ARTICLE 19 and the other civil society actors and individual sig-natories to this statement call on the Senegalese authorities to repeal Article 255 of the penal code, which criminalises the publi-cation of false news, and to bring it into line with international standards. In addition, they must adopt human rights approaches in the fight against disinformation and guarantee and respect the rights of individuals in the digital space, particularly freedom of expression.
Over the last decade there has been a trend of governments across Sub-Saharan Africa (SSA) resorting to strict criminal restrictions on dis-information and other kinds of “false” or “misleading” information. While many of these laws are strongly linked to Criminal and Penal Codes that were introduced in the 1800s across Africa by various co-lonial systems, the last years have seen governments introducing new legislative restrictions, often under the guise of tackling cybercrime or protecting electoral integrity. More recently, COVID-19 has prompted some governments to pass emergency measures that criminalise dis-information as it relates to the pandemic. Most recently in Senegal, on 10 June, 2022 a member of the parliament was placed under arrest for offending the Head of State, dissemination of false news and def-amation.
Misinformation refers to the dissemination of false information un-knowingly. Where such news is disseminated intentionally to cause serious social harm, this is known as disinformation. While both are problematic, the UN has called on States to avoid ‘disproportionate measures such as Internet shutdowns and vague and overly-broad laws to criminalise, block, censor and chill online speech and shrink civic space’. It has further stated, ‘These measures are not only in-compatible with international human rights law but also contribute to amplifying misperceptions, fostering fear and entrenching public mis-trust of institutions.’
Civil society and media come together to tackle disinformation [or disinformation]
On Wednesday, 18 May 2022, a capacity-building workshop was held for representatives of the media and civil society organisations, focus-ing on existing laws and policies to counter disinformation and their impact on human rights, in particular on freedom of expression. The workshop, organised by ARTICLE 19 with funding from the United States government’s the Bureau of Democracy, Human Rights and Labor (DRL), is part of the implementation of the “Promoting Rights-Respecting Approaches to Tackling Disinformation in Africa” project in consortium with Protégé QV in Cameroon, the Collaboration on International ICT Policy for East and Southern Africa (CIPESA) in Uganda; and the Centre for Human Rights at the University of Pretoria (CHR).
The overall objective of the project is to ensure that responses to dis-information in sub-Saharan Africa comply with international human rights standards. This training is also part of the implementation of one of the project’s specific objectives, which is to build the capacity of lo-cal groups in sub-Saharan Africa to engage in local policy debates and discussions to promote rights-based approaches that protect In-ternet freedom in responses to disinformation. The workshop brought together a total of 22 participants, including journalists and other me-dia actors, civil society actors, academics, human rights and digital ac-tivists, journalism and media school students, and social media spe-cialists.
The workshop provided an opportunity for participants to analyse laws and policies on disinformation from a human rights perspective using a methodology developed by one of the project partners. The training was also an opportunity to present LEXOTA, an interactive online plat-form and innovative tool that provides a detailed analysis of laws and government actions on disinformation in sub-Saharan Africa designed for use by human rights defenders, researchers, media actors, journal-ists, teachers and policy makers.
As LEXOTA outlines: ‘Article 255 of the Penal Code criminalises the publication, dissemination, disclosure or reproduction of false news (“nouvelles fausses”) when it causes, or is likely to cause, disobedi-ence of the country’s laws, damage to the morale of the population, or discredits public institutions.’ LEXOTA notes that the Article does not set out clear guidelines to determine whether news is ‘false’ or not. It also fails to make clear the threshold required for determining whether public morale has been damaged or public institutions have been dis-credited.
‘Article 255 thus fails to provide clear guidance for individuals and pro-vides an overly-wide degree of discretion to those charged with the enforcement of this law,’ LEXOTA concludes.
Under Article 255, an individual, organisation or company could poten-tially face fines of between 100,000 and 1,500,000 West African francs and between one and three years of imprisonment. ‘If the max-imum fine and prison sentence are imposed without taking into ac-count the circumstances of the offence, then sanctions may be dis-proportionate,’ LEXOTA’s analysis states. ‘This is particularly the case where no harm actually occurs.’
Responses to disinformation must not violate freedom of expression
The growth of the Internet and the online environment has undoubted-ly contributed to an increase in manipulated information regarding poli-tics, human rights – particularly the right to health – and the right to quality information, among others. At the same time, it is important to emphasise that legal or political responses that are not adequately developed to respond to disinformation can themselves present seri-ous risks of infringement of human rights, particularly freedom of ex-pression and access to information, by restricting a wide range of dis-course and by promoting self-censorship. As a result, the penalties for violating the law can sometimes be disproportionate.
International standards clearly state that any restriction on freedom of expression must meet three cumulative requirements:
▪ Be provided for by law (legality);
▪ Pursue one or more legitimate aims (legitimacy);
▪ Be necessary in a democratic society, which implies that it must be proportionate to the legitimate objective pursued (necessity)
Failure to protect freedom of expression undermines democracy
Thus, during the recent workshop, participants’ analysis of Article 255 of the penal code found that the formulation remains vague and that the maximum penalties applicable to the offence of publication or dis-semination of false news are disproportionate. Therefore, it remains important for the government of Senegal to align this Article with the international laws to which Senegal has subscribed so that it meets international standards.
Furthermore, the workshop participants were convinced of the need and urgency to protect and promote human rights online, in particular freedom of expression. Freedom of expression is a cornerstone of democracy, and its protection is fundamental in order for people to en-joy a just and equal society. Failure to protect freedom of expres-sion undermines democracy.
In addition to the role that governments must play in the implementa-tion of policies and laws respectful of human rights with regard to dis-information, those who contributed to the workshop were mindful of the role that all segments of society must play to tackle it, in particular the media and civil society. The participants committed themselves to demonstrating greater professionalism and to working in synergy with other actors, in particular fact-checkers, to build tools and techniques that will strengthen the fight against disinformation, but also to advo-cate for better rights-respecting approaches to fighting online disin-formation.
Civil society organisations :
- AFRICAJOM CENTER
- APPEL , Association des Editeurs et Professionnels de la Presse en ligne
- RADDHO, Rencontre Africaine pour la Défense des Droits de L’homme
- MBAYE CISSE, Researcher, Specialist in Comparative Law Studies, member of the legal committee of the LSDH
- Adama Biteye, Senegalese Committee for Human Rights
- Ndeye Fatou Touré, Journalist at PressAfrik
- Monia INAKANYAMBO, Journalist at Groupe Futur Média iGFM