Expert Opinion: Fake News, Misinformation and the Coronavirus Crisis

The coronavirus crisis has presented an unprecedented dilemma; the balance between freedom of expression, freedom of the press and ensuring the public are adequately informed on what measures need to be put in place to deal with the crisis. Unlike casual political, social or economic banter, incorrect or blatant false information on the coronavirus could lead to catastrophic consequences especially at an age where information from the State is treated with suspicion. Anyone who adopts the wrong coronavirus management protocols is at a risk to themselves and anyone they interact with.

It is a task to define what constitutes ‘fake news and misinformation’. There is hardly an objective analysis of the two concepts. This is made worse by the reach social media has; one post has the potential of going viral within minutes and there are tonnes of views on each and every subject. If the Kenyan situation is anything to go by, anyone who contradicts what the Government says sees their post go viral on social media. Our collective scepticism is on high alert, but we are not in a position to objectively identify what may be fake news or misinformation.

Freedom of expression and free press exist on the premise that a democratic society ought to allow a free market of ideas. This free market enables society to sift through diverse views, opinions and facts; in the long run, ideally, the ‘truth’ is meant to triumph in such an environment. Unfortunately, a public health emergency is not like a political or social debate where facts are juxtaposed against each other in the hope that society will sift through the facts and consume what is true. The public must be presented with ‘facts’ and ‘truth’ from credible sources and act upon such with haste. The question on what or who constitutes a credible source is a dicey one.

With the above in mind, Article 33(2)(d)(i) states that the right to freedom of expression does not extend to advocacy of hatred that constitute incitement to cause harm. Does fake news or misinformation on the coronavirus extend to advocacy of hatred that constitute incitement to cause harm?

A comparative study indicates that the Governments of Hong Kong, Taiwan and Singapore continuously presented the public with information on how to act amid the coronavirus crisis. While I couldn’t find any information on whether there was a proliferation of fake news and misinformation, the three have been touted as having successfully contained the crisis. Also, Singapore has stringent laws on fake news and misinformation in the form of the Protection from Online Falsehoods and Manipulation Act, 2019.

Granted, the Kenya Government has put in place initiatives to constantly inform the public on what measures have been put in place to deal with crisis and what individuals can do to protect themselves and those around them. The periodic updates and reminders are all over traditional media and social media. Notwithstanding, social media accounts continue to post what may be considered as fake news or misinformation.

Fake news and misinformation are covered by Section 23 of the Computer Misuse and Cybercrimes Act, 2018 which provides –

A person who knowingly publishes information that is false in print, broadcast, data or over a computer system, that is calculated or results in panic, chaos, or violence among citizens of the Republic, or which is likely to discredit the reputation of a person commits an offence and shall on conviction, be liable to a fine not exceeding five million shillings or to imprisonment for a term not exceeding ten years, or to both.

The above provision is currently being used to arrest and charge individuals who post or spread fake news and misinformation on the coronavirus crisis. The challenge with the provision is that it is poorly drafted and, in my view, may not result in any convictions. The provision is vague on various aspects, one, how does one prove motive to create panic or chaos or violence? Two, how does one measure panic? Is it panic by one person or more than one person? Who determines that another person has panicked?

While Computer Misuse and Cybercrimes Act, 2018 may be used as a deterrent to future fake news posts, it hardly meets the threshold of a penal provision that constitutionally provides for the limitation of fundamental rights and freedoms. Compare Section 23 cited above with Section 7 of the Singapore Online Falsehoods and Manipulation Act 2019 which states –

(1)  A person must not do any act in or outside Singapore in order to communicate in Singapore a statement knowing or having reason to believe that — (a) it is a false statement of fact; and (b) the communication of the statement in Singapore is likely to —(i) be prejudicial to the security of Singapore or any part of Singapore; or (ii) be prejudicial to public health, public safety, public tranquillity or public finances;

The Singapore provision mention public health and public safety which may arguably indicate an objective analysis on what may constitute fake news. The jury is out there on how the Kenyan State will enforce the Computer Misuse and Cybercrimes Act, but one thing is for sure, the law will be used to clamp down on fake news and misinformation during this moment of crisis. Perhaps, once charged, the accused persons will seek an interpretation of Article 33 of the Constitution vis a vis the Cybercrimes Act.

As we wait to analyse the legal processes, it is imperative that we deal with the coronavirus crisis together. Only our collective actions can manage and contain the crisis. Hence, let us –

NOT post, share or spread any fake news or misinformation in relation to the coronavirus and hope that the Government will offer verifiable, credible and real time information to the public.

By Mugambi Laibuta

Mugambi is an Advocate of the High Court of Kenya, a trained Mediator and a legislative and policy analyst. He currently teaches Legal Writing and Legislative Drafting at the Kenya School of Law.