent, and likelihood and imminence of harm.(4)
It is generally agreed under international human rights law that the prohibition against hate speech should be applied narrowly and with great caution, ensuring that it addresses only cases of real and imminent danger of incitement of violence in order not to infringe on the right to freedom of expression. As stated in the African Declaration, “States shall not prohibit speech that merely lacks civility, or which offends or disturbs.”(5)
Rabat Plan of Action: Six-part threshold test for expressions considered as criminal offences
The Rabat Plan of Action sets out six criteria to be used for determinations of hate speech that provide guidance on how to ensure this narrow and cautious approach in practice:(6)
“Context: Context is of great importance when assessing whether particular statements are likely to incite discrimination, hostility or violence against the target group, and it may have a direct bearing on both intent and/or causation. Analysis of the context should place the speech act within the social and political context prevalent at the time the speech was made and disseminated.
Speaker: The speaker’s position or status in the society should be considered, specifically the individual’s or organization’s standing in the context of the audience to whom the speech is directed.
Intent: Article 20 of the International Covenant on Civil and Political Rights anticipates intent. Negligence and recklessness are not sufficient for an act to be an offence under article 20 of the Covenant, as this article provides for “advocacy” and “incitement” rather than the mere distribution or circulation of material. In this regard, it requires the activation of a triangular relationship between the object and subject of the speech act as well as the audience.
Content and form: The content of the speech constitutes one of the key foci of the court’s deliberations and is a critical element of incitement. Content analysis may include the degree to which the speech was provocative and direct, as well as the form, style, nature of arguments deployed in the speech or the balance struck between arguments deployed.
Extent of the speech act: Extent includes such elements as the reach of the speech act, its public nature, its magnitude and size of its audience. Other elements to consider include whether the speech is public, what means of dissemination are used, for example by a single leaflet or broadcast in the mainstream media or via the Internet, the frequency, the quantity and the extent of the communications, whether the audience had the means to act on the incitement, whether the statement (or work) is circulated in a restricted environment or widely accessible to the general public.
Likelihood, including imminence: Incitement, by definition, is an inchoate crime. The action advocated through incitement speech does not have to be committed for said speech to amount to a crime. Nevertheless, some degree of risk of harm must be identified. It means that the courts will have to determine that there was a reasonable probability that the speech would succeed in inciting actual action against the target group, recognizing that such causation should be rather direct.”
Identifying hate speech
It is sometimes tricky to distinguish between speech that is protected and that which constitutes hate speech.
- Hate speech may be prohibited only if the prohibition meets the standards of article 19(3), namely:(7)
- Legality: laws criminalising hate speech must be precise, public, and transparent.
- Legitimacy: laws should be justified to protect and respect the rights or reputations of others or to protect national security, public order, public health or morals.
- Necessity and proportionality: the criminalising legislation must protect a legitimate interest and be the least restrictive means to achieve the purported aim.
- Hate speech that is lawful and that should be protected.
- Inflammatory or offensive expression that does not meet the above thresholds. Notably, this may include speech that is critical or that causes shock or offence.
Online hate speech
The nature of online domains, such as social media, creates conditions for the sharing and spreading of hate speech that are relevant to considerations of how to appropriately regulate hate speech. For example:
- Content is more easily posted online without due consideration or thought. Regulation must distinguish between poorly considered statements posted hastily online, and an actual threat that is part of a systemic campaign of hatred.
- Once content is online, it can be difficult (or impossible) to remove entirely. Hate speech posted online can persist in different formats across multiple different platforms, which can make it difficult to police.
- Online content is frequently posted under the cover of anonymity, which presents an additional challenge to dealing with hate speech online.
- The internet has transnational reach, which raises cross-jurisdictional complications in terms of legal mechanisms for combatting hate speech.
ARTICLE 19 Hate Speech Explained: A Toolkit
ARTICLE 19 has published a toolkit on identifying and countering hate speech while protecting the rights to freedom of expression and equality. It defines hate speech as containing three core elements:
- “Intense and irrational emotion of opprobrium, enmity, and detestation towards an individual or group;
- Any expression of hate towards an individual or group defined by protected characteristics;
- Any expression imparting opinions or ideas — bringing an internal opinion or idea to an external audience.”
Some of the peculiar elements of online hate speech were highlighted in recent incidents in Africa:
- In the run-up to the elections in Kenya in August 2022, there was a concerning rise in hate speech and calls for ethnic violence circulating on social media.(8) The National Cohesion and Integration Commission (NCIC) issued an ultimatum to Meta to tackle hate speech and incitement on its platform within seven days or risk being suspended.
- In Ethiopia, reports of calls for violence targeting ethnic minorities on social media platforms have abounded amidst the ongoing conflict in the Tigray region of the country.(9) The conflict between the Ethiopian federal government and the Tigray Peoples Liberation Front has resulted in the closure of media outlets and the arrest of journalists and online bloggers. On 3 November 2021, Facebook removed Ethiopian Prime Minister Abiy Ahmed’s social media post stating that it had violated the platform’s policies against inciting violence.(10)
- In South Africa, online hate speech has fuelled xenophobic sentiment against non-South African workers in what appears to be a coordinated attempt to manipulate online conversations by seeding and sharing xenophobic hate speech.(11) Research by Global Witness and the Legal Resource Centre in 2023 revealed the wholesale failure of the online platforms to identify and remove such content, even where it clearly violated their own community standards.(12)
Gendered hate speech
In her 2023 report to the UN General Assembly, the UNSR on FreeEx emphasised the strong connections between online gender-based violence and hate speech, noting that gendered disinformation is a common tactic used by both public and private actors online to target and discourage participation from women.(13) In turn, gendered disinformation intersects with hate speech, with many disinformation campaigns attacking women including incitement to violence, hostility, and discrimination.
At the same time, the UNSR emphasises the need for differentiated but aligned responses to the various threats posed by gender-based violence, gendered disinformation, and gendered hate speech online that respond to the varying international legal standards applicable to each phenomenon.
Incidences of hate speech regulation
Unfortunately, there are numerous examples of countries attempting to pass, or successfully passing, hate speech legislation that includes criminal penalties, particularly in Africa:
- In 2020 Ethiopia enacted the Hate Speech and Disinformation Prevention and Suppression Proclamation which, while having seemingly well-intentioned objectives, has been decried by civil society as a threat to freedom of expression and access to information online.(14)
- In Nigeria, the National Commission for the Prohibition of Hate Speech Bill (known as the Hate Speech Bill) was tabled in 2019 which sought to prohibit “abusive, threatening, and insulting behaviour,” and provided for life imprisonment for the crime of hate speech.(15) Nigerian CSO Media Rights Agenda instituted an action in the Federal High Court in Lagos challenging the constitutionality of the bill in 2020.(16) The sponsor of the Bill reportedly committed to amending the Bill in response to the public backlash.(17) Another bill was tabled in 2022 to establish a National Electoral Offences Commission that proposed to classify hate speech as an electoral offence that would attract a jail term of 10 years or a fine of N40m or both.
- On 5 December 2023, South Africa’s legislature passed the Prevention and Combating of Hate Crimes and Hate Speech Bill, which is currently awaiting Presidential Signature before it comes into force. The Bill has been criticised for its potential to be used to silence free speech and criticism and to stymie difficult discussions about race, gender, and sexuality and, as such, there have been multiple calls from civil society for the President to not sign it.(18)
Research has also pointed out that the wording of article 20 of the ICCPR is rarely found in domestic legislation on the continent.(19)
Case note: Vague, ambiguous and overbroad hate speech provisions
In the recent case of The Incorporated Trustees of Expression Now Human Rights Initiative v. Federal Republic of Nigeria (2023), the ECOWAS Court held that provisions of Nigeria’s Broadcasting Code violated the right to freedom of expression in the African Charter because its provisions on offensive and hate speech prohibited speech that was protected, were too vague, ambiguous and overbroad, and the sanctions imposed were excessive. The Court ordered Nigeria to bring the provisions into alignment with international standards.
Taking action on hate speech
As states are not always fulfilling their duties regarding hate speech, lawyers, civil society organisations (CSOs), individuals, and community members need to work together to ensure that states are acting in compliance with their international human rights obligations in regulating hate speech. This can include strategic litigation, policy reform and advocacy, such as:
- Ensuring that states are creating an enabling environment for the right to freedom of expression. This can include ratifying international and regional human rights instruments, adopting domestic laws to protect freedom of expression and repealing any laws that unduly limit the right to freedom of expression.
- Ensuring that states safeguard the rights of individuals who exercise their right to freedom of expression. This requires ensuring that states make a concerted effort to end impunity for attacks on independent and critical voices.
- Ensuring that domestic laws guarantee equality before the law and equal protection of the law. That includes protection against discrimination on all grounds recognised under international human rights law.
- Ensuring that states establish or strengthen the role of independent equality institutions or expand the mandate of national human rights institutions.
- Ensuring that states adopt a regulatory framework for diverse and pluralistic media, which promotes pluralism and equality.
Cybercrime
There is no single uniform or universally accepted definition for cybercrime, and there is an ongoing debate as to what the term entails. Some of the explanations and definitions advanced cover “a whole slew of criminal activity” including the theft of personal information, fraud, and the dissemination of ransomware.(20) Cybercrimes can also be the online extension of existing offline crimes such as harassment and sexual abuse, or producing, offering to make available, or making available, and distributing racist and xenophobic material.(21) Cybercrimes may be categorised as follows.(22)
| Category | Examples of crimes |
|---|---|
| Offences against the confidentiality, integrity and availability of computer data and systems | Illegal access (hacking)
|
Illegal data acquisition (data espionage)
|
|
Illegal interception
|
|
Data interference
|
|
| Content-related offences |
|
| Copyright and trademark-related offences |
|
| Computer-related offences |
|
Cybercrime and cybersecurity are two interlinked issues in an interconnected digital environment. Cybersecurity, or the management and prevention of cybercrime, refers to the collection of tools, policies, security concepts, security safeguards, guidelines, risk management approaches, actions, training, best practices, assurance, and technologies that can be used to protect the cyber-environment and organisational and user’s assets, such as computing devices, applications, and telecommunication systems.(23)
Overview of international instruments
Currently, three prominent international instruments engage the topic of cybercrime:(24)
- The 2001 Council of Europe Convention on Cybercrimes (Budapest Convention) is the first international treaty that seeks to address internet and computer crimes. Its main objective is to pursue a common criminal policy aimed at the protection of society against cybercrimes by adopting appropriate legislation and fostering international co-operation. It has been widely ratified by countries outside of Europe as well and served as a guide for the development of many domestic cybercrime laws in Africa.
- The Council of Europe Additional Protocol to the Convention on Cybercrimes (Treaty No. 189) concerns the criminalisation of acts of a racist and xenophobic nature committed through computer systems. As an international legal instrument, the Protocol provides guidance and plays a key role in facilitating harmonisation across different legal regimes on the issue of specific forms of online speech.
- The 2014 African Union Convention on Cybersecurity and Personal Data (Malabo Convention), is a treaty dealing with cybercrime, data protection and related issues for the African continent. In 2023, the Malabo Convention finally came into effect after ratification by the 15th state party.(25) It encourages states to take necessary legislative and/or regulatory measures to establish criminal offences relating to several cybercrimes as well as data protection violations. Of relevance, it defines, in Section II, article 29(3), the content-related offences which state parties should criminalise. These relate to CSAM, xenophobic and racist content, as well as threats to commit offences or insults against a person based on their protected characteristics. This raises some concerns about the potential effects of free speech in the online context. For instance, it uses vague language which may be open to abuse by states. An example is the provision that criminalises the use of insulting language, which may be seen to contrast with international law standards as discussed above This can lead to subjective prosecutions and, eventually, may lead to criminal convictions for what should be protected speech.
The rise in cybercrime laws
The UNODC has found that cybercrime laws are of particular relevance to the criminalisation of online speech because the laws that are enacted to regulate cybercrimes can result in the restriction of freedom of expression. One of the main concerns about the plethora of cybercrime laws is that many of them lack clear definitions and are susceptible to being used to regulate online content and restrict freedom of expression.(26) This is a growing concern among human rights defenders, as many have been subjected to a wave of arrests and convictions in what is an escalating assault on freedom of expression through cybercrime laws.
In addition, the UN Ad Hoc Committee to Elaborate a Comprehensive International Convention on Countering the Use of Information and Communications Technologies for Criminal Purposes, which is currently considering the development of a UN Cybercrime Treaty, has been criticised for the inclusion of speech-related offences.(27) The final text of the treaty is expected to be presented to the UN General Assembly in 2024.(28)
Cybercrime laws in Nigeria
While there may be legitimate aims in enacting these laws, there are serious concerns that many are vague and overbroad and are susceptible to being used to restrict freedom of expression. Amnesty International has reported a growing trend of arrests, detention and torture of journalists and bloggers as well as pointed attacks on major media houses under the guide of cybercrime enforcement under the Cybercrime Act and the Terrorism (Prevention) (Amendment) Act.(29)
This situation may be exacerbated if the proposed Protection from Internet Falsehoods and Manipulation Bill (known as the Social Media Bill) is passed into law. The Bill is aimed at enabling measures to be taken to detect, control and safeguard against uncoordinated and inauthentic behaviour and other misuses of online accounts and bots, enabling measures to be taken to enhance disclosure of information regarding paid content directed towards a political end and to sanction offenders.
The Bill seeks to criminalise, among other things, prohibited statements of facts which include 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, prejudice Nigeria’s relations with other countries, influence the outcome of an election or referendum, incite feelings of enmity, hatred towards a person, ill will between a group of persons, or diminish public confidence in the performance or exercise of any duty, function or power by the government.
If this Bill is passed, it could mean a further affront to freedom of expression in Nigeria, which as it stands is under threat due to the cybercrime legislation that is already in existence. Further, the Bill gives the State wide-ranging powers, which may be susceptible to abuse.(30)
It is also notable that in The Incorporated Trustees Of Laws And Rights Awareness Initiatives v. Federal Republic of Nigeria (2020) ECOWAS Court found that Section 24 of the Cybercrime (Prohibition, Prevention, etc.) Act, 2015 violated the right to freedom of expression in article 9 of the African Charter and article 19 of the ICCPR because the provision was not necessary in a democratic society and disproportionate and thus ordered Nigeria to repeal or amend the offending provision.(31)
Section 24 criminalised the sending of messages that were, among other things, grossly offensive, obscene, or menacing, or which were known to be false and could cause annoyance, insult, enmity, or needless anxiety, and had, as reported by the Applicants, been used to repeatedly intimidate its members, associates, and employees which were journalists, bloggers, and activists.
In addition to being used to harass or punish speakers online, cybercrime laws can and have also been used to surveil activists and journalists. For example, the 2019 Report of the UNSR on FreeEx noted:
“A surge in legislation and policies aimed at combating cybercrime has also opened the door to punishing and surveilling activists and protesters in many countries around the world. While the role that technology can play in promoting terrorism, inciting violence and manipulating elections is a genuine and serious global concern, such threats are often used as a pretext to push back against the new digital civil society.”
The Sudanese Cybercrime Law
As another example of problematic cybercrime legislation on the continent, ARTICLE 19 has criticised Sudan’s Cybercrime Law of 2018 for:
“punish[ing] numerous content-based offences that have nothing to do with preventing cybercrime. These include provisions on provoking hatred against foreigners, defamation, insults, and abuses that fail to comply with freedom of expression standards. The Cybercrime Law has been used in the past to suppress independent journalism and reporting during the Covid-19 pandemic. Several Sudanese journalists and activists were persecuted and threatened using the law over publications they posted on social media criticising the authorities.”
Several forms of information disorders have become of increasing relevance in the information age due to their ability to be rapidly and widely spread online and their impacts in undermining access to accurate information and enabling coordinated propaganda and other political campaigns.
Importantly, misinformation and disinformation should be distinguished as follows:(32)
- Disinformation: Information that is false and is disseminated by a person who knows it is false.
- Misinformation: Misinformation is information that is false, but the person who is disseminating it believes that it is true.
Disinformation that is designed to look like news content is sometimes popularly referred to as “fake news” or “false news,” but this term has been criticised for:(33)
- Being inadequate to capture the complex problem of disinformation, which involves content that blends fabricated information with facts.
- Being misleading as it has been appropriated by some politicians and their supporters to dismiss coverage that they find disagreeable and has thus become a weapon with which powerful actors can interfere in the circulation of information and attack and undermine independent news media.
The extensive problems of the mis- and disinformation epidemic were made clear in recent years with revelations of concerted online disinformation campaigns being operated by foreign state and non-state actors to interfere in several election processes.(34) The COVID-19 pandemic also highlighted the capacity for the rapid spread of disinformation, which undermined efforts to address the disease and roll-out treatments and vaccines.
In response to this growing trend, several states in SSA have enacted legislation criminalising the online publication of false statements. Such responses continue to increase in speed and magnitude and cause demonstrable and significant public harm. The 2017 Joint Declaration on Fake News, Disinformation and Propaganda by the UNSR on FreeEx, together with regional counterparts, noted that countering these issues poses complex challenges that could result in censorship and the suppression of critical thinking. It emphasised that restrictions on speech must meet the limitations test under international law and that “general prohibitions… based on vague and ambiguous ideas, including “false news” or “non-objective information,” are incompatible with international standards… and should be abolished.”(35) Importantly, the Joint Declaration also emphasised the positive obligations of states to promote a free, independent, and diverse media environment as a means of addressing disinformation and propaganda, which includes establishing a clear regulatory framework, supporting a strong public service media, and advancing media and digital literacy.
The UNSR on FreeEx also stated very clearly in 2023 that:
“It is important to note that international law does not allow speech to be prohibited solely on grounds of falsity. What is or is not false is a contentious issue. Furthermore, speech often consists of opinions and perspectives not suited to this binary categorisation. State practice shows that laws that prohibit “false news”, purportedly as a measure against disinformation, are used in effect to suppress speech that is critical of the Government.”(36)
The African Declaration adopts a similar stance under principle 22 which requires states to repeal all laws that criminalise the publication of false news.(37)
According to LEXOTA, an interactive tool to track and analyse government responses to online disinformation across SSA, three countries in the region have disinformation-specific laws while 84 have general speech laws that address false information and pose risks to freedom of expression. Some examples include:
- Cameroon: The Penal Code in Cameroon, under Section 113, criminalises the sending out or propagation of false information and imposes a penalty of imprisonment and a fine. In 2019, the Committee to Protect Journalists (CPJ) noted with concern the arrest and detention of journalists under this provision, in particular, a journalist who was sent to maximum‑security prison on charges of defamation and spreading false news.(38)
- Kenya: Kenya’s Computer Misuse and Cybercrime Act criminalises the “publication of false information in print, broadcast, data or over a computer system” in articles 22 and 23. Despite legal challenges to various provisions that were alleged to stifle freedom of expression online, the Act was upheld as constitutional and came into effect in 2020.(39)
- COVID-19 false news laws: the COVID-19 pandemic sparked a raft of oppressive false news laws across the world. The Disinformation Tracker, a collaborative civil society initiative, documented the various responses, including laws criminalising false publications, across the continent.
This warrants close attention from civil society and activists to monitor the criminalisation of mis- and disinformation and to advocate for alternative measures that can more meaningfully deter such content while protecting freedom of expression online.
While addressing mis- and disinformation is crucial, regulations often become tools for suppressing freedom of expression. The criminalisation of the dissemination of fake news is likely to increase and may cause significant violence to freedom of expression. Various international bodies, states and organisations have grappled with different responses to the complexities of mis- and disinformation. It is vital to find approaches that avoid harsh legislation that does not strike an appropriate balance between addressing disinformation and protecting the right to freedom of expression. International law unequivocally states that efforts to combat online misinformation must respect the right to freedom of expression as outlined in article 19 of the ICCPR and article 9 of the African Charter. For instance, the UNHRC has clarified that the ICCPR “does not allow a blanket prohibition on expressions of erroneous opinions or incorrect interpretations of historical events.”(40) Thus, any restrictions on online expression, including mis- and disinformation, must adhere to the three-part test for permissible limitations outlined in ICCPR article 19(3) above.
Media and information literacy campaigns can effectively counter disinformation by providing a flood of accurate, reliable information instead and immunising audiences against mis- and disinformation before they are exposed to it. International bodies, states, and CSOs are continually presenting new and innovative ways to address disinformation. Some notable contributions from international bodies include:
- UNESCO: UNESCO has developed a training handbook that shares international good practices and serves as an internationally-relevant model curriculum, open to adoption or adaptation, which responds to the emerging global problem of disinformation that confronts societies in general, and journalism in particular.
- European Union: In 2018, the European Union published its Code of Practice on Disinformation. The purpose of the Code is to identify the actions that signatories could put in place to address the challenges related to disinformation. The Code discusses the need for safeguards against disinformation, implementation of reasonable policies, effective measures to close discernible fake accounts; and the improvement of the scrutiny of advertisement placements. The Code identifies best practices that signatories — such as Facebook, Google, X, and Mozilla — should apply when implementing the Code’s commitments.
At a state level, there have also been promising developments. In 2019, the US Library of Congress produced a report on Initiatives to Counter Fake News in Selected Countries. Some positive initiatives include:
- Argentina: The Commission for the Verification of Fake News was established. The Commission is envisaged to form part of the National Election Chamber, to assist with overcoming issues of disinformation during elections.
- Sweden: Bamse the Bear, a popular cartoon character in Sweden, has adopted a new role in teaching children about the dangers of disinformation by illustrating what happens to the bear’s super-strength when false rumours are circulated about him.
- Kenya: The United States Embassy in Kenya started a media literacy campaign known as “YALI Checks: Stop.Reflect.Verify” to counter the spread of false information in Kenya. The campaign relies on an email series, an online quiz, blog posts, online chats, public outreach, educational videos, and an online pledge to engage with the Kenya chapter of the Young African Leaders Initiative (YALI) about disinformation.
- Finland: Finland has been lauded for its initiatives aimed at teaching residents, students, journalists, and politicians how to counter false information.(41) The initiatives include courses at community colleges and the introduction of lessons in schools about disinformation.(42)
Poynter has also developed a map of misinformation actions around the world that sets out a range of initiatives being implemented, ranging from reports, the establishment of task forces, and investigations to media literacy programmes and more.(43)
Determining limitations on freedom of expression
Global Partners Digital, in an attempt to determine how to tackle disinformation in a way that respects human rights, proposes an information-gathering approach to determine if disinformation amounts to a justifiable limitation of freedom of expression. Some of the suggested questions include:
- Is the basis for any restrictions on what information individuals can search for, receive, or impart set out in law?
- Is there clarity over the precise scope of the law so that individuals will know what is and is not restricted?
- Is speech restricted only where it is in pursuance of a legitimate aim?
- Are there exceptions or defences where the individual reasonably believed the information to be true?
- Are determinations made by an independent and impartial judicial authority?
- Are responses or sanctions proportionate?
- Is disinformation clearly defined?
- Are intermediaries liable for third-party content?
In Africa, false news laws have been challenged in the courts both domestically and at the regional level. In the case of Chipenzi v The People (2014), the High Court of Zambia found that a provision of Zambia’s Penal Code that prohibited the publication of false information likely to cause public fear violated the Constitution as it did not amount to a reasonable justification for limiting the freedom of expression.
The ECOWAS Court and the East African Court of Justice (EACJ) have also delivered landmark rulings in cases on this topic.
Case note: Sedition, false news, and criminal defamation
In Federation of African Journalists and Others v The Republic of The Gambia (2018), the ECOWAS Court considered the offences of sedition, false news, and criminal defamation in The Gambia’s Criminal Code. Several journalists were arrested on charges of spreading false news. They argued that their rights to freedom of expression had been violated and sought a declaration from the Court that certain provisions of The Gambia’s Criminal Code were inconsistent with regional and international law. The ECOWAS Court found that the criminal laws of the Gambia imposed criminal sanctions that are disproportionate and not necessary in a democratic society where freedom of speech is a guaranteed right and ordered that the legislation be reviewed. The Criminal Code was found to be broad and capable of casting an:
“[E]xcessive burden upon the applicants in particular and all those who would exercise their right of free speech and violates the enshrined rights to freedom of speech and expression under Article 9 of the African Charter, Article 19 of the ICCPR and Article 19 of UDHR”.
Case note: Criminalising the publication of false news
In Media Council of Tanzania and Others v Attorney-General of the United Republic of Tanzania case, the applicants challenged various provisions of the Tanzanian Media Services Act on the basis that “the Act in its current form is an unjustified restriction on the freedom of expression, which is a cornerstone of the principles of democracy, the rule of law, accountability, transparency and good governance which [Tanzania] has committed to abide by, through the Treaty.” The applicants argued that it violated freedom of expression by restricting the types of news or content without reasonable justification, criminalising the publication of false news and rumours, criminalising seditious statements, and vesting the Minister with absolute power to prohibit the import of publications or to sanction media content. The respondent argued that all the provisions were just and did not violate the right to freedom of expression and associated rights.
The EACJ held that although the sections were set out in law, the contents of these sections were vague, unclear, and imprecise. It noted that the use of the word “undermine” in the impugned provision, which formed the basis of the offence, was too vague to provide assurance to a journalist or other person who sought to regulate their conduct within the law. The EACJ further noted that the words “impede”, “hate speech”, “unwanted invasion”, “infringe lawful commercial interests”, “hinder or cause substantial harm”, “significantly undermines” and “damage the information holder’s position” were too broad or vague.
It also stated that Section 52(1) of the Act failed the test of clarity and certainty in that the definitions of sedition hinged on the possible and potential subjective reactions of audiences to whom the publication was made. This makes it impossible for a journalist or other individual to predict and thus plan their actions. In conclusion, the EACJ declared that, among other things, all the challenged provisions were in violation of articles 6(d) and 7(2) of the Treaty for the establishment of the East African Court of Justice (EACJ Treaty) and directed the Republic of Tanzania to take such measures as are necessary to bring the Media Services Act in compliance with the EACJ Treaty.
These landmark judgments provide guidance on the appropriate balance between legislating disinformation and protecting freedom of expression, and it is hoped they will have a far-reaching impact on other jurisdictions across the African region in ensuring that any responses to disinformation are based on international freedom of expression standards.
Defamation
Defamation is an important legal remedy for people whose reputation and dignity are harmed by the statements or actions of others. However, it is also frequently abused to unjustly stifle dissent. In particular, criminalising defamation is generally considered, under international human rights law, to be disproportionate and an unjustifiable infringement on the right to freedom of expression. The spread of the internet, and particularly social media platforms, has made it easier than ever to publish content to a wide audience, resulting in a rise in defamation being used against critical statements published online, and in speech that should be protected being criminalised under criminal defamation laws.
Case note: Social media Influencers and defamation
Recently, in the South African case of Native Child Africa (Pty) Ltd v Akinwale (2023) the Court grappled with questions relating to social media influencers in the context of a defamation claim.(44)
The applicant runs four small natural haircare salons, and the respondent is a student and a social media influencer with over 108,000 social media followers across Instagram, TikTok and X (formerly known as Twitter). The respondent began publishing a series of defamatory statements and videos against the applicant, allegedly calling on her followers to harass the applicant on its various social media pages. The Court ordered the respondent to refrain from publishing any defamatory content about the applicant on various platforms, including TikTok, Instagram, Facebook, X (formerly known as Twitter), and WhatsApp. Additionally, the respondent was prohibited from making statements that encouraged a public boycott of the applicant’s business or products. The respondent was further ordered to remove all defamatory content by a specified date and issue a video and written apology, to be displayed for at least 60 days. The order regarding the boycott will operate as an interim measure until legal proceedings are held.
As captured by the Court, this case demonstrates that—
“The far-reaching influence of the internet, capable of impacting millions swiftly, underscores the urgency in addressing such conduct, particularly by individuals like the respondent with a significant online following. Without timely intervention, followers of such influencers could engage in damaging or even aggressive actions against brands, potentially leading to a disregard for law and order on social media platforms.”(45)
Overview of international instruments
The foundation for defamation in international law is article 17 of the ICCPR, which provides for protection against unlawful attacks on a person’s honour and reputation. Article 19(3) of the ICCPR also refers to the rights and reputation of others as a legitimate ground for limiting the right to freedom of expression. Reputation is therefore the underlying basis in any claim of defamation, whether slander or libel.(46) It is also noteworthy that in 2010 the ACHPR issued a Resolution calling on states to repeal criminal defamation laws or insult laws.(47)
Efforts to repeal criminal defamation
In 2023, the South African legislature, repealed the common law crime of criminal defamation, this was done through the passing of the Judicial Matters Amendment Bill. In clause 35(2) the Bill notes that there are well-established civil remedies to respond to defamation as opposed to the chilling criminal defamation laws. In 2022, Zambia introduced amended the Penal Code to abolish the offence of criminal defamation of the President.(48) In 2020, Sierra Leone’s Parliament also repealed its 1965 Public Order Act by approving the Independent Media Commission Act 2020.
Defamation in the courts
In recent years, many countries around the world have taken steps to decriminalise defamation in line with human rights standards. General Comment 34 provides that: “States Parties should consider the decriminalisation of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty”.(49) Principle 22 of the African Declaration calls on states to amend criminal laws on defamation and libel in favour of civil sanctions, and that the imposition of custodial sentences for defamation is a violation of the right to freedom of expression.
Over the last decade, various judgments across Africa have addressed defamation, including the Konaté v. Burkina Faso in the African Court on Human and Peoples’ Rights, Misa-Zimbabwe et al v. Minister of Justice et al in the Zimbabwe Constitutional Court, Peta v. Minister of Law, Constitutional Affairs and Human Rights in the Constitutional Court of Lesotho, and the 2018 case of Federation of African Journalists and Others v. The Gambia in the ECOWAS Court. In 2020, the ACHPR ruled that Rwanda’s criminal defamation laws violated freedom of expression and impeded development in democracies. It noted that such laws “constitute a serious interference with freedom of expression, impeding the public’s right to access information, and the role of the media as a watchdog, preventing journalists and media practitioners from practising their profession in good faith, without fear of censorship”.
The growth of Strategic Lawsuits Against Public Participation (SLAPP) suits by political and corporate actors is on the rise. South African courts have seen several matters in which defamation and/or urgent proceedings have been used in an attempt to silence or intimidate activists and journalists:
- Mineral Sands v. Redell (2022): This case arose from Mining Companies issuing summons against activists for defamation.(50) The issue before the Constitutional Court was whether or not South African law prohibited a SLAPP suit under the abuse of process doctrine and if not, whether our law ought to be developed in that regard. In its 2022 judgment, the Court acknowledged that the common law doctrine of abuse of process can accommodate the SLAPP suit defence and ensures that courts can protect their own integrity by guarding over the use of their processes. Ultimately, it ensures that the law serves its primary purpose, namely, to see that justice is done and not be abused for odious, or for ulterior purposes. The Constitutional Court recognised that SLAPP suits described as ‘lawsuits initiated against individuals or organisations that speak out or take a position on an issue of public interest… not as a direct tool to vindicate a bona fideclaim, but as an indirect tool to limit the expression of others… and deter that party, or other potential interested parties, from participating in public affairs.’
- Maughan v. Zuma and Others (2023): Former South African President Jacob Zuma launched private criminal prosecution against a prominent journalist following the publication of an article she had written about him. In 2023, in dismissing Zuma’s case the High Court found that “it is quintessential to the freedom of expression and freedom of the press to protect the abuse to intimidate, censor and silence journalists by means of SLAPP suits.”(51)
- Mazetti Management Services v. Amabhungane (2023): The matter concerned an order of the High Court obtained on an urgent, ex-parte(only one party present), and in-camera (closed to the public) basis by a private company, ordering journalists to hand over certain documents and to interdicts them from reporting on such material.(52) Following a reconsideration hearing, the High Court found that this original order demonstrated “an egregious example of the abuse of the ex parte procedure.” Notably, in its reasoning, the Court cited the United Nations Joint Declaration on Media Freedom and Democracy of May 2023 and the recommendation that states must take measures to protect journalists and media outlets from strategic lawsuits against public participation and the misuse of criminal law and the judicial system to attack and silence the media, including by adopting laws and policies that prevent and/or mitigate such cases and provide support to victims.
While South African Courts are holding strong against SLAPP procedures and abuse of process it is likely that powerful actors – political and private – will continue to find ways to silence and intimidate. Fortunately, international, regional and comparative law provides a useful basis from which to fight such tactics.