Two Laws Derailing Free Speech in Ghana

SECTION 76, ELECTRONIC COMMUNICATIONS ACT, 2008 (ACT 775):

(1) A person who by means of electronic communications service, knowingly sends a communication which is false or misleading and likely to prejudice the efficiency of life saving service or to endanger the safety of any person, … commits an offence and is liable on summary conviction to a fine of not more than [thirty six thousand Ghana Cedis] or to a term of imprisonment of not more than five years or both.

(2) A person is taken to know that a communication is false or misleading if that person did not take reasonable steps to find out whether the communication was false, misleading, reckless or fraudulent.

ARTICLE 19 calls on Ghana Government to amend provisions of the Criminal Code and the Electronic Communication Act 2008 that allow for the criminalisation of ‘false news’ as they fail to comply with international freedom of expression standards.

READ ALSO: The 1992 Constitution of the Republic of Ghana

The right to freedom of expression is protected by Article 19 of the Universal Declaration of Human Rights and given legal force through Article 19 of the International Covenant on Civil and Political Rights (the ICCPR).

Moreover, freedom of expression is guaranteed in the African Charter on Human and Peoples’ Rights (ACHPR) and in the Declaration of Principles on Freedom of Expression in Africa (African Declaration) as well as in Ghana’s Constitution (Chapter 5, Section 21).

‘False information,’ ‘disinformation,’ or ‘misinformation’ are all terms that are not defined under international human rights law.

Protecting persons from ‘false information’ is not, as such, a legitimate aim for justifying restrictions on the right to freedom of expression under Article 19(3) of the ICCPR.

The stages of law making in Ghana

As four special mandates on freedom of expression cautioned in their 2017 Joint Declaration, the label of ‘fake news’ is increasingly being used by persons in positions of power to denigrate and intimidate the media and independent voices, increasing the risk of such persons to threats of violence, and undermining public trust in the media.

An important point of principle remains that “the human right to impart information is not limited to ‘correct statements,’ [and] that the right also protects information and ideas that may shock, offend or disturb.”

The four special mandates made clear that “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.”

THE CRIMINAL CODE PROHIBITS

• False reports injuring the reputation of the state

Section 185 prohibits as second-degree felony communicating “by word of mouth or in writing or by any other means, any false statement or report which is likely to injure the credit or reputation of Ghana or the Government and which [s/he] knows or has reason to believe is false.”

Not knowing or not having reason to believe that the statement or report was false is no defence to a charge unless the defendant proves that, before communicating the statement or report, s/he took “reasonable measures to verify the accuracy of the statement or report”. Ghanaian citizens may be tried and punished for this offence if committed “in or outside Ghana”.

• Publication of false news with intent to cause fear and alarm to the public

Section 208 prohibits as a misdemeanour publishing or reproducing “any statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace knowing or having reason to believe that the statement, rumour or report is false.”

Again, the lack of knowledge of the falsity of the information is not a defence unless the person took “reasonable measures to verify the accuracy of the statement, rumour or report”.

THE ELECTRONIC COMMUNICATIONS ACT, 2008 PROHIBITS INTER ALIA GIVING FALSE INFORMATION IN SECTION 74 of THE ACT.

Under these provisions, those who “knowingly give false or misleading information” to the National Communications Authority can face “a fine of not more than one thousand penalty units or to a term of imprisonment of not more than three years or to both”.

ARTICLE 19 finds that these provisions do not meet international freedom of expression standards for several reasons.

First, the provisions Section 185 of the Criminal Code that protect the ‘reputation’ of the State is an especially problematic restriction on freedom of expression.

Under international human rights standards, the State as an abstract entity does not have any financial or emotional interest to defend; it is even questionable whether it has a ‘reputation’ of any sort which might be undermined by a false accusation of fact.

Such provisions can prevent an open debate about the functioning of the State and prevent the expression of unpopular opinions, which are protected by the right to freedom of expression.

Moreover, state institutions have ample non-legal means available to respond to criticism, for example through a public counter-statement.

Second, the prohibitions of false information (in provisions of Section 208 of the Criminal Code and the respective provisions of the Electronic Communications Act) are extremely broad and overly ambiguous, and therefore not ‘provided for by law’ under Article 19(3) of the ICCPR.

While Section 74 of the Electronic Communications Act requires that the false information be shared “knowingly,” it does require any likelihood of that harm occurring as a direct consequence of the accused’s act.

ARTICLE 19 notes that in a democratic society, ‘knowingly’ creating or sharing ‘false’ information may be in the public interest.

For example, artists may engage in satire and parody, knowingly using imitation and fabrication to convey their opinions and ideas, or a blogger on social media may re-post a politician’s ‘false’ statement in the context of sharing to their audience the fact that they were made.

Strong differences of opinion or anger over political wrongdoing, which may connect to feelings of dislike towards a person, for example, may be framed as evidence of a person acting ‘knowingly’.

Under these provisions, people could be penalised even if they shared certain information without any malign intent.

SOURCE: Coverghana.com.gh