In the five years after the world woke up to misinformation (and “post truth” and “fake news” were named words of the year), two very different groups got busy. One was a small but growing network of fact-checking organisations, set up worldwide to counter false information.
The other was politicians and their legal drafters.
In 2017, when Africa Check held a meeting for fact-checkers in its Johannesburg office, just two fact-checking organisations were operating on the continent: it and the newly-formed Pesa Check. Today, there are at least 20 initiatives from Ethiopia to the Democratic Republic of the Congo and Zimbabwe. Each month, despite the challenges of shoestring budgets and staffing, they check and verify hundreds of claims between them – some true, some false, many in between. In the process, they identify and debunk harmful misinformation, reduce its circulation on major platforms, and, according to growing evidence, correct misbeliefs.
Conversely, the challenge for those drawing up laws to combat false information is not resources. It is working out types, drivers and effects of misinformation and how best to counter them. And, if that is their aim, they are not succeeding.
A near doubling in ‘false news laws’ since 2016
Last year, three colleagues and I (1) researched policy responses to misinformation in 11 countries across Africa – Benin, Burkina Faso, Côte d’Ivoire, Ethiopia, Kenya, Malawi, Niger, Nigeria, Senegal, South Africa and Uganda. In five years from 2016, we found, governments in these countries nearly doubled the laws and regulations related to “false information” – from 17 to 31. (This is likely an undercount.)
The growth in often punitive laws has had a “chilling effect” on media and political freedom, political analysts told us. “Self-censorship has increased in the recent past due to the state’s continued arbitrary application of the law and violence against reporters and social media journalists,” one analyst in Uganda told us, on condition of anonymity. What’s more, the laws had virtually no identifiable effect on the level of harm misinformation caused.
Up to 10 years jail, despite no proof of harm caused
Even countries with a relatively liberal record on the media have introduced tough new legislation. In Benin, a new digital law, the Code du numérique, was introduced in 2018. Under Article 550(3), anyone who “creates or shares false information” online, including on social media, faces up to six months in prison, a fine or both. Reporters Without Borders called the law a “new weapon to neutralise the press”.
Burkina Faso in 2019 changed Articles 312 to 313 of its Penal Code to make intentionally publishing “false news” on security issues punishable by five to 10 years in prison and with major fines. As in nine other countries, no proof of harm is needed for “falsity” to be punished. In Côte d’Ivoire, a new press law – the Loi 2017-867 régime juridique de la presse – was introduced in 2017 to respond to “false” news. “The law … is being used to gag the press,” Ivorian publisher Coulibaly Vamara told reporters. In Niger, authorities introduced a new “cybercrime” law in 2019, criticised by Amnesty International as “a tool used to repress opposition voices”.
Other countries with long histories of strict media laws still felt the need for new legislation. Ethiopia, with numerous laws to punish “false” reporting, introduced a new “Hate Speech and Disinformation Prevention and Suppression Proclamation” in 2020. Kenya and Uganda both introduced two new laws to penalise “false” information. In Kenya, it was the Election Offences Act of 2016 and the 2018 Computer Misuse and Cybercrimes Act. Uganda passed the Data Protection and Privacy Act, and new electoral laws. But what counts as false information and how harm is proven are unclear in all of them. Nigeria both amended its Broadcasting Code of Conduct and sought to go further. The so-called Social Media Bill, promising severe penalties for spreading false information online, is currently before the country’s senate.
Where used to stop future harm, punitive laws may work
There is certainly reason to be worried by misinformation. In just a few years, false information has provoked vigilante violence in Ethiopia and Nigeria, caused people to take ineffective medical treatments for Ebola and Covid-19, and harmed individuals’ mental health and finances. Where laws or regulations are used to prevent the future spread of harmful misinformation, it’s plausible they may directly reduce harm.
This happened when laws were used against financial hoaxes spread on radio in Uganda and dangerous public health misinformation in South Africa during the pandemic. But as a rule, these laws are reactive, punishing but neither stopping nor correcting the alleged misinformation.
Limited in scale, arbitrarily used and targeting ‘falsity’ not reducing harm
For all the efforts of the legal drafters since 2016, the limited scale of action taken against actual harmful misinformation is striking. The Disinformation Tracker project, set up in 2020, identified just 12 “law enforcement actions” for “false information” in three months in the 11 countries we studied. Of those, only three cases related to an “objectively legitimate aim”. Compared to the many hundreds of actions by fact-checkers in correcting misinformation, and the three million daily content moderation decisions just by one platform alone, the scale of legal action is minute. At the same time, our study shows that, even if used, the laws promise little reduction in harmful misinformation.
First, 10 of the 31 laws or regulations we studied require no evidence the “false” information caused or risked harm for it to be penalised. “Falsity” alone is enough. Second, how courts determine “falsity” or “harm” are not set out, so decisions are arbitrary. Third, a further six of the 31 laws related to harm, such as the “annoyance” of ministers, are not legitimate under international law. Fourth, the arbitrary laws are framed and applied in ways that target opposition politicians and journalists, not those who create and spread most misinformation.
A more positive approach is possible: enabling corrective information, self-regulation of the media, and holding officials themselves to account
More positive approaches are, of course, possible. As our report notes, access to reliable information is crucial to counter misinformation – and is growing in many countries, at least in theory, if not yet in practice. Countries such as South Africa, with legal frameworks that allow organisations like this one to work, enable an effective means of correcting misinformation.
Malawi, in 2016, introduced a new law obliging broadcasters to air “counter-versions” from those “affected by an assertion of (a false) fact”. Senegal, in 2017, introduced a new self-regulatory press code aimed at raising standards against misinformation.
Another way is possible, if the political will is there.
1. Assane Diagne, Director for West Africa at Reporters Without Borders in Dakar, Senegal, and former Chief Editor Africa Check in French; Alan Finlay, a lecturer and researcher in internet and media rights at the University of the Witwatersrand, South Africa; and Dr Anya Schiffrin, Director of the Technology, Media and Communications specialisation at the School of International and Public Affairs, at Columbia University, United States.