Social media and the prohibition of ‘false news’: can the free speech jurisprudence of the African Commission on Human and Peoples’ Rights provide a litmus test?

2.1 Dynamics of free speech justifications in a digital age

Wide-ranging philosophical and empirical inquiries have been conducted on the constitutional value of free speech in a democratic society.17 As Barendt argues in his seminal work, Freedom of speech,18 free speech merits special protection on four basic rationales: truth-seeking; self-governance; the functioning of democracy; and its checking value.19 Other authors generally agree, subtract from or make some additions to these rationales,20 which are overlapping and cross-cutting.21 Overall, leading scholars agree on the values of free speech in a democracy.22

First, the truth-seeking rationale, derived from JS Mill,23 but popularised by Holmes,24 is essentially that, save for threat of harm, countering speech in an atmosphere of open discussions will engender truth, better deliberation or political legitimacy25 or that ‘it is only by the free flow of ideas and discussion that error is exposed, truth vindicated and liberty preserved’.26 Consequently, government may not be the arbiter of truth while statutes that criminalise ‘false’ speech, regardless of harm, face the presumption of unconstitutionality.27 A similar view was expressed in Obbo and Another v Attorney General.28 However, the pseudonymous characteristics that facilitate disinformation, ‘clickbait’ and echo chambers on social media and the use of algorithms for ‘crowd-sourcing’ have radically altered the conditions for free speech in the digital era. In addition, digital intermediaries exercise governance, surveillance and co-opted private power as ‘they can block, censor, or take down content from their end users unilaterally or under pressure from governments’.29

Second, the belief in mature individuals as equal, rational moral agents capable of independent action, choice or thought underlies the argument from self-government. This function of free speech makes for the proper exercise of individual agency and autonomy and hence the full development of the individual through the ability to make meaningful life choices. Currie and De Waal argue that the right to speak irrespective of speech content is a ‘constitutive feature of a just political society’ in which a government treats ‘all its members ... as responsible moral agents’.30 Indeed, the ‘prospect for relatively private and anonymous communication’, which social media creates, has been considered a hallmark of democratic expression and deliberation.31 Social media platforms now mediate democratic participation. For instance, Facebook’s ‘Statement of Rights and Responsibilities’ provides that its users cannot post content that amounts to ‘hate speech, threatening, or pornographic; incites violence’ or ‘do anything unlawful, misleading, malicious, or discriminatory’.32 These rules sound innocuous but Facebook uses its discretion to remove content which in its opinion violates its policy.

Third, the functioning of democracy argument posits that free speech sustains uninhibited public discourse, which is required for the formation of public opinion. The opportunity to peacefully ventilate public grievances against the state and hold authorities accountable thus constitutes a mechanism for orderly change in society without resort to violence. This rationale is demonstrated in the judgments from two African courts, which quoted extensively from European Court of Human Rights (European Court), as follows:33

Because the freedom of expression is one of the fundamental pillars of any democracy, by allowing the public to share information and to engage in public discourse helps to expose misdemeanors and malpractices by public officials. By virtue of the fact that there is an inherent value to the individual and society as a whole when there is diversity of ideas and opinions, freedom of expression “is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society...

The United States (US) Supreme Court uphold similar views on the First Amendment to the US Constitution,34 which embodies a

commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open’, which ‘may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials’.35

The implication then is that ‘erroneous statements’ are ‘inevitable in free debate’ and must be protected so as to allow freedom of speech and of the press to have the ‘breathing space’ they need to survive.36 This does however not allow carte blanche posting of disinformation or propaganda on social media.

Lastly, free speech informs public opinion and empowers the public to rein in and check the excesses of government.37 This rationale underlines the link between free speech and political accountability, because citizens’ engagement with information exchange and participation in public debate helps to expose misdeeds and misconduct by public officials. Nowadays, the mobile Internet, social media and digitisation of news sources have redefined news by enabling citizen journalism with attendant online dissemination of falsehood, rumours, and hateful speech which obfuscate public debate.

However, freedom of expression is neither absolute nor open to prior censorship but may be restricted as appropriate. Hence, democracies do balance the exercise of free speech against other societal interests.38 In the United States, some forms of harmful speech are protected.39 Concerning criminalisation of ‘false’ speech, the US Supreme Court has said repeatedly:40

The First Amendment recognizes no such thing as a ‘false idea’, but ‘they are nevertheless inevitable in free debate and a rule that would impose strict liability on a publisher for false factual assertions would have an undoubted ‘chilling’ effect on speech relating to public figures that does have constitutional value.

According to American ‘special protection’ exponents then, speech, even when ‘offensive or morally repugnant’, is immune from government restrictions.41 While social media has opened new avenues for the evolution of democratic culture it affords new vista for the regulation of harmful content.42 Accordingly, the criminalisation of ‘false’ speech or ‘fake news’ on social media calls for interrogation considering the importance of public discourse. Generally, public discourse, ‘speech on matters of public concern’ or expressions in democratic self-governance ‘settings’ such as social media, receives a high level of protection.43 The European Court confirms the foregoing in a long line of cases that it is incumbent on the mass media ‘to impart information and ideas concerning matters ... of public interest. ... [which] the public also has a right to receive ...’.44 This also affords one of the best means of forming opinion on the attitudes of political leaders.45 Accordingly, scholars and human rights mechanisms have confirmed the utility of Internet-based communication.46 Moreover, free speech is not about factual information alone; it covers sarcasm, satire, exaggeration and similar genres which media freedom accords a wide margin,47 and it protects opinions, commentaries and value judgments the truth of which is not demonstrable.48 From the foregoing perspective, it is crucial to analyse the ‘fake news’ contextualisation in Africa, the legal responses thereto and how these impinge on free speech protection.

2.2 Criminalising online ‘false news’: African context and international perspectives

‘Fake news’ as a term of art in the field of ‘political manipulation’ only gained global prominence in 2017.49 In a widely-influential article, Allcott and Gentzkow define ‘fake news’ broadly as ‘news articles that are intentionally and verifiably false, and could mislead readers’.50 Also, ‘fake news’ or its various synonyms (post-truth, alternative news, etc) is just one aspect of a growing ecosystem of information disorder which consists of propaganda, disinformation (false information shared intentionally to harm), misinformation (false information shared without harm), malinformation (true information shared to cause harm).51 Western narratives have however been remarkably predominant, particularly after the 2016 US presidential elections. False news reporting is a widespread problem across Africa, and predates the advent of digital technologies; historically, it has manifested itself through state propaganda and information manipulation by ruling elites.52 Theoretically grounded empirical research suggests a complexity of reasons why ‘fake news’ and ‘cyber-propaganda’ cannot be divorced from Africa’s peculiar socio-political and economic conditions. First, in ‘closed’ African societies, individuals and communities lacking ‘the requisite access to verifiable information’ or skills, ability and means of accessing news sources resort to rumours and half-truths.53 Even where there is relatively good access to digital news sources, limited digital literacy, sheer ignorance and lackadaisical attitude to verification of information allow for the sharing of false and unverifiable information. Second, the digitisation of news sources encouraged the commercialisation of news and gave rise to the mushrooming of online news organisations which circulate sensational news to gain attention. Third, ‘fake news’ has been weaponised in African elections particularly through Facebook, Twitter, WhatsApp, etc., by cyber-troops of politicians and easily feeds into political partisanship underscored by ethnic and sectional rivalries.54 Fourth, state monopolies over information services which enables divergent levels of censorship coupled with resource constraints by journalists drive fake news across Africa.55

‘Fake news’ is ‘fabricated’ information published as factual news ostensibly to harm.56 However, this understanding is problematic since ‘false news’ also covers a broad spectrum of false but non-injurious hoaxes, lies, fiction, satire, and parody.57 Combating disinformation can also be daunting; it often spreads uncontrollably and is easily exploited for ideological gains.58 Hence, African governments reflexively resort to ill-conceived legal mechanisms like criminal defamation and Internet clampdown, purportedly to prevent breaches of the peace or public order or preserve state security,59 albeit contrary to international treaties which guarantee free speech.60

Criminal libel law, abolished in England in 2009, and under article 36 of the related French Law on Freedom of the Press 1881, has been rightly described as ‘arcane’ and a vestige of European colonialism,61 hence unjustifiable in a democratic setting.62 In classical terms, ‘defamation’ is the ‘publication’ of a statement that tends to lower a person’s reputation in the opinion of right-thinking members of the community or to make them shun or avoid him.63 ‘Publication’ means bringing the defamatory matter to the notice of a third person other than the plaintiff.64 So, aside the author and publisher, printers, distributors and sellers of offline publications are not liable for defamation if unaware of a publication’s libellous content. Under the common law, ‘libel’ is defamation involving written or printed statements while ‘slander’ involves oral statements65 but ‘substantially true’ statements if published for public benefit, and those made in privileged circumstances, are not actionable. Historically, state prosecution was considered vital to prevent anarchy should citizens resort to self-help to avenge themselves of reputational damage.66 As several African courts found: criminal defamation inhibits critical speech through fear of threatened or actual prosecution, conviction, prison sentence and fines; it occasions self-censorship for fear of these penalties;67 and chills free speech.68 The civil remedies of damages, injunction, retraction and apology should therefore prove adequate to assuage reputational injury.69 Defamation on social media can occur through users’ posts, tweets, uploads, comments, etc.,70 but what constitutes ‘publication’ online requires some refinements considering the dilemma it poses concerning criminal responsibility.71 Some jurisdictions have developed ‘a single publication rule’, which ‘provides that a cause of action accrues when material is first published not when it is read or subsequently accessed online, sold, or a copy otherwise provided to a reader’.72 Generally, digital intermediaries are recognised as ‘mere conduits’73 or non-publishers,74 hence they do not bear criminal liability if they perform no editorial role on online content. However, at the international level, there is no gainsaying the fact that, until very recently, human rights law has struggled to mediate the altered conditions and new challenges posed to freedom of expression by misinformation on social media. The UN Human Rights Committee (UNHRC) has observed as follows:75

The free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion.

The UN Special Rapporteur on Freedom of Expression has also stated that criminal sanctions for offline defamation are unnecessary and disproportionate.76 The UN Human Rights Council has expressed concerns about online misinformation and propaganda and has consistently affirmed that ‘the same rights that people have offline must also be protected online’.77 The Human Rights Committee has also stated: ‘Regulatory systems should take into account the differences between the print and broadcast sectors ... while also noting the manner in which various media converge’.78

Nonetheless, digital platforms do have extensive control over user-generated content based on the algorithms used, hence the need for more transparency in their operations. Consequently, several pronouncements of various special rapporteurs on freedom of expression address the issues surrounding intermediary liability for ‘fake news’ and propaganda online.79 Regarding the Joint Declaration on ‘fake news’ 2017, Principle 1 thereof reiterates the three-part test of limitation of free speech. Principle 2(a) and (b) affirm that criminal defamation and ‘[g]eneral prohibitions on the dissemination of information based on vague and ambiguous ideas, including “false news” ... are incompatible with free speech standards and ‘should be abolished’. Under Principle 1, intermediaries must follow due process before engaging in content deletion or moderation while liability for inappropriate online content is determined by editorial functions and non-compliance with a duly made content removal order. ARTICLE 19 and other international non-governmental organisations (NGOs) have also denounced criminal defamation and concur that content regulation must respect free speech principles. 80 Despite this rising international condemnation of the use of criminal defamation to suppress freedom of expression,81 ‘Nyane observes that it is still retained in the statute books of many African countries.82 In this regard, some jurists argue that there can be no justification for the publication of untruths, hence, members of the press should not be left with the impression that they have a licence to do so. More so, the press occupies a powerful position and large sections of the community tend to accept what they read in the newspapers as true.83 Nevertheless, some courts in Africa have developed transformative jurisprudence in line with national constitutions and the African Charter to declare criminal defamation and false news publishing as unjustifiable free speech limitations.84

2.3 Criminal defamation in Africa: emerging national jurisprudence

In Madanhire and Another v Attorney General,85 decided by the Zimbabwean Constitutional Court, a newspaper editor and reporter were alleged to have knowingly published false statements with intention to defame under section 96 of Zimbabwe’s Criminal Code. The Court found as follows:86

The fact that investigative journalism may on occasion involve the publication of erroneous or inaccurate information does not detract from the reciprocal rights to receive and impart information and ideas without interference.

Following Madanhire, the Lesotho Constitutional Court in Peta v Minister of Law, Constitutional Affairs and Human Rights87 dealt with the vagueness of section 104 of the Lesotho Penal Code on which hinged prosecution for criminal defamation for a satirical article posted on social media concerning the Lesotho Defence Force’s former Commander. While stating that ‘[p]ublic figures ... should display a high degree of tolerance to criticism’, the Court confirmed satire to be a protected form of expression:

[Criminalising satire] seems to be premised on the idea that deliberate lies, exaggeration and distortion of reality cannot serve any usefulness connected to the purposes of freedom of expression. Because satire by its nature distorts and exaggerates reality .... Satirical expression, notwithstanding the fact that it distorts and exaggerates reality, assists individuals in attaining self-fulfilment and fostering political participation.

The Court held that the defence of truth and publication for ‘public benefit’ available in a defamation charge was vague, liable to abuse by political powers to silence legitimate criticism ‘and chilling of truth-searching and the concomitant undermining of the purposes of guaranteeing freedom of expression’.

Madanhire was similarly followed by the Kenya High Court in Okuta & Another v Attorney General & 2 Others,88 where a charge of criminal defamation based on a Facebook comment under section 194 of the Kenyan Penal Code was held to be a proportionate punishment to restrict freedom of expression in a democratic society. Similar results were achieved in Chipenzi and Others v The People.89 In Obbo and Another v Attorney General,90 which dealt with publishing false information ‘likely to cause fear and alarm to the public’ under section 50(1) of the Ugandan Penal Code, the Ugandan Constitutional Court stated:

Exaggeration - even clear falsification - may arguably serve a useful social purpose linked to values underlying freedom of expression. ... All of this expression arguably has intrinsic value in fostering political participation and individual self-fulfilment.

However, in GPU and Others v Attorney General,91 the Gambia’s Supreme Court refused to follow the ECOWAS Court decision in Federation of African Journalists & Others v The Republic of the Gambia (2019) (describing the legislative definitions of ‘false news’ and criminal defamation in sections 59 & 181A(1) of the Gambia Criminal Code as ‘expressions of inexactitude’ and ‘so broad as to be capable of diverse subjective interpretations’.92 In a recent judgment, The Incorporated Trustees of Laws and Rights Awareness Initiative v Nigeria,93 the ECOWAS Community Court held that section 24 of the Nigerian Cybercrime Act 2015 contains vague concepts that allow for arbitrary interpretation in violation of the right to freedom of expression protected under article 9 of the African Charter.94

Considering the foregoing, criminal defamation provisions in emergent ‘cyberlaws’ in Africa constitute a ‘step backward in the evolution of human rights in Africa’95 as they are often vague and overbroad. Case studies from Ethiopia and Nigeria, two troubling African legal landscapes, justify the foregoing assertion.

3.1 Nigeria’s PIFM Bill 2019

Nigerian law favours state regulation of online free speech,98 hence a potpourri of colonial style Criminal and Penal Codes first enacted respectively in 1902 and 196099 and new cybercrimes laws police online activities. Section 373 of the Criminal Code Act,100 which defines a ‘defamatory matter’ as a ‘published’ matter (expression) injurious to the reputation of any person whether ‘living or dead’, can arguably be used to criminalise social media content. Additionally, section 24(1)(b) of the Cybercrime (Prevention) Act 2015, which criminalises the intentional sending of false, intimidating or hateful messages via computer networks, is already being used to arrest journalists who criticise officials on social media.101 Against this background, the PIFM Bill 2019, which aims to suppress Internet falsehoods on social media platforms, was introduced in the National Assembly on 5 November 2019. This six-part 36-section Bill, dubbed the ‘anti-social Media Bill’ by media organisations, but its sponsor, Senator Mohammad Musa, says it is intended to ‘mitigate the propaganda or ‘fake news’ that travels at the ‘speed of light.’102 Part 2 thereof creates the offences of Internet and malicious falsehood and re-enacts common law requirements therefor. It criminalises the transmission of ‘false statements of fact’, making or altering bots or providing services for such transmission within or outside Nigeria ‘knowingly’ and ‘likely to’ have caused financial loss or personal injury to a person.103 Individual offenders face up to N300 000.00K ($787 USD) fine or two years’ jail term or both while corporate offenders face fines up to N10 million fine ($26 323 USD). This applies to the use of an ‘inauthentic account’ or bot and to statements even when ‘untrue and not defamatory’.104 False statements likely to influence an election or referendum are also criminalised.105 By a circular definition, a statement is false ‘if it is false or misleading, whether wholly or in part, and whether on its own or in the context in which it appears’.106 Other objectionable portions of the Bill include: hefty fines and/or imprisonment against tech companies for non-compliance with orders to disable access to online content;107 powers of law enforcement agencies to regulate tech intermediaries108 and the online transmission of false statements - to order Internet intermediaries to disclose the source or retract or correct false information,109 and designate online platform/accounts as ‘fake’;110 the extraterritorial application of the law,111 etc., all which are likely to put pressure on media platforms to police content. The Bill’s vague definition of ‘false statement’ and the provisions of sections 3-6B pose risks of prior restraint and self-censorship concerning the exercise of online speech. Interestingly, media organisations have termed it ‘plagiarised’ because ‘Musa only changed some terms from that of Singapore [Protection from Online Falsehoods And Manipulation Act (POFMA) 2019] to give his bill a feel of originality’ considering several striking resemblances between the Bill and the Act.112 Moreover, section 39 of the amended Constitution of the Federal Republic of Nigeria 1999 (CFRN 1999)113 guarantees freedom of expression and press freedom. Nigeria also ratified the International Covenant on Civil and Political Rights (ICCPR) and domesticated the African Charter.114 Consequently, content regulation based on the Bill must satisfy the three-part test under international standards.

3.2 Ethiopia’s CCP 2016

Similar to Nigeria, the Constitution of the Federal Democratic Republic of Ethiopia 1995115 provides for freedom of expression and the press and access to information, and though it prohibits censorship, the right is not absolute as provided for under article 29(6).116 The Freedom of the Mass Media and Access to Information Proclamation No 590/2008 also affirms such constitutional safeguards. Nevertheless, the latter has provisions problematic to free expression such as complex registration processes for media outlets and high fines for defamation. The Criminal Code Proclamation No 414/2004 also penalises defamation with a fine or up to one-year imprisonment. As regards government disruption to the Internet in Africa ‘Ethiopia isn’t an anomaly’.117 Censorship is rife, particularly since the aftermath of violence attendant upon the controversial May 2005 general elections.118 Moreover, government often blames Facebook and Twitter for fake news used to incite ‘ethically tinged violence leading to deaths and displacements’.119 Consequently, Ethiopia’s new Hate Speech and Disinformation Prevention and Suppression Proclamation 2020120 targets ‘false and misleading information’.121 Under article 8, government reserves the right to order providers to remove disinformation on social media accounts with more than 5,000 followers within 24 hours of notification or face harsh penalties. The CCP 2016 also reinforces this hostile regulatory ambience; it extends the reach of criminal defamation and gives government regulatory powers that will impact heavily on the right to online free speech in Ethiopia.122 The Proclamation consists of six parts and 46 articles towards the control and prosecution of computer crimes including online criminal defamation. Article 13 punishes defamatory speech as ‘illegal content’ disseminated through a computer system with 3 years’ jail term or Birr 30,000 fine or both.123 Relatedly, it legalises content policing - a Service Provider shall be criminally liable for illegal content disseminated through its computer systems by third parties by being directly involved in its dissemination and failure to remove or disable access after actual knowledge or administrative notice.124 Furthermore, it permits the concurrent application of any special law or criminal code.125

4.1 The African Commission’s ‘traditional’ free speech jurisprudence

Freedom of expression is a fundamental right protected by international and regional human rights instruments,126 including article 9 of the African Charter on Human and Peoples’ Rights (African Charter),127 which provides as follows:

1. Every individual shall have the right to receive information.
2. Every individual shall have the right to express and disseminate his opinions within the law.

The African Commission128 has interpreted the African Charter holistically, contextually,129 consonant with its object and purpose130 and international human rights standards, and through doctrinal innovations, has developed a free speech jurisprudence including a ‘limitation analysis’ using comparative international and regional jurisprudence as interpretive aids. The African Commission has connected article 9 with the underlying values of free speech. In Constitutional Rights Project and Others v Nigeria,131 the African Commission held that ‘freedom of expression is a basic human right, vital to an individual’s personal development and political consciousness, and participation in the conduct of the public affairs of his country’.132 The African Commission also underscored the importance of media freedom to greater public accountability and the strengthening of democracy since ‘it is the widest possible circulation of news, ideas and opinions as well as the widest access to information by society as a whole, that ensures public order’.133 The Commission found that political speech deserves special protection and a higher degree of tolerance especially when directed towards the government or persons acting in public capacity.134 Moreover, the importance of freedom of expression as ‘a means of ensuring respect for all human rights and freedoms’ is also recognised by the Commission.135 However, the significance of permissible limits to free speech are also well articulated.

4.2 The African Commission’s free speech ‘limitation analysis’

The Commission draws inspiration from international human rights law under articles 60 and 61 of the African Charter ‘as benchmarks for the application and interpretation of the African Charter’.136 The Commission also relies on Resolutions and elaborations on the provisions of article 9 in individual communications137 and deploys its Special Rapporteur on Freedom of Expression and Access to Information for on-the-field enforcement and supervisory activities. In this regard, the African Commission is considered more progressive than other international and regional bodies.138 When read together with the African Court on Human and Peoples’ Rights’ landmark Lohé Issa Konaté v The Republic of Burkina Faso decision,139 the recent judgment of the Economic Community of West African States’ Community Court (ECOWAS Court) on Nigeria140 and East African Court of Justice’s (EACJ) jurisprudence,141 the African criminal defamation analysis constitutes a corpus of law developed against the background of the enduring legacy of colonial penal codes in Africa.142

In determining whether criminal defamation is a justifiable interference with freedom of expression secured in article 9, the Commission proceeds with an assessment of whether there has indeed been an ‘interference’, and if so, whether such fulfils a cumulative three-part test of legality, legitimacy, and necessity and proportionality.143 First, the interference (criminal defamation) must not only be provided for in domestic law which conforms with the state’s international human rights obligations.144 Furthermore, the law providing for the restriction must have foreseeable effects, limit discretion and be amenable to judicial review. Hence, states cannot rely on article 9(2) to pass national law or impose prior restraints (like censorship)145 to override international free speech standards.146

Second, the criminal defamation restriction (imprisonment, fine, etc) must also serve a legitimate aim (protection of reputation) corresponding to one of the aims in the Charter’s article 27(2). Third, the restriction must be necessary in a democratic society, which requires that the right to free speech be proportionate to (balanced against) the legitimate aim pursued147 (honour and reputation).148 This is achieved when a direct/rational relation exists between the impugned expression and protected interest; there are sufficient reasons to justify the restriction, no less intrusive solution to achieve the same result exists, and the restriction does not render the right illusory.149 Consequently, the Commission has not found it difficult to hold that harsh penalties (interferences) imposed through criminal libel such as imprisonment, heavy fines, proscriptions, etc., are disproportionate. Moreover, vague and overly broad restrictions based on illegitimate grounds and disproportionate restrictions that hollow out free speech are impermissible.150 Hence, the African Commission has pronounced that stakes are higher within the context of public debate and criticisms of public figures in a democratic society.151 Concerning the important role of the media in sustaining public debate, the African Commission has repeatedly stated: ‘[P]olitical expression demands special attention and legal protection’.152 In Media Rights Agenda and Others v Nigeria,153 TELL, a weekly magazine of Nigeria reported a story seen as insulting to the then President Abacha entitled: ‘The return of tyranny - Abacha bares his fangs’. The Commission drew a distinction between criticism of a public official and private citizen and condemned punitive action for criticisms against government as a violation of article 9(2).154 In Scanlen and Holderness,155 the Commission attached great importance to the ‘public watchdog’ role of the press to ensuring the proper functioning of a democracy as counterbalanced by the press’ duty to act responsibly. It admitted that occasions will arise when journalists might ‘publish or disseminate information, opinion or ideas, which will contravene other persons’ reputation or interests’, but in such circumstances, ‘it is sufficient if journalists have made a reasonable effort to be accurate and have not acted in bad faith’.156 The foregoing legal exposition accords with efforts to decriminalise defamation by UN treaty bodies,157 special mechanisms,158 and regional bodies.159

Moreover, the (Revised) FoE Declaration 2019160 and several resolutions are clear on this issue. A 2010 resolution urged member states to repeal criminal defamation laws.161 Moreover, the FoE Declaration recalls that freedom of expression is an indispensable component of democracy while stating that no one should ‘be found liable for true statements, expressions of opinion, or statements which are reasonable to make in the circumstances’.162 Accordingly, as the FoE Declaration 2019 affirms, states shall require Internet intermediaries to enable equal access to the Internet and shall not interfere with the free flow of information.163 Again, ‘[s]tates shall not require Internet intermediaries to proactively monitor content’,164 but shall require Internet intermediaries to incorporate human rights standards, transparency and effective remedies into content removal processes though such removals shall not be required without due process and safeguards against unjustifiable restrictions on free speech online.165 This soft-law guidance is crucial to mediate intermediary liability in a state-dominated regulatory environment as demonstrated by the case studies in part 3.

4.3 Adjudicating the reasonableness of social media-related criminal libel laws

The African Internet governance landscape is yet to acquire the sophistication of government-private sector regulation similar to Western nations. The African Commission would, sooner or later, have to adjudicate the problem of content regulation on social media. Its free speech jurisprudence would be of considerable assistance. First, such laws meet the necessity test only when ‘drafted with sufficient clarity to enable an individual to adapt his behaviour’ accordingly, and ‘cannot give persons who are in charge of its application unlimited powers of decision’.166 Second, to achieve legitimate purpose and be proportionate to and absolutely necessary for its benefits call for answers to the following: Are there sufficient reasons to justify the action? Is there a less restrictive solution? Does the action destroy the essence of the rights guaranteed by the Charter?167 Since the African Commission is duty bound to adapt the Charter’s provisions, as a living instrument, to new media or digital media, the answers must accord with free speech standards suited to article 9 purposes.

The FoE Declaration 2019 also comes in handy. The FoE Declaration 2019 enjoins states to ‘repeal laws that criminalise sedition, insult and publication of false news’, and ‘amend criminal laws on defamation and libel in favour of civil sanctions’ while noting that custodial sentences for criminal defamation violate the right to freedom of expression.168 Based on these principles, the Commission should not find it difficult to identify vague and overbroad provisions in Ethiopia’s CCP 2016 and Nigeria’s PIFM Bill 2019 (if passed as it is) and pronounce their harsh penalties for criminal libel as disproportionate restrictions on free speech.