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. Such criminalisation may be targeted at a range of harmful expressions, including:
- Hate speech;
- Threats or incitement to terrorism and violence;
- Disinformation;
- Defamation;
- Sexual abuse material including child sexual abuse material, the non-consensual dissemination of intimate images (NCII), and sexual exploitation online; and
- Cybercrimes.
From a criminal justice perspective, certain actions may warrant criminal consequences. However, in the context of online speech offences, there are a variety of competing considerations in the interplay between the offences, the rights they limit, and the limitations caused by creating the offences.
Walking the tightrope: criminalising online speech
The complexities of criminalising 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 exclusion. Supremacist ideologies, populist nationalism, gendered violence, and racism and xenophobia are some of the social ills that can take root in both 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 states’ moves to impose restrictive measures on harmful speech, instead of addressing the systemic issues, such as the factors that enable the spread of misinformation online, are 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 Covenant on Civil and Political Rights (ICCPR), and the African Charter on Human and People’s Rights (African Charter). It is a right that is necessary for good governance and economic and social progress because it enables accountability by allowing 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 requires careful navigation. Many 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 on 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.