Overview of Criminalising Online Speech
Module 3: Criminalisation of Online Speech
Criminalisation, in the context of online speech, refers to the enactment of laws and policies that render specific forms of online expression illegal. The criminalisation of online speech, generally, seeks to target a wide range of actions from hate speech, acts of terrorism and violence, the dissemination of false news, defamation, sexual abuse material including child sexual abuse material, sexual exploitation online, and cybercrimes. From a criminal justice perspective, certain actions may warrant certain consequences. However, in the context of online speech offences, there are a variety of competing considerations which manifest in the interplay between the offences, the rights they limit, and limitations caused by creating the offences.
The complexities of the criminalisation of online speech should not be underestimated. The digital landscape, which in many ways has brought people together and facilitated free speech and dissent, has also created spaces that breed divisiveness, division and exclusivity. Supremacist ideologies, populist nationalism, gendered violence, and racism and xenophobia are some of the harsh realities that infect our offline and online societies. Balancing dignity, equality, autonomy and development against the right to free speech is not an easy task. It is arguable that instead of addressing the systemic issues, states are introducing restrictive and short-sighted solutions that restrict both those who are affected by online harms and those who are lawfully and legitimately expressing themselves. Organisations like the Collaboration on International ICT Policy in East and Southern Africa (CIPESA) and the Council of Foreign Relations (CFR) have noted with concern that governments the world over are adopting legislation that curtails free expression rights on the internet, either through the criminalisation of specific actions or through laws aimed at combating criminal activity online.
The right to freedom of expression is a fundamental human right that is protected in the Universal Declaration of Human Rights (UDHR), the International Convent on Civil and Political Rights (ICCPR), and the African Charter on Human and Peoples Rights (African Charter). It is a right that is necessary for good governance and economic and social progress because it ensures accountability by enabling people to freely debate and raise concerns with the government, including the protection and promotion of other human rights. (1)
Understanding the role of online speech offences, and their intended and unintended consequences, require careful navigation. Most of the laws that criminalise online speech are seen to be vague and overbroad and often fail to strike the appropriate balance between competing rights. These laws result in a chilling effect to the right to freedom of expression, whereby individuals steer clear of controversial topics because there is uncertainty about what is permitted and what is not. (2) The chilling effect may be exacerbated where penalties for breach of the law are unduly harsh, as is the case with certain laws that criminalise online speech.