Africa: Punitive laws fail to curb misinformation in Africa. It’s time to rethink

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Disinformation, best understood as false or misleading information, whether or not it is intended to mislead, has long been recognized as a problem around the world. Along with disinformation, which is propagated deliberately to misinform or mislead, it is a key part of the information mess that distorts public debate around the world.

Concerns about the effects of disinformation on individuals and society have grown globally since 2016, when many commentators saw it as the driving force behind the political upheaval of Brexit in the UK and the election of Donald Trump in the United States.

In Africa, interest in the subject has increased particularly after the news of disinformation campaigns carried out by Bell Pottinger, the British public relations firm, on behalf of the Gupta family which has fueled racial tensions in South Africa. South in 2016 as a counter-narrative to the public’s anger at the central role of the family in grand corruption and the capture of the state.

In Nigeria, concerns about disinformation increased after news of the role played by the disinformation orchestrated by the British political consultancy Cambridge Analytica in its 2015 election. Similarly in Kenya, when the cabinet supported the campaign of President Uhuru Kenyatta in elections two years later.

With growing concern from politicians and the public, governments around the world have since 2016 passed a series of laws and regulations criminalizing the publication or dissemination of what is considered “false information.”

In our study, we examined changes in laws and regulations relating to the publication of “false information” in 11 sub-Saharan countries between 2016 and 2020. We also examined their correlation with disinformation, to understand the role they may play. play in reducing the damage caused by misinformation.

We have found that while these laws have a chilling effect on political and media debate, they do not reduce the damage caused by disinformation. This is important because laws limit public debate, but fail to limit the harmful effects of disinformation.

Laws on “fake news”

We first identified ‘fake news’ laws and regulations in a sample of laws from 11 countries – large and small, English and French – across sub-Saharan Africa. The countries studied between 2016 and 2020 were Benin, Burkina Faso, Côte d’Ivoire, Ethiopia, Kenya, Malawi, Niger, Nigeria, Senegal, South Africa and Uganda.

We then compared the terms of the laws passed with what is known about the types, drivers and effects of disinformation. This was based on the study of 1,200 allegations identified as false by one or more of the 14 fact-checking organizations in Africa. Finally, we assessed the effects of law enforcement.

In our research report, we found that in the 11 countries studied, the number of laws against “fake news” almost doubled, from 17 to 31 from 2016 to 2020.

The problem we have identified is that these laws restrict freedom of expression. And they don’t reduce the actual – or potential – damage caused by misinformation.

This tells us that the punitive approach does not seem to be working.

In contrast, an approach that promotes better access to accurate information and the correction of false information can do so.

Describing the “chilling effect” that laws have had on public debate in Uganda, a Ugandan analyst told us

Self-censorship has increased in the recent past due to continued arbitrary application of the law by the state.

Punitive approach

First, we found that the majority of “fake news” laws take a punitive approach. They did not seek to correct false information or facilitate better access to accurate information. Their aim was to punish the publication of fines and prison terms of up to 10 years.

Second, a third of the laws studied – from the Digital Code (2018) in Benin to the Broadcasting Code of Conduct in Nigeria (2016) – do not require any proof that the allegedly false information has caused or risked any form of harm, for their publication. be declared an offense. Six other laws punished “crimes” not recognized by article 19 of the Universal Declaration of Human Rights on freedom of expression. One example is the “annoyance” of ministers.

Together, more than half of the laws are therefore unrelated to harm reduction as recognized by international law.

Third, we found that there is generally no definition of how courts should determine what information is “false” or what constitutes “harm”. The decisions are therefore arbitrary and subject to political abuse.

Our study found that the majority of those punished under these laws are opposition politicians or journalists. None were a government official or a ruling party politician. This is inconsistent with what we know about disinformation and the role of some politicians in contributing to the problem.

Fourth, we have found that the laws come into force on a small scale compared to the cases of circulating disinformation. The Disinformation Tracker project, set up in 2020 to study the implementation of disinformation and disinformation laws, found that only 12 “law enforcement actions” were taken in three months across the 11 countries. Only a quarter of these actions had an “objectively legitimate aim”.

This pales in comparison to the hundreds of cases of disinformation handled by the growing number of fact-checking organizations in Africa, and the millions of content moderation decisions made daily around the world by technology platforms, many of which have been taken to counter disinformation.

When laws or regulations are used to prevent the continued spread of genuinely harmful false information, as in the cases we looked at in Uganda and South Africa, it is plausible that they could directly reduce the damage.

But, our study suggests that these cases are the exception, not the rule.

What works against disinformation

Our study shows that the punitive legislative approach does not work and suggests that alternative approaches may be more effective.

This includes efforts across the continent to improve access to accurate information. Examples include the establishment of an independent oversight body for the quality of official statistics, as exists in the UK, and an independent body to ensure public access to such data, as in South Africa.

This is essential to counter disinformation.

This can be seen in the “right of reply” enshrined in Malawian law, which obliges broadcasters to broadcast “counter-versions” from “entities affected by a claim of fact” if the “fact” can occur. prove false.

This can also be seen in a new improved press code in Senegal. Introduced in 2017, it requires all information operations to comply with a code of professional ethics. This includes a focus on auditing, with work overseen by an independent regulator.

Another approach enables the growth of independent fact-checking organizations observed across the continent in recent years. These alternative approaches can reduce the damage caused by disinformation, without reducing freedom of expression.

Assane Diagne, Director of Reporters Without Borders for West Africa and teacher at the Higher School of Journalism, Internet Professions and Communication in Dakar, Senegal, was part of the research team.

Peter Cunliffe-Jones, Visiting Fellow and Co-Director of the Chevening African Media Freedom Fellowship, University of Westminster; Alan Finlay, Senior Lecturer: Journalism and Media Studies, University of the Witwatersrand, and Anya Schiffrin, Director, Technology, Media and Communications Specialization, School of International and Public Affairs, Columbia University

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