What is ‘False News’?

‘False news’ refers to content purporting to be news that is intentionally and verifiably false and that seeks to mislead readers. In March 2017, the Joint Declaration on Freedom of Expression and ‘Fake News,’ Disinformation and Propaganda (2017 Joint Declaration) was issued by the relevant freedom of expression mandate-holders of the United Nations (UN), the African Commission on Human and Peoples’ Rights (ACHPR), the Organisation for Security and Co-operation in Europe (OSCE), and the Organisation of American States (OAS).(1) The 2017 Joint Declaration noted the growing prevalence of disinformation and propaganda, both online and offline, and the various harms to which they may contribute or be a primary cause. The quandary remains that the internet both facilitates the circulation of disinformation and propaganda and also provides a useful tool to enable responses to this.

Importantly, the 2017 Joint Declaration stressed that general prohibitions on the dissemination of information based on vague and ambiguous ideas, such as ‘false news,’ are incompatible with international standards for restrictions on freedom of expression. However, it went further to state that this did not justify the dissemination of knowingly or recklessly false statements by official or state actors. In this regard, the Joint Declaration called on state actors to take care to ensure that they disseminate reliable and trustworthy information, and not to make, sponsor, encourage or further disseminate statements that they know (or reasonably should know) to be false or which demonstrate a reckless disregard for verifiable information.

The 2017 Joint Declaration identified the following standards on disinformation and propaganda:

“Standards on disinformation and propaganda

(a)        General prohibitions on the dissemination of information based on vague and ambiguous ideas, including “false news” or “non-objective information”, are incompatible with international standards for restrictions on freedom of expression, as set out in paragraph 1(a), and should be abolished.

(b)        Criminal defamation laws are unduly restrictive and should be abolished. Civil law rules on liability for false and defamatory statements are legitimate only if defendants are given a full opportunity and fail to prove the truth of those statements and also benefit from other defences, such as fair comment.

(c)        State actors should not make, sponsor, encourage or further disseminate statements which they know or reasonably should know to be false (disinformation) or which demonstrate a reckless disregard for verifiable information (propaganda).

(d)        State actors should, in accordance with their domestic and international legal obligations and their public duties, take care to ensure that they disseminate reliable and trustworthy information, including about matters of public interest, such as the economy, public health, security and the environment.”

False news provisions are laws which prohibit and punish the dissemination of false or inaccurate statements. This has been decriminalised in various countries. For example, in the matter of Chavunduka and Another v Minister of Home Affairs and Another,(2) the Zimbabwe Supreme Court dealt with the constitutionality of the criminal offence of publishing false news under Zimbabwean law. In 1999, following the publication of an article in The Standard titled “Senior army officers arrested”, the editor and a senior journalist were charged with contravening section 50(2)(a) of the Law and Order Maintenance Act, on the basis that they had published a false statement that was likely to cause fear, alarm or despondency among the public or a section of the public. The editor and journalist challenged the constitutionality of this provision as being an unjustifiable limitation of the right to freedom of expression and the right to a fair trial.

Of particular relevance, in finding that the section was indeed unconstitutional, the Supreme Court stated that:

“Because s 50(2)(a) is concerned with likelihood rather than reality and since the passage of time between the dates of publication and trial is irrelevant, it is, to my mind, vague, being susceptible of too wide an interpretation. It places persons in doubt as to what can lawfully be done and what cannot. As a result, it exerts an unacceptable “chilling effect” on freedom of expression, since people will tend to steer clear of the potential zone of application to avoid censure, and liability to serve a maximum period of seven years‟ imprisonment.

The expression “fear, alarm or despondency” is over-broad. Almost anything that is newsworthy is likely to cause, to some degree at least, in a section of the public or in a single person, one or other of these subjective emotions. A report of a bus accident which mistakenly informs that fifty instead of forty-nine passengers were killed, might be considered to fall foul of s 50(2)(a).

The use of the word “false” is wide enough to embrace a statement, rumour or report which is merely incorrect or inaccurate, as well as a blatant lie; and actual knowledge of such condition is not an element of liability; negligence is criminalised. Failure by the person accused to show, on a balance of probabilities, that any or reasonable measures to verify the accuracy of the publication were taken, suffices to incur liability even if the statement, rumour or report that was published was simply inaccurate.”

Accordingly, the Supreme Court held that the criminalisation of false news, as contained in section 50(2)(a), was unconstitutional and a violation of the right to freedom of expression. Unfortunately, false news provisions have since found their way into other legislation in Zimbabwe and have been used to justify the arrest and silencing of critics and journalists.(3)

The High Court of Zambia likewise in 2014 struck down a provision in the country’s Penal Code that prohibited the publication of false information likely to cause public fear, holding that it did not amount to a reasonable justification for limiting freedom of expression.(4)

More recently, the ECOWAS Court of Justice delivered a landmark judgment in the case of Federation of African Journalists and Others v The Gambia,(5) where it found that the rights of four Gambian journalists had been violated by the state authorities. It was submitted that security agents of The Gambia arbitrarily arrested, harassed and detained the journalists under inhumane conditions, and forced them into exile for fear of persecution as a consequence of their work as journalists.

The Court upheld the claim, finding that The Gambia had violated the journalists’ rights to freedom of expression, liberty, and freedom of movement, as well as violated the prohibition against torture.  As such, it awarded six million Dalasi in compensation to the journalists.  Importantly, the Gambia was ordered to immediately repeal or amend its laws on, amongst others, false news in line with its obligations under international law.

In a related case, the Court of Cassation of Tunis in Tunisia in 2018 upheld the acquittal of a woman who had been charged with ‘publication of false news threatening public order’ for publishing statements alleging electoral fraud.(6) The Court held that because the woman had subsequently deleted the post, she could not be found to have criminal intent.