Module 3 Criminalisation of Online Speech Dec 2022

Module 3
Advanced Modules
Criminalisation of on Digital Rights and
Online Speech
Freedom of
Expression Online
Module 3: Criminalisation of online speech
ISBN 978-0-9935214-1-6
Published by Media Legal Defence Initiative: www.mediadefence.org
This report was prepared with the assistance of ALT Advisory: https://altadvisory.africa/
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November 2022
Table of Contents
Introduction ......................................................................................................................... 1
Overview of Criminalising Online Speech ......................................................................... 1
Applicable International Human Rights Standards .......................................................... 3
Overview of the right to freedom of expression and associated rights ............................... 3
Other implicated rights....................................................................................................... 5
Restricting Freedom of Speech Online ............................................................................. 6
National security ................................................................................................................ 8
Counter-terrorism ............................................................................................................ 12
Public order offences ....................................................................................................... 13
Forms of Criminalisation .................................................................................................. 14
Hate speech .................................................................................................................... 14
Overview of international instruments dealing with hate speech................................... 14
Identifying hate speech ................................................................................................ 16
Online hate speech ...................................................................................................... 16
Incidences of hate speech regulation ........................................................................... 18
Cybercrime ...................................................................................................................... 18
Overview of international instruments .......................................................................... 20
The rise in cybercrime laws .......................................................................................... 21
Fake news and disinformation ......................................................................................... 23
Addressing fake news .................................................................................................. 24
Fake news in the courts ............................................................................................... 27
Defamation ...................................................................................................................... 29
Overview of international instruments .......................................................................... 29
Defamation in the courts .............................................................................................. 30
Conclusion ........................................................................................................................ 30
MODULE 3
Criminalisation of Online Speech
The objectives of this module are:
• To provide an overview of the criminalisation of online speech.
• To set out the applicable international human rights standards and fundamental
international and regional legal principles.
• To understand the impact of criminalisation on freedom of expression and identify

legitimate purposes for limiting freedom of expression.
• To set out and to examine the different forms of criminalisation, including hate
speech, cybercrime and disinformation.
• To identify practical ways to deal with the competing interests of criminality and
free speech.
Introduction
There has been a growing trend of criminalising online speech over recent years. Many states
have attempted to justify this as a response to threats of hate speech, national security, the
mushrooming of cybercrimes, and the proliferation of disinformation. In many instances, this
has led to the stifling of free speech and access to information. While some of the online harms
that prompt criminalisation are a genuine concern which may warrant responses from states,
there is an urgent need to ensure that states do not use these to justify restricting speech or
controlling content.
This module provides an overview of the criminalisation of online speech. It looks at the
applicable legal framework that guides what is permissible in terms of restrictions on the right
to freedom of expression, and the relevant considerations for balancing competing rights. This
module will also touch on hate speech, cybercrimes, and disinformation.
Overview of Criminalising Online Speech
Criminalisation, in the context of online speech, refers to the enactment of laws and policies
that render specific forms of online expression illegal. Such criminalisation may be targeted at
a range of harmful expressions, including:
• Hate speech;
• Threats or incitement to terrorism and violence;
• Disinformation;
• Defamation;
1
• Sexual abuse material including child sexual abuse material, the non-consensual
dissemination of intimate images (NCII), and sexual exploitation online; and
• Cybercrimes.
From a criminal justice perspective, certain actions may warrant criminal consequences.
However, in the context of online speech offences, there are a variety of competing
considerations in the interplay between the offences, the rights they limit, and the limitations
caused by creating the offences.
Walking the tightrope: criminalising online speech
The complexities of criminalising online speech should not be underestimated. The digital
landscape, which in many ways has brought people together and facilitated free speech
and dissent, has also created spaces that breed divisiveness, division, and exclusion.
Supremacist ideologies, populist nationalism, gendered violence, and racism and
xenophobia are some of the social ills that can take root in both our offline and online
societies. Balancing dignity, equality, autonomy, and development against the right to free
speech is not an easy task.
It is arguable that states’ moves to impose restrictive measures on harmful speech,

instead of addressing the systemic issues, such as the factors that enable the spread of
misinformation online, are short-sighted solutions that restrict both those who are affected
by online harms and those who are lawfully and legitimately expressing themselves.
Organisations like the Collaboration on International ICT Policy in East and Southern
Africa (CIPESA) and the Council of Foreign Relations (CFR) have noted with concern
that governments the world over are adopting legislation that curtails free expression
rights on the internet, either through the criminalisation of specific actions or through laws
aimed at combating criminal activity online.
The right to freedom of expression is a fundamental human right that is protected in the
Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and
Political Rights (ICCPR), and the African Charter on Human and People’s Rights (African
Charter). It is a right that is necessary for good governance and economic and social progress
because it enables accountability by allowing people to freely debate and raise concerns with
the government, including the protection and promotion of other human rights.1
Understanding the role of online speech offences, and their intended and unintended
consequences requires careful navigation. Many laws that criminalise online speech are seen
to be vague and overbroad and often fail to strike the appropriate balance between competing
rights. These laws result in a chilling effect on the right to freedom of expression, whereby
individuals steer clear of controversial topics because there is uncertainty about what is
1ARTICLE 19, ‘Hate Speech’ Explained: Toolkit (2015) (accessible at:

https://www.article19.org/resources/hate-speech-explained-a-toolkit/).
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permitted and what is not.2 The chilling effect may be exacerbated where penalties for breach
of the law are unduly harsh, as is the case with certain laws that criminalise online speech.
Applicable International Human Rights Standards
Overview of the right to freedom of expression and associated rights
It is trite that the right to freedom of expression is deeply entrenched as a fundamental human
right and given protection through various international and regional instruments. Article 19 of
the UDHR states:
“Everyone has the right to freedom of opinion and expression; this right includes
freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers.”
Article 19 of the ICCPR gives further effect to this, and article 20 of the ICCPR provides for
certain restrictions on speech:
“1. Any propaganda for war shall be prohibited by law.

2. Any advocacy of national, racial or religious hatred that constitutes incitement
to discrimination, hostility or violence shall be prohibited by law.”
In 2011, the United Nations Human Rights Committee published General Comment 34, which
provides valuable guidance on how the right to freedom of expression should be interpreted.
It states that freedom of expression is the “foundation stone for every free and democratic
society”, and that it is a “necessary condition for the realisation of the principles of
transparency and accountability that are, in turn, essential for the promotion and protection of
human rights.” General Comment 34 notes that the right to freedom of expression includes:
• Political discourse.
• Commentary on one’s own affairs and on public affairs.
• Canvassing ideas.
• Discussing human rights.
• Journalism.
• Cultural and artistic expression.
• Teaching, and religious discourse.
Freedom of expression may even extend to speech that may be regarded as deeply offensive
by some people. The right applies both to verbal and non-verbal communications as well as
all modes of expression, including audio-visual, electronic, and internet-based communication.
2Centre for Law and Democracy ‘Restriction on freedom of expression’ (accessible at:
http://www.law-democracy.org/live/wp-content/uploads/2015/02/foe-briefingnotes-2.pdf)
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Freedom of expression as an enabling right
• The United Nations Special Rapporteur on the Promotion and Protection of the
Right to Freedom of Opinion and Expression (UNSR on FreeEx) in a 2011 Report
noted that the “right to freedom of opinion and expression is as much a fundamental
right on its own accord as it is an ‘enabler’ of other rights”. The UNSR went on to
recognise that the right to freedom of expression also impacts economic, social,
and cultural rights, such as the right to education and the right to take part in cultural
life and to enjoy the benefits of scientific progress and its applications.
• General Comment 34 acknowledged that freedom of expression embraces the right

of access to information, plays an important role in the conduct of public affairs,
contributes to the effective exercise of the right to vote, and is integral to the
enjoyment of the rights to freedom of assembly and association.
The 2017 Report of the UNSR on FreeEx sets out states’ obligations under article 19 of the
ICCPR. States may not interfere with, or in any way restrict, the holding of opinions, unless
there are instances that warrant restriction – which must be provided by law and necessary
for the respect of the rights or reputations of others, or for the protection of national security
or public order, or public health or morals. States are also under an obligation to take steps to
protect individuals from undue interference with human rights when committed by private
actors, including taking appropriate steps to prevent, investigate, punish, and redress private
actors’ abuse. Such steps include the adoption and implementation of legislative, judicial,
administrative, educative, and other appropriate measures that require or enable businesses
to respect freedom of expression, and, where private sector abuses occur, access to an
effective remedy.
In the African context, article 9 of the African Charter provides that:
“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.”
African regional case law: limiting freedom of expression
• In Constitutional Rights Project v Nigeria, the African Commission on Human and

People’s Rights (ACHPR) held that the “only legitimate reasons for limitations of the
rights and freedoms of the African Charter are found in Article 27(2), that is, that the
rights “shall be exercised with due regard to the rights of others, collective security,
morality and common interest”. The ACHPR went on to state that the “justification
of limitations must be strictly proportionate with and absolutely necessary for the
advantages which follow. Most important, a limitation may not erode a right such
that the right itself becomes illusory.”
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• The African Court on Human and People’s Rights (African Court) in Konaté v
Burkina Faso held that criminal sanctions for defamation must be necessary and
proportionate, failing which they are incompatible with the ACHPR and other human
rights instruments. Accordingly, expression must be within the prescripts of the law,
and may only be limited in terms of article 27(2) of the African Charter, bearing in
mind what is proportionate and necessary.
In 2002, the Declaration of Principles on Freedom of Expression in Africa was adopted to

supplement article 9 of the African Charter. Article 2 of the Declaration of Principles
established that arbitrary interference with a person’s freedom of expression is prohibited and
that any restrictions on freedom of expression shall be provided by law, serve a legitimate
interest and be necessary in a democratic society. The revised 2019 Declaration of Principles
on Freedom of Expression and Access to Information in Africa further provide that:
“States shall criminalise prohibited speech as a last resort and only for the most
severe cases. In determining the threshold of severity that may warrant criminal
sanctions, States shall take into account the:
a. prevailing social and political context;

b. status of the speaker in relation to the audience;
c. existence of a clear intent to incite;
d. content and form of the speech;
e. extent of the speech, including its public nature, size of audience
f. and means of dissemination;
g. real likelihood and imminence of harm.”
It goes on to further state that States should not prohibit speech that merely lacks
civility, or which offends or disturbs.3
Other implicated rights
In the context of online criminalisation, it is important to note that there are other interests and
rights involved alongside the right to freedom of expression. These are different to the rights
that are enabled through freedom of expression. The divergence of varying rights has been
aptly captured in a 2019 Report on the UNSR on FreeEx:
“[F]reedom of expression is a legal right of paramount value for democratic

societies, interdependent with and supportive of other rights throughout the corpus
of human rights law. At the same time, anti-discrimination, equality and equal and
effective public participation underpin the entire corpus of human rights law. The
kind of expression captured in article 20 of the International Covenant on Civil and
Political Rights and article 4 of the International Convention on the Elimination of
3 Principle 23 (3).
5
All Forms of Racial Discrimination presents challenges to both sets of norms,

something that all participants in public life must acknowledge.”
Equality and non-discrimination are among the rights sometimes at odds with freedom of
expression. While these rights can be exercised harmoniously, tensions are not uncommon.
Beyond equality and non-discrimination, when considering freedom of expression and the
criminalisation of online speech, regard should be had to other rights, including the rights of
children. In some instances, protection measures online for children have at times taken a
back seat to freedom of expression. In contrast, at other times, there have been constraints
on children’s or others’ digital expression due to the need to combat online violence and
exploitation. A 2017 UNICEF Report on Children’s Rights and Business in a Digital World:
Freedom of Expression, Association, Access to Information and Participation explains that
what is ultimately required is some form of balancing between children’s rights to freedom of
expression and access to information and their right to be protected from violence.
There are other instances where there is also a need for balance:
• Balancing the right to freedom of expression with the right to privacy when determining
whether to publish content.
• Striking a balance between the right to freedom of expression and the right to reputation.
It is necessary to note that rights are not absolute and may be subject to certain limitations
and restrictions in order to balance competing rights and interests.4 Ultimately, the right to
freedom of expression is not unbounded and can be restricted to protect other rights, just as
other rights may be subject to certain limitations and restrictions in order to advance freedom
of expression. The restrictions of the right to freedom of expression will be dealt with further
in the following section.
Restricting Freedom of Speech Online
As a result of the dramatic changes in the spread of information occasioned by the internet,
there has been a proliferation of attempts to address issues relating to terrorism and national
security, cybercrimes, and the spreading of disinformation online. Many of these attempts are,
to varying degrees, in conflict with the right to freedom of expression.5 Although the right to
freedom of expression is a fundamental human right, it is not absolute. As with most rights,
freedom of expression may be lawfully restricted where the restrictions are reasonable and
justifiable in an open and democratic society. However, as confirmed in General Comment 34,
the restrictions imposed by states should not put the right to freedom of expression in jeopardy.
Article 19(3) of ICCPR sets out the grounds upon which the right to seek, receive and impart
information and ideas on the internet may be limited. Namely, the restriction must be:
4 Media Defence, ‘Training Manual on Digital Rights and Freedom of Expression Online Litigating
digital rights and online freedom of expression in East, West and Southern Africa’ at (accessible at
https://www.mediadefence.org/resources/mldi-training-manual-digital-rights-and-freedom-expression-
online).
5 Shepard, ‘Extremism, Free Speech and the Rule of Law: Evaluating the Compliance of Legislation
Restricting Extremist Expressions with Article 19 ICCPR’ Utrecht Journal of International and
European Law (2017) (accessible at https://www.utrechtjournal.org/articles/10.5334/ujiel.405/).
6
• Provided by law.
• Necessary for respect for the rights of others, and for the protection of national security
or of public order, or of public health or morals.
To determine whether a limitation of the right to freedom of expression is justifiable, a

three-stage test must be applied in which it must be established that the limitation is:
• Provided by law.
• Pursues a legitimate aim.
• Necessary for a legitimate purpose.6
It is important to note that articles 19(3) and 20 of the ICCPR are compatible, and the
prohibited grounds listed in article 20 can also be restricted in terms of article 19(3) and must
also pass the three-stage test. It is further necessary to note that within the context of article
20, there is a need to recognise the distinction between protected and unprotected speech,
and between what is prohibited and what is discriminatory, derogatory and demeaning
discourse. Article 4(a) of the International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD) provides that certain forms of expression are prohibited and
punishable by law. These include:
• Dissemination of ideas based on racial superiority or hatred.

• Incitement to racial discrimination.
• Acts or incitement of violence against any race or group of persons of another colour or
ethnic origin of racially motivated violence.
• The provision of assistance, including of a financial nature, to racist activities.
Three-stage test for the justifiable criminalisation of online speech
The first limb (that the restriction is provided for by law) is relatively straightforward in
relation to the criminalisation of online speech. The legislation must be clear, accessible,
apply equally to everyone and be consistent with international human rights norms.
Despite this, governments continue to enact laws that are vague, and which give
themselves wide-ranging powers, including the power to decide what constitutes a
legitimate purpose to restrict freedom of expression. On counter-terrorism measures,
General Comment 34 provides that any offences relating to the encouragement of
terrorism or extremist activity, or to the praising, glorifying, or justifying of terrorism, should
be clearly defined to ensure that they do not lead to unnecessary or disproportionate
interferences with freedom of expression. Excessive restrictions on access to information
must also be avoided.
The second limb (that it pursues a legitimate aim) is more complicated and is important
for the broader discussion on the criminalisation of online speech. In the current digital
6For a detailed outline of the limitation of freedom of expression see Module 2 on Restricting Access
and Content at 4-5.
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and political climate, the criminalisation of online speech is commonly used for political or
other illegitimate purposes. Although there are legitimate grounds to restrict freedom of
expression on the basis of national security, it is frequently subject to abuse.
The third limb requires an assessment of whether the restriction is necessary, where
legislation provides for restricting freedom of expression for the legitimate purposes of
protecting national security, countering terrorism, ensuring public order, or respecting the
rights of others. In respect of necessity and proportionality, a 2019 Report of the UNSR
on FreeEx notes that “restrictions must be demonstrated by the state as necessary to
protect a legitimate interest and to be the least restrictive means to achieve the purported
aim.” A 2018 UNESCO report on world trends in freedom of expression and media
development explains that this leg of the test can also cause controversy, when national
security concerns are cited by states “to enact measures that present a clear challenge
to media freedom, raising issues of necessity and proportionality.” States are often quick
to justify restrictions without fully considering the principle of necessity and whether less
restrictive means are available. With new online threats, states are also becoming more
restrictive, often in violation of the above test.
The different legitimate aims and the potential concerns that arise are discussed below.
National security
UNESCO has observed the growing trend of citing national security concerns as a justification
for restricting freedom of expression. A legitimate national security interest is one that aims “to
protect the existence of the nation or its territorial integrity or political independence against
force or threat of force.” This definition was laid out in the 1985 Siracusa Principles on the
Limitation and Derogation Provisions in the International Covenant on Civil and Political
Rights. The Siracusa Principles further provide that a national security limitation:
“cannot be invoked as a reason for imposing limitations to prevent merely local or

relatively isolated threats to law and order” and “cannot be used as a pretext for
imposing vague or arbitrary limitations and may only be invoked when there exists
adequate safeguards and effective remedies against abuse.”
The Johannesburg Principles on National Security, Freedom of Expression and Access to

Information were drawn up in 1996 by a group of experts in international law, national security,
and human rights. The principles state that in order for expression to be punished as a threat
to national security, a government must show that:
• The expression is intended to incite imminent violence.

• It is likely to incite such violence.
• There is a direct and immediate connection between the expression and the likelihood
or occurrence of such violence.
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The Johannesburg Principles further provide that punishment (for disclosure of information)
based on national security grounds is prohibited if the disclosure does not actually cause harm
and is not likely to harm a legitimate national security interest.
The 2019 Declaration of the ACHPR further provides that “[f]reedom of expression shall not
be restricted on public order or national security grounds unless there is a real risk of harm to
a legitimate interest and there is a close causal link between the risk of harm and the
expression.”
Issues of national security have caused complications for the advancement of free expression
for decades, including in the offline domain, as illustrated by the case note below.
Case note: Başkaya and Okçuoğlu v Turkey
In 1991, Mr Başkaya wrote a book which was published by Mr Okçuoğlu. Both Mr Başkaya
and Mr Okçuoğlu are Turkish citizens. The book detailed the socio-economic revolution of
Turkey and was critical of the ideology adopted by the state. The book came to the attention
of the Turkish prosecution authorities, and Mr Başkaya was subsequently charged with
disseminating propaganda against the indivisibility of the state. Mr Okçuoğlu was charged
as the owner of the publishing company.
The National Security Court acquitted both men in 1992. However, the prosecutor
subsequently successfully appealed the decision, which led to the matter being referred
back to the trial court, which subsequently found both men guilty of the offences with which
they had been charged. They were both sentenced to imprisonment and a fine. This decision
was unsuccessfully appealed to the Court of Cassation, leading Mr Başkaya and Mr
Okçuoğlu to approach the European Court of Human Rights (ECtHR).
Before the ECtHR, they argued, among other things, that their right to freedom of expression
had been violated. The respondent state argued that the measures taken against the men
were based on a law that was aimed at protecting interests such as territorial integrity,
national unity, national security and the prevention of disorder and crime. The state further
argued that they were convicted in pursuance of these legitimate aims since they had
disseminated separatist propaganda vindicating the acts of the PKK (Workers’ Party of
Kurdistan), a terrorist organisation, which threatened these interests.
In 1999, the ECtHR delivered its decision, noting that freedom of expression is one of the
“essential foundations of a democratic society and one of the basic conditions for its
progress and for each individual’s self-fulfilment”, but may be subject to certain restrictions.
The ECtHR emphasised that exceptions to freedom of expression must be construed
strictly, and the need for any restrictions must be established convincingly. In conducting its
limitations analysis, the ECtHR made the following observations:
• The requirement of “necessary” implies the existence of a “pressing social need”.
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• The content of the impugned statements and the context in which they were issued
must be considered when determining if the interference was “proportionate to the
legitimate aims pursued”.
• Restrictions operate on a spectrum. There is little scope for restrictions on political
speech or on debate on matters of public interest. However, there is a wider margin of
appreciation when examining the need for an interference with freedom of expression
in the context of remarks that incite violence.
The ECtHR, with due regard to Turkey’s context, found that the measures taken by the state
were in furtherance of the legitimate aim to ensure national security. However, the conviction
and sentencing of Mr Başkaya and Mr Okçuoğlu was disproportionate to the aims pursued
and therefore not “necessary in a democratic society”. The ECtHR accordingly found that
the right to freedom of expression had been violated.
National security can indeed be a legitimate aim; however, a restriction on freedom of

expression must pass the other legs of the test as well, and cannot be justified on the
legitimacy of national security grounds alone.
Case note: Good v Republic of Botswana
Mr Good, a political studies professor at the University of Botswana, was declared an

undesirable inhabitant following the publication of a co-authored article which was critical
of Botswana’s presidential succession. Mr Good was deported without reason and was not
provided with an opportunity to challenge the decision. After unsuccessfully exhausting all
internal remedies, Mr Good approached the ACHPR, where he alleged that his right to be
heard, his right to freedom of expression, his right to freedom of movement and his right to
family life, all contained in the African Charter, had been violated.
In response to the allegation regarding the restriction of Mr Good’s right to freedom of

movement, the respondent state relied on national security as a justification, arguing that
the ACHPR does not have competency over such issues as “[s]tates must be left alone
and allowed to deal with matters of peace and national security”. The respondent state did
not address the alleged restriction on freedom of expression, and Mr Good argued that the
respondent state failed to illustrate the nature of the so-called national security threat posed
and why the deportation could be justified as proportionate in severity and intensity to the
publication of the academic paper.
Despite the lack of a full response from the respondent state, the ACHPR analysed the
alleged infringement and found that there is international consensus on the need to restrict
freedom of expression for national security, but such a restriction must be necessary,
serve a legitimate interest and be provided for by law. The ACHPR went on to note that
notwithstanding the fact that “in the African Charter the grounds of limitation to freedom of
expression are not expressly provided as in the other international and regional human
rights treaties, the phrase 'within the law' under Article 9(2) provides a leeway to cautiously
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fit in legitimate and justifiable individual, collective and national interests as grounds of
limitation.”
When conducting the limitations analysis, the ACHPR emphasised that a “higher degree
of tolerance is expected when it is a political speech and an even higher threshold is
required when it is directed towards the government and government officials.” The ACHPR
found that there was nothing in the article co-authored by Mr Good that could potentially
create instability, unrest, or violence in the country; rather, it was merely the expression of
opinions and views and did not amount to defamatory, disparaging, or inflammatory
expression.
Ultimately, the ACHPR found that:
“The action of the [r]espondent [s]tate was unnecessary, disproportionate and

incompatible with the practices of democratic societies, international human
rights norms and the African Charter in particular. The expulsion of a
non-national legally resident in a country, for simply expressing their views,
especially within the course of their profession, is a flagrant violation of [a]rticle
9(2) of the Charter.”
Case note: SERAP v the Federal Republic of Nigeria
This case in the Community Court of Justice of the Economic Community of West African
States (ECOWAS) also bears mention dealt with the Nigerian government’s response to
Twitter’s removal of content tweeted by the President from its platform for violation of its
rules.7 Nigeria suspended the operations of Twitter arguing that its ongoing operations
constituted threats to the stability of Nigeria and that “Twitter is undermining Nigeria’s
corporate existence” by allowing content that referred to separatist politics.
The ECOWAS Court emphasised the role of social media platforms such as Twitter as
enablers of the rights to freedom of expression and access to information and held that the
suspension was not made under any law or order of a court and that the government’s mere
reference or allusion to national security threats posed by protests in the country and their
supposed potential to destabilise Nigeria did not constitute legal justification for the
infringement on the right to freedom of expression.
As evinced in these cases, there are times when states will rely on national security when it is
in fact not a legitimate aim. In such instances, courts should be quick to find the distinction
between legitimate threats and critical expression.
7 Media Defence and Mojirayo Ogunlana-Nkanga represented the applicants in this case.
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Counter-terrorism
Terrorism and extremism, which are largely undefined and often misused terms, are frequently
the basis for states to invoke restrictive measures on freedom of expression online in the name
of national security. International human rights law provides extensive guidance for states on
how to balance the real need to respond to terrorism, with the fundamental right to freedom of
expression.
The 2015 Joint Declaration on Freedom of Expression and Responses to Conflict Situations
by Special Rapporteurs on Freedom of Expression provides that:
“States should refrain from applying restrictions relating to ‘terrorism’ in an unduly

broad manner. Criminal responsibility for expression relating to terrorism should be
limited to those who incite others to terrorism; vague concepts such as glorifying’,
‘justifying’ or ‘encouraging’ terrorism should not be used.”
The 2016 Joint Declaration on Freedom of Expression and Countering Violent Extremism
notes that:
“Everyone has the right to seek, receive and impart information and ideas of all
kinds, especially on matters of public concern, including issues relating to violence
and terrorism, as well as to comment on and criticise the manner in which [s]tates
and politicians respond to these phenomena.”
The 2016 Joint Declaration further provides that states are obliged to ensure that there is an
enabling environment for the media to keep society informed, “particularly in times of
heightened social or political tensions”. This point is also emphasised in General Comment
No. 34 on the ICCPR, which states that the media plays an important role in informing the
public about acts of terrorism and that it should be able to perform its legitimate functions and
duties in this regard without hindrance.8
At a minimum, if there is to be a limitation of access to the internet or to content online on the

grounds of anti-terrorism, there should be transparency regarding the laws, policies and
practices relied upon, clear definitions of terms such as ‘national security’ and ‘terrorism’, and
independent and impartial oversight being exercised.
There is also a general presumption in international law that prior restraint – restricting access
to content before it has been published – is unnecessary and disproportionate. Although there
may be a strong argument for the need to step in to stop the dissemination of information prior
to publication of content relating to terrorism, the courts have stressed that prior restraint can
only be allowed in exceptional circumstances and must be robustly justified.9
8 UN Human Rights Council, ‘General Comment no. 34 at para 46 (2011) (accessible at

https://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf).
9 For example, see New York Times Co. v United States (1971) and Amnesty International Togo and
Ors v. The Togolese Republic.
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Public order offences
Public order offences can be developed and implemented to provide for legitimate aims,
especially in the context of security forces. This means that laws which allow security forces
to limit free speech to protect public order may be legitimate, as long as they comply with the
requirements listed above. This legitimate aim is one that should not be abused due to the
significant impact it can have on the people affected by the restriction on freedom of speech.
This is particularly evident in the recent proliferation of internet shutdowns during crucial
election periods. These acts are usually commissioned under the guise of maintaining public
order, whereas they constitute an effort by states to silence dissent. The consequences of
internet shutdowns are that the public’s right to access information, which may be crucial at a
particular time, is violated.10 For more on internet shutdowns, see Advanced Module 2 of this
series on Restricting Access and Content.
UNESCO Training Modules on Public Order and Freedom of Expression
In response to tensions between the maintenance of public order and the restrictions on
freedom of expression, particularly in the context of journalism, UNESCO has developed
training modules to empower both security forces and journalists to understand the law and
their respective roles and responsibilities.
• The 2015 Freedom of Expression and Public Order Training Manual provides legal
references and tools for security forces to promote transparency, facilitate and improve
relations between security forces and the media, and encourage respect for the safety
of journalists in the field.
• The 2018 report from UNESCO Freedom of Expression and Public Order: Fostering the
Relationship between Security Forces and Journalists seeks to facilitate the relationship
between security forces and journalists in order to establish an enabling environment for
journalists. This training manual aims to empower journalists and citizens in order for
them to exercise their rights to freedom of expression and access to information. It
focuses on the importance of transparent law enforcement institutions, which respect
freedom of expression and the right to information and promote accountability and the
rule of law while respecting human rights.
• In 2022, UNESCO, together with the International Police Association and IBZ Gimborn
Castle launched a joint Massive Open Online Course (MOOC) for members of law
enforcement and police officers to raise awareness of international and regional
standards on freedom of expression, access to information, and safety of journalists.
10 For more on internet shutdowns see Module 2 on Restricting Access and Content.
13
Forms of Criminalisation
In 2019, the ACHPR recognised that the primary issues relating to freedom of expression
include:
• Co-regulation of the media.

• Safety of journalists.
• Restrictions related to cyber-crime laws.
• Regulation of the internet.
While there is an array of actions and forms of speech that have attracted criminal sanctions,
this section focuses on hate speech, cybercrimes, and disinformation.11
Hate speech
The reconciliation of values
A 2019 Report by the UNSR on FreeEx found that:
“Under international human rights law, the limitation of hate speech seems to
demand a reconciliation of two sets of values: democratic society’s requirements
to allow open debate and individual autonomy and development with the
compelling obligation to prevent attacks on vulnerable communities and ensure
the equal and non-discriminatory participation of all individuals in public life.
Governments often exploit the resulting uncertainty to threaten legitimate
expression, such as political dissent and criticism or religious disagreement.”
The above statement of the UNSR illustrates some of the complexities regarding the
criminalisation of hate speech. The escalation of prejudice and intolerance has led many
governments to criminalise hate speech. However, this creates inherent difficulties because
hate speech is a vague term that lacks universal understanding, and such provisions are open
to abuse and restrictions on a wide range of lawful expression.
Overview of international instruments dealing with hate speech
• Article 20(2) of the ICCPR obliges states to prohibit by law “any advocacy of national,
racial or religious hatred that constitutes incitement to discrimination, hostility or
violence.”
• The Rabat Plan of Action was introduced in 2012 to provide recommendations on the
prohibition of advocacy of national, racial or religious hatred that constitutes incitement
to discrimination, hostility or violence. It outlines six factors that should be considered
when determining whether a speaker intends and is capable of having the effect of
11 For more on specific types of speech-related offences, see Media Defence above n 3 at 48-61.
14
inciting their audience to engage in violent or discriminatory action through the advocacy
of discriminatory hatred.
The 2019 report of the UNSR on FreeEx also evaluates the human rights law that applies to
the regulation of online hate speech and recommends that States should not treat online
hate speech as a separate category from offline hate speech with higher penalties, should
strictly define what constitutes prohibited content in their domestic laws, and should resist
criminalising speech except in the gravest situations.
Rabat Plan of Action: Six-part threshold test for expressions considered

criminal offences
“Context: Context is of great importance when assessing whether particular

statements are likely to incite discrimination, hostility or violence against the
target group, and it may have a direct bearing on both intent and/or causation.
Analysis of the context should place the speech act within the social and political
context prevalent at the time the speech was made and disseminated.
Speaker: The speaker’s position or status in society should be considered,

specifically the individual’s or organization’s standing in the context of the
audience to whom the speech is directed.
Intent: Article 20 of the International Covenant on Civil and Political Rights

anticipates intent. Negligence and recklessness are not sufficient for an act to
be an offence under article 20 of the Covenant, as this article provides for
“advocacy” and “incitement” rather than the mere distribution or circulation of
material. In this regard, it requires the activation of a triangular relationship
between the object and subject of the speech act as well as the audience.
Content and form: The content of the speech constitutes one of the key foci of
the court’s deliberations and is a critical element of incitement. Content analysis
may include the degree to which the speech was provocative and direct, as well
as the form, style, and nature of arguments deployed in the speech, or the
balance struck between arguments deployed.
Extent of the speech act: Extent includes such elements as the reach of the
speech act, its public nature, its magnitude, and the size of its audience. Other
elements to consider include whether the speech is public, what means of
dissemination are used, for example, a single leaflet or broadcast in the
mainstream media or the Internet, the frequency, quantity, and extent of the
communications, whether the audience had the means to act on the incitement,
whether the statement (or work) is circulated in a restricted environment or
widely accessible to the general public.
15
Likelihood, including imminence: Incitement, by definition, is an inchoate

crime. The action advocated through incitement speech does not have to be
committed for said speech to amount to a crime. Nevertheless, some degree of
risk of harm must be identified. It means that the courts will have to determine
that there was a reasonable probability that the speech would succeed in inciting
actual action against the target group, recognising that such causation should
be rather direct.”
Identifying hate speech
It is sometimes tricky to distinguish between speech that is protected and that which
constitutes hate speech.
• Hate speech may be prohibited only if the prohibition meets the standards of
article 19(3), namely:12
o Legality: laws criminalising hate speech must be precise, public, and transparent.
o Legitimacy: laws should be justified to protect and respect the rights or
reputations of others or to protect national security, public order, public health or
morals.
o Necessity and proportionality: the criminalising legislation must protect a
legitimate interest and be the least restrictive means to achieve the purported aim.
• Hate speech is lawful and should be protected if it is:
o Inflammatory or offensive expression that does not meet the above thresholds.
Notably, this may include speech that is critical or that causes shock or offence.
Online hate speech
The nature of online domains, such as social media, creates conditions for the sharing and
spreading of hate speech that are relevant to considerations of how to appropriately regulate
hate speech. For example:
• Content is more easily posted online without due consideration or thought. Regulation
must distinguish between poorly considered statements posted hastily online, and an
actual threat that is part of a systemic campaign of hatred.
• Once something is online, it can be difficult (or impossible) to get it off entirely. Hate
speech posted online can persist in different formats across multiple different platforms,
which can make it difficult to police.
• Online content is frequently posted under the cover of anonymity, which presents an
additional challenge to dealing with hate speech online.
12 Article 19, ‘Hate Speech Explained: A Toolkit,’ (2015) (accessible at:

https://www.article19.org/data/files/medialibrary/38231/'Hate-Speech'-Explained---A-Toolkit-%282015-
Edition%29.pdf).
16
• The internet has transnational reach, which raises cross-jurisdictional complications in

terms of legal mechanisms for combatting hate speech.
ARTICLE 19 Hate Speech Explained: A Toolkit
ARTICLE 19 has published a toolkit on identifying and countering hate speech while
protecting the rights to freedom of expression and equality. The toolkit responds to a growing
demand for clear guidance on identifying ‘hate speech’ and for responding to the challenges
hate speech poses within a human rights framework.
It is clear that cooperation from the state can be an effective means of safeguarding human
rights. However, states are not always fulfilling their duties. Accordingly, lawyers, civil society
organisations (CSOs), individuals, and community members need to work together to
ensure that states are acting in compliance with their international human rights obligations.
This can include strategic litigation, policy reform and advocacy, such as:
• Ensuring that states are creating an enabling environment for the right to freedom of
expression. This can include ratifying international and regional human rights
instruments, adopting domestic laws to protect freedom of expression and repealing
any laws that unduly limit the right to freedom of expression.
• Ensuring that states safeguard the rights of individuals who exercise their right to
freedom of expression. This requires ensuring that states make a concerted effort to
end impunity for attacks on independent and critical voices.
• Ensuring that domestic laws guarantee equality before the law and equal protection
of the law. That includes protection against discrimination on all grounds recognised
under international human rights law.
• Ensuring that states establish or strengthen the role of independent equality
institutions or expand the mandate of national human rights institutions.
• Ensuring that states adopt a regulatory framework for diverse and pluralistic media,
which promotes pluralism and equality.
Some of these elements of online hate speech were addressed in recent cases in South Africa:
• In South African Human Rights Commission (SAHRC) v Matumba, involving the posting
of hate speech online by a person allegedly using a false account on a social media
platform, the Equality Court in South Africa considered whether a series of tweets posted
in 2020 constituted harassment in terms of the country’s law protecting equality. The
SAHRC argued that the tweets included “serious, demeaning and humiliating comments
against women, and black women in particular”. An amicus curiae brief submitted by
Media Monitoring Africa (MMA), a civil society organisation, highlighted the speed and
application of content on Twitter, as opposed to more traditional formats, and analysed
how to determine the reasonable reader in the context of social media.
17
• Another case in South Africa provided a detailed analysis of the line between “hurtful”
and “hate” speech. In Qwelane v. South African Human Rights Commission, the South
African Constitutional Court held that the prohibition of “hurtful” speech was an
unjustifiable infringement of the right to freedom of expression, but held that the hate
speech provision could be made constitutional by limiting it to expression that was
intended to be harmful or incite harm and to promote or propagate hatred.
Incidences of hate speech regulation
Unfortunately, there are numerous examples of countries attempting to pass, or successfully

passing, hate speech legislation that includes criminal penalties, particularly in Africa:
• In 2020 Ethiopia enacted the Hate Speech and Disinformation Prevention and
Suppression Proclamation which, while having seemingly well-intentioned objectives,
has been decried by civil society as a threat to freedom of expression and access to
information online.13
• In Nigeria, the National Commission for the Prohibition of Hate Speech Bill was tabled
in 2019 which would prohibit “abusive, threatening, and insulting behaviour”, and
another bill under consideration in 2022 proposes to classify hate speech as an electoral
offence that may attract a jail term of 10 years or a fine of N40m or both.
• In South Africa, a bill on the prevention of hate crimes and hate speech has been
criticised for its potential to be used to silence free speech and criticism and to stymie
difficult discussions about race, gender, and sexuality.
Cybercrime
There is no single uniform or universally accepted definition for cybercrime, and there is an
ongoing debate as to what the term entails. Some of the explanations and definitions
advanced cover “a whole slew of criminal activity” including the theft of personal information,
fraud, and the dissemination of ransomware.14 Cybercrimes can also be the online extension
of existing offline crimes such as harassment and sexual abuse, or producing, offering to make
available, or making available, and distributing racist and xenophobic material.15 For ease of
reference, cybercrimes may be categorised as follows:16
13 CIPESA, Edrine Wanyama, ‘Ethiopia’s New Hate Speech and Disinformation Law Weighs Heavily
on Social Media Users and Internet Intermediaries’ (2020) (accessible at:
https://cipesa.org/2020/07/ethiopias-new-hate-speech-and-disinformation-law-weighs-heavily-on-
social-media-users-and-internet-intermediaries/).
14 Microsoft, ‘Cybercrime and freedom of speech – a counterproductive entanglement’ (2017)
(accessible at https://www.microsoft.com/security/blog/2017/06/14/cybercrime-and-freedom-of-
speech-a-counterproductive-entanglement/).
15 See UNODC, ‘Module 2: General Types of Cyber Crime; E4J University Module Series: Cybercrime
(2019) (accessible at https://www.unodc.org/e4j/en/cybercrime/module-2/key-issues/intro.html) and

UNODC ‘Module 3: Legal Frameworks and Human Rights’ E4J University Module Series: Cybercrime
(2019) (accessible at https://www.unodc.org/e4j/en/cybercrime/module-3/key-issues/international-
human-rights-and-cybercrime-law.html).
16 Id. See further ITU ‘Understanding cybercrime: Phenomena, challenges and legal response’ (2012)
(accessible at http://www.itu.int/ITU-D/cyb/cybersecurity/docs/Cybercrime%20legislation%20EV6.pdf).
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Category Examples of crimes

Offences against the Illegal access (hacking)
confidentiality, integrity • Password breaking
and availability of • Distributed denial-of-service (DDoS) attacks
computer data and • Automated attacks and botnets
systems Illegal data acquisition (data espionage)
• Scanning for unprotected ports
• Circumventing protection measures
• Social engineering
• Phishing
Illegal interception
• Intercepting communications to record the information
exchanges
• Setting up fraudulent access points
Data interference
• Deleting, suppressing, or altering computer data
• Creation of malware and computer viruses
Content-related • Sexual exploitation material
offences • Child sexual abuse material
• Commercial sexual exploitation of children
• Racist and xenophobic speech, hate speech and
promotion of violence
• Disinformation and fake news
Copyright and • Reproduction of material
trademark-related • Exchange of copyright-protected material (songs and
offences movies)
• Certain file-sharing systems
• Domain name-related offences
Computer-related • Computer-related fraud
offences • Online auction fraud
• Advance fee fraud
• Identity theft
• Cyberstalking, cyberharassment, and cyberbullying
Cybercrime and cybersecurity are two interlinked issues in an interconnected digital

environment. Cybersecurity, or the management and prevention of cybercrime, refers to the
collection of tools, policies, security concepts, security safeguards, guidelines, risk
management approaches, actions, training, best practices, assurance, and technologies that
can be used to protect the cyber-environment and organisational and user’s assets, such as
computing devices, applications, and telecommunication systems.17
17ITU Definition of Cybersecurity, (accessible at: https://www.itu.int/en/ITU-

T/studygroups/com17/Pages/cybersecurity.aspx).
19
Overview of international instruments
Currently, there are three prominent international instruments that engage the topic of
cybercrime:18
• The 2001 Convention on Cybercrimes (Budapest Convention) is the first international

treaty that seeks to address internet and computer crimes. Its main objective is to pursue
a common criminal policy aimed at the protection of society against cybercrimes by
adopting appropriate legislation and fostering international co-operation.
• The Additional Protocol to the Convention on Cybercrimes concerns the criminalisation

of acts of a racist and xenophobic nature committed through computer systems. As an
international legal instrument, the Protocol provides guidance and plays a key role in
facilitating harmonisation across different legal regimes on the issue of specific forms of
online speech.
• The 2014 African Union Convention on Cybersecurity and Personal Data

(Malabo Convention), is a treaty dealing with cybercrime, data protection and related
issues for the African continent. As of 2022, the Malabo Convention was still undergoing
ratification, but if brought into force the Convention, among other things, encourages
states to take necessary legislative and/or regulatory measures to establish criminal
offences relating to cybercrimes. The offences include:
o Creating, downloading, disseminating, or making available in any form writings,

messages, photography, drawings or any other presentation of ideas or theories
of racist or xenophobic nature through a computer system.
o Threatening, through a computer system, to commit a criminal offence against a
person for the reason that they belong to a group distinguished by race, colour,
descent, national or ethnic origin or religion, where such membership serves as a
pretext for any of these characteristics.
o Insulting, through a computer system, persons for the reason that they belong to
a group distinguished by race, colour, descent, national or ethnic origin or religion
or political opinion if used as a pretext for any of these factors, or against a group
of persons distinguished by any of these characteristics.
Under the Malabo Convention, states are also urged to enact legislation criminalising acts
related to child pornography. Importantly, the Malabo Convention does identify acts that
warrant criminalisation, such as child pornography and racist and xenophobic acts. However,
there are some concerns when it comes to free speech in the online context. For instance, the
Malabo Convention uses vague language which may be open to abuse by states. An example
is the provision that criminalises the use of insulting language, which is problematic because
it describes a significant portion of the language used on the internet. This can lead to
subjective prosecutions and, eventually, may lead to criminal convictions for what should be
18 Global Action on Cybercrime Extended, ‘Comparative analysis of the Malabo Convention of the
African Union and the Budapest Convention on Cybercrime’ (2016) (accessible at
https://rm.coe.int/16806bf0f8).
20
protected speech. The Convention also raises concerns in that it expands the search and
seizure powers of the state.
The rise in cybercrime laws
The UNODC has found that cybercrime laws are of particular relevance to the criminalisation
of online speech because the laws that are enacted to regulate cybercrimes can result in the
restriction of freedom of expression. Access Now notes that one of the main concerns about
the plethora of laws that are currently being enacted to regulate cybercrimes is that many of
them lack clear definitions and are susceptible to being used to regulate online content and
restrict freedom of expression. This is a growing concern among human rights defenders as
many have been subjected to a wave of arrests and convictions in what is an escalating
assault on freedom of expression through cybercrime laws.
Cybercrime laws in Nigeria
While there may be legitimate aims in enacting these laws, there are serious concerns that
many of these laws are vague and overbroad and are susceptible to being used to restrict
freedom of expression. Amnesty International has reported a growing trend of arrests,
detention and torture of journalists and bloggers as well as pointed attacks on major media
houses. Journalists and bloggers are reportedly being charged with cybercrimes under
Nigeria’s Cybercrime Act, which criminalises a substantial number of online forms of
expression.
This situation may be exacerbated if the proposed Protection from Internet Falsehoods and
Manipulation Bill is passed into law. The Bill is aimed at enabling measures to be taken to
detect, control and safeguard against uncoordinated and inauthentic behaviour and other
misuses of online accounts and bots, enabling measures to be taken to enhance disclosure of
information regarding paid content directed towards a political end and to sanction offenders.
The Bill seeks to criminalise, among other things, prohibited statements of facts which include
false statements of fact and statements that are likely to be prejudicial to the country’s security,
public health, public safety, public tranquillity or finances, prejudice Nigeria’s relations with
other countries, influence the outcome of an election or referendum, incite feelings of enmity,
hatred towards a person, ill will between a group of persons, or diminish public confidence in
the performance or exercise of any duty, function or power by the government.
If this Bill is passed it could mean a further affront to freedom of expression in Nigeria, which
as it stands is under threat due to the cybercrime legislation that is already in existence.
Further, the Bill gives the State wide-ranging powers, which may be susceptible to abuse.19
19 For further commentary on trends in Africa see CIPESA, ‘Why are African Governments
Criminalising Online Speech? Because They Fear Its Power’ (2018) (accessible at
https://cipesa.org/2018/10/why-are-african-governments-criminalising-online-speech-because-they-
fear-its-power/).
21
The Government of Nigeria’s extended suspension of the operations of the social networking
service, Twitter, for close to six months up to January 2022 appear to have reignited the
government’s interest to implement the proposed Bill.
It is further worth noting that in 2020, the ECOWAS Community Court of Justice ordered
Nigeria to repeal its cybercrime legislation, which was held to violate the right to freedom of
expression.
In relation to the concerns regarding cybercrime legislation, a 2019 Report of the UNSR on
FreeEx noted:
“A surge in legislation and policies aimed at combating cybercrime has also

opened the door to punishing and surveilling activists and protesters in many
countries around the world. While the role that technology can play in promoting
terrorism, inciting violence and manipulating elections is a genuine and serious
global concern, such threats are often used as a pretext to push back against
the new digital civil society.”
UN Resolution on Countering the Use of Information and Communications

Technologies for Criminal Purposes
In July 2019, the United Nations General Assembly presented a Draft Resolution on countering
the use of information and communications technologies for criminal purposes.
CSOs were highly critical of the resolution, calling for delegations to vote against it. In an Open
letter to UN General Assembly, the following concerns were raised:
• The “use of information and communications technologies for criminal purposes” is not
defined in the resolution, which is not just a concern from an accuracy perspective; but
also opens the door to criminalising ordinary online behaviour that is protected.
• While legislation aimed at addressing cybercrime can be necessary and reinforce
democratic institutions, when misused, cybercrime laws can create a chilling effect.
• It goes far beyond what the Budapest Convention allows for regarding cross-border access
to data, including by limiting the ability of a signatory state to refuse to provide access to
requested data.
• Building on and improving existing instruments is more desirable and practical than
diverting already scarce resources into the pursuit of a new international framework, which
is likely to stretch over many years and unlikely to result in consensus.
• The establishment of an ad hoc intergovernmental committee of experts to address the
issue of cybercrime would exclude key stakeholders who bring valuable expertise and
perspectives.
Despite these concerns, the resolution was adopted and published in January 2020. Through
the resolution, an open-ended ad hoc intergovernmental committee of experts, representative
22
of all regions, will be established to elaborate a comprehensive international convention on

countering the use of ICTs for criminal purposes, taking into full consideration existing
international instruments and efforts at the national, regional, and international levels on
combating the use of ICTs for criminal purposes.
Lawyers and activists should monitor further developments in relation to this and, where
possible, engage with relevant stakeholders in order to positively influence future
developments and decisions.
Disinformation and ‘fake news’
Disinformation includes statements which are known or reasonably should be known to be

false that seek to mislead the public, and, in turn, interfere and inhibit the ability of the public
to seek, receive, and impart information.20 In 2018, the High-Level Expert Group on Fake
News and Online Disinformation defined disinformation to mean—
“all forms of false, inaccurate, or misleading information designed, presented and

promoted to intentionally cause public harm or for profit. It does not cover issues
arising from the creation and dissemination online of illegal content. Nor does it
cover other forms of deliberate but not misleading distortions of facts, such a satire
and parody.”
Disinformation that is designed to look like news content is sometimes popularly referred to
as “fake news.” The High-Level Expert Group noted two reasons for avoiding the use of this
term:
• The term is inadequate to capture the complex problem of disinformation, which involves
content that blends fabricated information with facts.
• The term is misleading as it has been appropriated by some politicians and their
supporters to dismiss coverage that they find disagreeable and has thus become a
weapon with which powerful actors can interfere in the circulation of information and
attack and undermine independent news media.
Concerted disinformation campaigns by foreign state and non-state actors to interfere in the
2016 US presidential elections brought unprecedented light on the issue of “fake news” and
the ease with which disinformation can be disseminated online.21 The COVID-19 pandemic
also highlighted the capacity for the rapid spread of disinformation, which undermined efforts
to address the disease and roll-out treatments and vaccines.
In response to this growing trend of disinformation, a number of states have enacted legislation
criminalising the online publication of false statements. Such responses continue to increase
in speed and magnitude and to cause demonstrable and significant public harm. The 2017
20 Access Now, Civil Liberties Union for Europe and European Digital Rights ‘Informing the
disinformation debate’ (2018) (accessible at https://dq4n3btxmr8c9.cloudfront.net/files/2r7-
0S/online_disinformation.pdf).
21 Vox, ‘4 main takeaways from new reports on Russia’s 2016 election interference’ (2019)
(accessible at: https://www.vox.com/world/2018/12/17/18144523/russia-senate-report-african-

american-ira-clinton-instagram)
23
Joint Declaration on Fake News, Disinformation and Propaganda by the UN Special

Rapporteur on Freedom of opinion and expression together with his counterparts from the
Organization for Security and Co-operation in Europe (OSCE), the Organization of American
States (OAS), and the African Commission on Human and Peoples’ Rights (ACHPR), noted
that countering these issues poses complex challenges that could result in censorship and the
suppression of critical thinking.
Addressing fake news
Various international bodies, states and organisations have grappled with different responses
to the complexities of disinformation. However, many countries have responded with harsh
legislation that does not strike an appropriate balance between addressing disinformation and
protecting the right to freedom of expression. The advent of the COVID-19 pandemic and
associated disinformation has further accelerated this trend. Some examples include:
• Malaysia: In 2018, the Malaysian government enacted the Anti-Fake News Act, which
attaches criminal liability to persons who knowingly create, offer, publish, print,
distribute, circulate, or disseminate fake news. The Act defined “fake news” as including
“any news, information, data and reports, which is or are wholly or partly false, whether
in the form of features, visuals or audio recordings or in any other form capable of
suggesting words or ideas.”22 However, the existence of the Act was short-lived. It was
repealed by the Anti-Fake News (Repeal) Act 825 of 2020, with government citing its
commitment to abolish draconian laws and protect media freedom. However, in March
2021, the government issued the Emergency (Essential Powers) (No. 2) Ordinance
2021 which criminalises the dissemination of fake news related to COVID-19 and
repeated many of the problematic provisions of the Anti-Fake News Act.
• Cameroon: The Penal Code in Cameroon criminalises the sending out or propagation
of false information. Section 113 imposes a penalty of imprisonment between three
months to three years and a fine between CFAF 100 000 (approximately USD172) to
CFAF 2 000 000 (approximately USD3400) for persons found guilty of this offence. The
Committee to Protect Journalists (CPJ) has noted with concern the arrest and detention
of journalists under this provision, in particular, a journalist who was sent to
maximum-security prison on charges of defamation and spreading false news.
• Russia: In 2019, the State Duma (the Russian Federal Assembly) passed legislation on
Information, Information Technologies and Protection of Information, and a Code of
Administrative Offenses both aimed at countering “fake news”. ARTICLE 19 explains
that these amended laws allow authorities in Russia to block websites that they consider
to be publishing disinformation. Websites are also liable for insulting Russian authorities.
The Moscow Times reported that “online news outlets and users that spread “fake news”
will face fines of up to 1.5 million Rubles (USD20 000) for repeat offences. Insulting state
symbols and the authorities, including Vladimir Putin, will carry a fine of up to 300 000
Rubles (USD4 000) and 15 days in jail for repeat offences.”
22The Law Library of Congress, ‘Initiatives to Counter Fake News in Selected Countries’ (2019)
(accessible at https://www.loc.gov/law/help/fake-news/counter-fake-news.pdf).
24
• Kenya: Kenya’s Computer Misuse and Cybercrime Act criminalises the ‘publication of
false information in print, broadcast, data or over a computer system’ in Articles 22 and
23. Despite legal challenges to various provisions that were alleged to stifle freedom of
expression online, the Act was upheld as constitutional and came into effect in 2020.
• COVID-19 false news laws: the COVID-19 pandemic sparked a raft of oppressive false
news laws across the world. The Disinformation Tracker, a collaborative civil society
initiative, has documented the various responses, including laws criminalising false
publications, initiated across the continent.
The criminalisation of the dissemination of fake news is likely to increase and may cause
significant violence to freedom of expression. Such developments should be closely monitored
and challenged where necessary. Fortunately, criminalisation is not the only option in
addressing the rise of disinformation. Media and information literacy campaigns can effectively
counter disinformation but providing a flood of accurate, reliable information instead and
immunising audiences against false information before they are exposed to it. International
bodies, states and CSOs are continually presenting new and innovative ways to address
disinformation. Some notable contributions from international bodies include:
• UNESCO: UNESCO has developed the Journalism, fake news & disinformation:
Handbook for journalism education and training. The handbook shares international
good practices and serves as an internationally-relevant model curriculum, open to
adoption or adaptation, which responds to the emerging global problem of disinformation
that confronts societies in general, and journalism in particular.
• European Union: In 2018, the European Union published its Code of Practice on
Disinformation. The purpose of the Code is to identify the actions that signatories could
put in place in order to address the challenges related to disinformation. The Code
discusses the need for safeguards against disinformation, implementation of reasonable
policies, effective measures to close discernible fake accounts; and the improvement of
the scrutiny of advertisement placements. The Code identifies best practices that
signatories – such as Facebook, Google, Twitter, and Mozilla – should apply when
implementing the Code’s commitments.
• Viral Facts Africa: In response to the flood of COVID-19 mis- and disinformation on
social media, the World Health Organisation (WHO) launched the Viral Facts Africa
initiative, a network of fourteen fact-checking organisations and public health bodies that
undertook health fact checks, explainers, myth busters and misinformation literacy
messages optimised for sharing on Facebook, Twitter and Instagram. The initiative aims
to rapidly debunk myths where they occur and provide viral, credible information.
At a state level, there have also been promising developments. In 2019, the US Library of
Congress produced a report on Initiatives to Counter Fake News in Selected Countries. Some
positive initiatives include:
25
• Argentina: The Commission for the Verification of Fake News was established. The
Commission is envisaged to form part of the National Election Chamber, to assist with
overcoming issues of disinformation during elections.
• Sweden: Bamse the Bear, a popular cartoon character in Sweden, has adopted a new
role in teaching children about the dangers of disinformation by illustrating what happens
to the bear’s super-strength when false rumours are circulated about him.
• Kenya: The United States Embassy in Kenya started a media literacy campaign known
as “YALI Checks: Stop.Reflect.Verify” to counter the spread of false information in
Kenya. The campaign relies on an email series, an online quiz, blog posts, online chats,
public outreach, educational videos, and an online pledge to engage with the Kenya
chapter of the Young African Leaders Initiative (YALI) about disinformation.
• Finland: Finland has been lauded for winning the war on disinformation due to its
initiatives aimed at teaching residents, students, journalists and politicians how to
counter false information. The initiatives include courses at community colleges and the
introduction of lessons in schools about disinformation.
• Canada: In January 2019, the Canadian government announced a multi-pronged effort

to combat misinformation ahead of elections in the fall, comprised of four prongs. First,
it created a “Critical Election Incident Public Protocol” to monitor and notify other
agencies and the public about disinformation attempts, led by non-political officials. The
government also called on social media platforms to do more to combat disinformation
ahead of the election, in tandem with seeking to pass legislation to compel tech
companies to be more transparent about their anti-disinformation and advertising
policies. Third, Canada announced it was giving $7 million to projects aimed at
increasing public awareness of misinformation online, and finally, the country launched
a digital charter that set out principles for protecting freedom of expression while
defending against online threats and disinformation.
Suggested standards for addressing disinformation
In the Joint Declaration on Freedom of Expression and ‘Fake News’, Disinformation and
Propaganda, the following standards are suggested:
• 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, and should be
abolished.
• 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.
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• State actors should not make, sponsor, encourage or further disseminate statements
that they know or reasonably should know to be false (disinformation) or which
demonstrate a reckless disregard for verifiable information (propaganda).
• 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.
In line with these standards, the ACHPR’s 2019 Declaration of Principles on Freedom of
Expression and Access to Information in Africa provides under Principle 22 that States should
repeal all laws that criminalise the publication of false news.
Determining limitations on freedom of expression
Global Partners Digital, in an attempt to determine how to tackle disinformation in a way that
respects human rights, proposes an information-gathering approach to determine if
disinformation amounts to a justifiable limitation of freedom of expression. Some of the
suggested questions include:
• Is the basis for any restrictions on what information individuals can search for, receive,
or impart set out in law?
• Is there clarity over the precise scope of the law so that individuals will know what is
and is not restricted?
• Is speech restricted only where it is in pursuance of a legitimate aim?
• Are there exceptions or defences where the individual reasonably believed the
information to be true?
• Are determinations made by an independent and impartial judicial authority?
• Are responses or sanctions proportionate?
• Is disinformation clearly defined?
• Are intermediaries liable for third-party content?
•
Fake news in the courts
In Africa, fake news laws have been challenged in the courts both domestically and at the
regional level. In the case of Chipenzi v The People (2014), the High Court of Zambia found
that a provision of Zambia’s Penal Code that prohibited the publication of false information
likely to cause public fear violated the Constitution as it did not amount to a reasonable
justification for limiting the freedom of expression.
the Court of Justice of the Economic Community of West African States (ECOWAS Court)
and the East African Court of Justice (EACJ) have both delivered landmark rulings on cases
relating to the criminalisation of fake news.
27
In 2018, the ECOWAS Court decided the Federation of African Journalists and Others v The
Republic of The Gambia matter, in which it considered offences of sedition, false news and
criminal defamation in The Gambia’s Criminal Code. Several journalists were arrested on
charges of spreading false news. They argued that their rights to freedom of expression had
been violated and sought a declaration from the Court that certain provisions of The Gambia’s
Criminal Code were inconsistent with regional and international law. The ECOWAS Court
found that the criminal laws of the Gambia imposed criminal sanctions that are
disproportionate and not necessary in a democratic society where freedom of speech is a
guaranteed right and ordered that the legislation be reviewed. The Criminal Code was found
to be broad and capable of casting an:
“[E]xcessive burden upon the applicants in particular and all those who would
exercise their right of free speech and violates the enshrined rights to freedom of
speech and expression under Article 9 of the African Charter, Article 19 of the
ICCPR and Article 19 of UDHR”.
More recent developments in respect of the criminalisation of fake news came from the EACJ
in the matter between the Media Council of Tanzania and Others v Attorney-General of the
United Republic of Tanzania. In this case, the applicants challenged various provisions of the
Tanzanian Media Services Act on the basis that “the Act in its current form is an unjustified
restriction on the freedom of expression which is a cornerstone of the principles of democracy,
the rule of law, accountability, transparency and good governance which [Tanzania] has
committed to abide by, through the Treaty.” The applicants argued that it violated freedom of
expression by restricting the types of news or content without reasonable justification,
criminalising the publication of false news and rumours, criminalising seditious statements,
and vesting the Minister with absolute power to prohibit the import of publications or to sanction
media content. The respondent argued that all the provisions are just and did not violate the
right to freedom of expression and associated rights.
The EACJ held that although the sections were set out in law, the contents of these sections
were vague, unclear, and imprecise. It noted that the use of the word “undermine” in the
impugned provision, which formed the basis of the offence, was too vague to provide
assurance to a journalist or other person who sought to regulate their conduct within the law.
The EACJ further noted that the words “impede”, “hate speech”, “unwanted invasion”, “infringe
lawful commercial interests”, “hinder or cause substantial harm”, “significantly undermines”
and “damage the information holder’s position” are too broad or vague.
It further stated that it was persuaded by the applicants’ submissions that section 52(1) of the
Act failed the test of clarity and certainty. In this regard, it noted that definitions of sedition
hinged on the possible and potential subjective reactions of audiences to whom the publication
was made. This makes it impossible for a journalist or other individual to predict and thus plan
their actions. In conclusion, the EACJ found in favour of the applicants and declared that,
among other things, all the challenged provisions were in violation of articles 6(d) and 7(2) of
the Treaty for the establishment of the East African Court of Justice (EACJ Treaty) and
directed the Republic of Tanzania to take such measures as are necessary to bring the Media
Services Act in compliance with the EACJ Treaty.
28
In an interesting case that addressed disinformation on social media, the High Court in South
Africa in 2019 awarded damages to a public official who had been subject to a defamatory
statement made by an opposition political party accusing him of nepotism and corruption. In
the case of Manuel v Economic Freedom Fighters and Others, the court found that the political
party had failed to prove the statement was true and taken no steps to verify its truthfulness,
had published the tweet unreasonably, and had acted “with reckless indifference as to whether
it was true or false”. Most notably, the court held that the reasonable publication defence is
not only available to the media:
“Because of social media platforms like Twitter, Facebook and others, ordinary
members of society now have publishing capacities capable of reaching beyond
that which the print and broadcast media can“.
On appeal, the damages award was subsequently overturned while the finding of defamation
was upheld.
These landmark judgments provide guidance on the appropriate balance between legislating
disinformation and protecting freedom of expression, and it is hoped they will have a far-
reaching impact on other jurisdictions across the African region in ensuring that any responses
to disinformation are based on international freedom of expression standards.
Defamation
Defamation is an important legal remedy for people whose reputation and dignity are harmed
by the statements or actions of others. However, it is also frequently abused to unjustly stifle
dissent. In particular, criminalising defamation is generally considered, under international
human rights law, to be disproportionate and an unjustifiable infringement on the right to
freedom of expression. The spread of the internet, and particularly social media platforms, has
made it easier than ever to publish content to a wide audience, resulting in a rise in defamation
being used against critical statements published online, and in speech that should be
protected being criminalised under criminal defamation laws.
Overview of international instruments
The foundation for defamation in international law is article 17 of the ICCPR, which provides
for protection against unlawful attacks on a person’s honour and reputation. Article 19(3) of
the ICCPR also refers to the rights and reputation of others as a legitimate ground for limiting
the right to freedom of expression.23 Reputation is therefore the underlying basis in any claim
of defamation, whether slander or libel.24
23 ICCPR: International Covenant on Civil and Political Rights (1976) (accessible at

https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx).
24 For a fuller discussion on the law on defamation, see the training manual published by Media
Defence on the principles of freedom of expression under international law: Richard Carver, ‘Training
manual on international and comparative media and freedom of expression law’, Media Defence at pp
48-64 (2018) (accessible at:
https://www.mediadefence.org/sites/default/files/resources/files/MLDI.FoEManual.Version1.1.pdf).
See also above no. 6 for a definition of libel and slander.
29
It is also noteworthy that in 2010 the ACHPR issued a Resolution calling on states to repeal
criminal defamation laws or insult laws.25
Defamation in the courts
In recent years, many countries around the world have taken steps to decriminalise
defamation in line with human rights standards. The UN Human Rights Council (UNHRC)
General Comment No. 34 provides that: “States Parties should consider the decriminalisation
of defamation and, in any case, the application of the criminal law should only be
countenanced in the most serious of cases and imprisonment is never an appropriate
penalty”.26 Principle 22 of the Declaration of Principles on Freedom of Expression and Access
to Information in Africa calls on States to amend criminal laws on defamation and libel in favour
of civil sanctions, and that the imposition of custodial sentences for defamation is a violation
of the right to freedom of expression.
Several recent judgments across Africa demonstrate this trend, including the 2013 matter of
Konaté v Burkina Faso in the African Court on Human and Peoples’ Rights, Misa-Zimbabwe
et al v Minister of Justice et al in the Zimbabwe Constitutional Court, Peta v Minister of Law,
Constitutional Affairs and Human Rights in the Constitutional Court of Lesotho, and the 2018
case of Federation of African Journalists and Others v The Gambia in the ECOWAS Court.
Most recently, the ACHPR ruled that Rwanda’s criminal defamation laws violated freedom of
expression and impeded development in democracies. It noted that such laws “constitute a
serious interference with freedom of expression, impeding the public’s right to access
information, and the role of the media as a watchdog, preventing journalists and media
practitioners from practising their profession in good faith, without fear of censorship”.
Despite this, some countries, including South Africa and Zambia retain criminal defamation
laws, underscoring the need for advocacy and litigation to address the situation.
The growth of Strategic Lawsuits Against Public Participation (SLAPP) suits by corporate
actors using defamation laws to silence or intimidate is another concerning contemporary
development that needs to be challenged. The ECtHR referred for the first time to the notion
of a SLAPP suit in OOO Memo v Russia (2022) which involved a civil defamation suit brought
by a Russian regional state body against a media company. In Koko v Tanton (2021), the
Johannesburg High Court in South Africa held that a defamation case brought by a former
executive of a state entity constituted a SLAPP suit.
Conclusion
The criminalisation of online speech presents an affront to the exercise of the right to freedom
of expression online. However, as illustrated above, there are competing interests that need
to be considered. With the rise of nefarious activities and feeble excuses from governments,
it is important, now more than ever, that activists, lawyers, and individuals ensure that freedom
25 ACHPR/Res.169(XLVIII)10, ‘Resolution on Repealing Criminal Defamation Laws in Africa,’ (2010)

(accessible at: https://www.achpr.org/sessions/resolutions?id=343).
26 UN Human Rights Council, ‘General Comment No. 34 at article 47 (2011) (accessible at
https://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf).
30
of expression is protected, and only limited in terms of the clear prescripts of international
human rights law.
31

Module 3 Criminalisation of Online Speech Dec 2022

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Module 3 Criminalisation of Online Speech Dec 2022

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Module 3

Published by Media Legal Defence Initiative: www.mediadefence.org

This work is licenced under the Creative Commons Attribution-NonCommercial 4.0

The objectives of this module are:

• To provide an overview of the criminalisation of online speech.

• To understand the impact of criminalisation on freedom of expression and identify

Overview of Criminalising Online Speech

Walking the tightrope: criminalising online speech

It is arguable that states’ moves to impose restrictive measures on harmful speech,

1ARTICLE 19, ‘Hate Speech’ Explained: Toolkit (2015) (accessible at:

Applicable International Human Rights Standards

Overview of the right to freedom of expression and associated rights

“1. Any propaganda for war shall be prohibited by law.

Freedom of expression as an enabling right

• General Comment 34 acknowledged that freedom of expression embraces the right

In the African context, article 9 of the African Charter provides that:

“1. Every individual shall have the right to receive information.

African regional case law: limiting freedom of expression

• In Constitutional Rights Project v Nigeria, the African Commission on Human and

In 2002, the Declaration of Principles on Freedom of Expression in Africa was adopted to

a. prevailing social and political context;

Other implicated rights

“[F]reedom of expression is a legal right of paramount value for democratic

All Forms of Racial Discrimination presents challenges to both sets of norms,

Restricting Freedom of Speech Online

To determine whether a limitation of the right to freedom of expression is justifiable, a

• Dissemination of ideas based on racial superiority or hatred.

Three-stage test for the justifiable criminalisation of online speech

“cannot be invoked as a reason for imposing limitations to prevent merely local or

The Johannesburg Principles on National Security, Freedom of Expression and Access to

• The expression is intended to incite imminent violence.

Case note: Başkaya and Okçuoğlu v Turkey

• The requirement of “necessary” implies the existence of a “pressing social need”.

National security can indeed be a legitimate aim; however, a restriction on freedom of

Case note: Good v Republic of Botswana

Mr Good, a political studies professor at the University of Botswana, was declared an

In response to the allegation regarding the restriction of Mr Good’s right to freedom of

Ultimately, the ACHPR found that:

“The action of the [r]espondent [s]tate was unnecessary, disproportionate and

Case note: SERAP v the Federal Republic of Nigeria

“States should refrain from applying restrictions relating to ‘terrorism’ in an unduly

At a minimum, if there is to be a limitation of access to the internet or to content online on the

8 UN Human Rights Council, ‘General Comment no. 34 at para 46 (2011) (accessible at

Ors v. The Togolese Republic.

Public order offences

UNESCO Training Modules on Public Order and Freedom of Expression

• Co-regulation of the media.

The reconciliation of values

A 2019 Report by the UNSR on FreeEx found that:

Overview of international instruments dealing with hate speech

Rabat Plan of Action: Six-part threshold test for expressions considered

“Context: Context is of great importance when assessing whether particular

Speaker: The speaker’s position or status in society should be considered,

Intent: Article 20 of the International Covenant on Civil and Political Rights

Likelihood, including imminence: Incitement, by definition, is an inchoate

Identifying hate speech

• Hate speech is lawful and should be protected if it is:

Online hate speech

12 Article 19, ‘Hate Speech Explained: A Toolkit,’ (2015) (accessible at:

• The internet has transnational reach, which raises cross-jurisdictional complications in

ARTICLE 19 Hate Speech Explained: A Toolkit

Incidences of hate speech regulation

Unfortunately, there are numerous examples of countries attempting to pass, or successfully

(2019) (accessible at https://www.unodc.org/e4j/en/cybercrime/module-2/key-issues/intro.html) and

Category Examples of crimes

Cybercrime and cybersecurity are two interlinked issues in an interconnected digital

17ITU Definition of Cybersecurity, (accessible at: https://www.itu.int/en/ITU-

Overview of international instruments

• The 2001 Convention on Cybercrimes (Budapest Convention) is the first international

• The Additional Protocol to the Convention on Cybercrimes concerns the criminalisation

• The 2014 African Union Convention on Cybersecurity and Personal Data

o Creating, downloading, disseminating, or making available in any form writings,

The rise in cybercrime laws

Cybercrime laws in Nigeria

“A surge in legislation and policies aimed at combating cybercrime has also

UN Resolution on Countering the Use of Information and Communications