Introduction

In the wake of a pandemic, credible and accurate information serves as a lifeline, helping to ‘flatten the curve’ as some have termed attempts to stem the spread of disease. In recent months, the world has been combating the spread of coronavirus disease 2019 (COVID-19), caused by the latest strand of the long existing coronavirus. At the same time, the World Health Organisation (WHO) has been fighting what it has termed an  ‘infodemic’ i.e., ‘an overabundance of information – some accurate and some not – that makes it hard for people to find trustworthy sources and reliable guidance when they need it.’ 

 On 11 March 2020, the World Health Organization (WHO) declared COVID-19 a pandemic. The very next day, Kenya reported its first case.  Since then, social media has been a flurry of information (both accurate and wildly inaccurate) regarding the spread of the disease in Kenya. Initially, there was little communication from the Ministry of Health and the Government Spokesman about the disease, and Kenya’s plans to mitigate its spread. Meanwhile, Kenyans took to social media using hashtags such as #coronaviruske to discuss the matter and many speculations were made as to the potential outcome of the spread of COVID-19. 

Noting the potential for panic inducement, the government was quick to warn those creating and/or sharing false information of the criminal charges they may face if caught. Commendably, the Ministry of Health has since been updating the public through periodic press briefings. Government officials have continuously reiterated the executive’s stance on the spreading of misinformation and already,, three arrests have been made.

In 2018, Kenya passed the Computer Misuse and Cybercrimes Act. It came into full effect in March 2020 following an unsuccessful challenge of its constitutionality in the High Court by the Bloggers Association of Kenya (BAKE). Central to the issues before the court was whether certain offences introduced by the Act were an undue limitation of fundamental freedoms, in particular, the freedom of expression. One of the impugned offences was the intentional publication of  false, misleading or fictitious data, popularly known as ‘fake news’. It is this provision that the government is relying on as it attempts to control the spread of fake news regarding the coronavirus. 

This blog looks at the legal definition of fake news in Kenya and how it is likely to be applied in the wake of the global pandemic. The discussion then turns to the contentious aspects of this definition, and what regulators should be mindful of  when applying it. 

Corona, misinformation and the State

 Governments do not have many tools at their disposal to combat misinformation.  About 50 countries have begun taking legal action against online misinformation, laws created  to combat the effect of fake news on electioneering processes. (For more on this, see CIPIT’s report on information controls during elections.) Kenya enacted the  Computer Misuse and Cybercrimes Act (‘the Act’) after the 2017 elections. The Act criminalises false publication and the publication of false information. 

Section 22 provides that ‘a person who intentionally publishes false, misleading, or fictitious data, or misinforms with the intent that the data shall be considered or acted upon as authentic, with or without financial gain, commits an offence…’ According to this Section, the mens rea (criminal mind) required is the intent that the recipients of the information consume it as though it is genuine. The penalty? Either a  fine of up to KES 5 million or a maximum of 2 years imprisonment, or both.

 Owing to its limitation on the freedom of expression enshrined in Article 33, this section provides that it applies to false, misleading or fictitious information that: is likely to propagate war/incite persons to violence, constitutes hate speech, advocates hatred that constitutes ethnic incitement or is based on any ground of discrimination listed in Article 27(4) or negatively affects the rights or reputations of others. As a result of this qualification, this provision is bound to be applied in very specific circumstances. For example, messages spreading false information about Chinese nationals in Kenya can be considered discriminatory. Unfortunately, we are yet to see section 22 in action. 

Section 23 on the other hand, is much wider, attracts a higher penalty, and may be invoked by the government in their regulation of misinformation during this pandemic. It  creates the offence of knowingly publishing 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…’ The corresponding penalty  is either a fine of not more than KES 5 million or a maximum of 10 years imprisonment, or both. Despite the fact that this extends the limitations provided for in Article 33, the Court in BAKE v The Attorney General & 2 Others opined that this additional limitation is legitimate, proportionate and justifiable as it protects public interest, making it justifiable to impose a criminal sanction.

In order for the government to level a charge of misinformation contrary to section 23 of the Act, the accused in question ought to have: 

i) published the false information;

ii) known it to be false; and 

iii) calculated that the misinformation would cause chaos or panic or violence, or that it resulted in either of those things, whether intended to or not. 

The wording of these requirements is conjunctive, requiring  all the elements to be established for liability to arise. 

From the onset of the coronavirus in Kenya, the government warned that the Directorate of Criminal Investigations (DCI) would be investigating instances of fake news. In the week following the announcement of the first case by the Health CS, three people have been arrested for allegedly peddling fake news: Elijah Kitonyo was accused of  sharing a post via his Twitter account alleging that the government had lied about the identity of the first confirmed case; Robert Alai, a prominent blogger who tweeted that several people had already succumbed to the disease in Mombasa; and, blogger Cyprian Nyakundi, posted a tweet that a senior Kenya Revenue Authority official who had returned from an overseas trip failed to observe self-quarantine requirements.

Concerns

One of the effects of the infodemic is that with the large volume of information being shared, it becomes difficult to distinguish the truth from the fictitious. For example, numerous messages claiming to be from experts from China or Japan, with some even having logos of universities advising on remedies and preventive measures are shared on social media as well as private messaging apps like Whatsapp.

Studies on false news in the social media age have shown that false information, like bad news, travels fast. For example, a 2018 study by the Massachusetts Institute of Technology (MIT) found that regardless of the source, a fake story is 70% more likely to be retweeted than a true story. Faced with a piece of information received on social media, the choice for most will be to pass it along- either to get verification from others,  or, to their mind, inform them. 

Justice Makau in the BAKE case recognises the fast-paced nature of  communication on the internet, in that dissemination is much faster and reaches users all over the world. This for example, distinguishes online libel from other forms of libel. This rationale can be applied to fake news especially in times of  a global pandemic because misleading information can be easily shared worldwide causing large-scale confusion, angst and panic. 

In the BAKE case, the requirement for truth in information for it to be protected speech under Article 33 of the Constitution was debated. The petitioners were of the opinion that the Constitution provides blanket protection over expression and does not require truth as a prerequisite, which the Act now does. The Court disagreed. It found that the freedom of expression is not absolute and can be limited where it negatively affects the rights of others. False expression was found to be rightly limited where it harms the reputation of others, or injures public morality, order and general welfare. The learned judge’s discussion of lack of ambiguity in sections 22 and 23 is useful to the present discussion. He termed the impugned provisions clear and unambiguous, revelling particularly in the seemingly obvious meaning of what amounts to falsehood, saying, ‘’false’ is a plain English word and it does not require a legal definition…’ 

Who is the true custodian of the truth? This question is as old as the world and it  has not been put to rest by the BAKE judgement.  Section 23 will likely be debated for many years to come for several reasons: First, the ‘truth’ about certain topics is ever rapidly evolving. In the coronavirus pandemic, aspects of its  origin, nature and cure for the malady are still a mystery. Being a novel disease with potentially huge ramifications, issues such as the number of virus carriers versus diagnosed patients, level of preparedness, leadership and applicable laws are not crystal clear.  As such, rumours, speculation and whistleblowing reports whose veracity cannot be readily ascertained are rife. An example is the Kenya Airways employee saga, where an employee was suspended for filming the arrival of an aeroplane from China in the midst of the outbreak. His arrest and prosecution was prevented by the Court. More recently, the stories of Brenda and Brian, the first COVID-19 survivors in Kenya, have been questioned by several social media users despite being fronted by the government. With such incidences in mind, Justice Makau’s assertion that ‘false’ is easy to define seems rather optimistic.

Second, establishing that an accused person knew that the information was false is likely to be an uphill task in the case of COVID-19 news. Due to the general lack of awareness on fact-checking coupled with the rapidity with which information is shared, it might be difficult to apportion blame on this end to the average citizen. Indeed, family WhatsApp groups have been singled out for having a high number of fake news items shared, with parents being susceptible to believing and sharing untrue information. Lastly, it will be interesting to see how courts determine that an accused person intended to cause chaos, panic or violence, or that the information shared had that effect. If anything, this particular limb is in danger of abuse and could potentially result in unjust prosecution.

Questions now abound regarding due process. On 15th March 2020 the Chief Justice announced measures scaling down the operations of the judiciary. As part of these measures, cases that are not serious are to be dealt with in police stations as per guidelines issued by the Inspector-General of the Police. At this point in time, such guidelines appear not to have been issued. This measure, coupled with the (potential) increased prosecution of misinformation poses some due process concerns. To begin with, it is unclear what would be characterised as a ‘serious’ offence enough to warrant a court appearance. Spreading misinformation appears to be regarded as being serious, since Robert Alai was arraigned in court following his arrest. Secondly, the absence of the aforementioned guidelines place arrested persons in a state of uncertainty as to how the prosecuting authority is to conduct their case. It is noteworthy that the Judiciary has put in place Practice Directions on Electronic Case Management and multiple  cases have been handled digitally.

Countering the infodemic

In recent weeks, the WHO has enlisted tech companies and social media platforms to aid it in combating the infodemic. Viral misinformation has been cited as the biggest pandemic risk. It is no wonder then that a number of governments, including Kenya’s, have urged vigilance in reporting by journalists and in sharing of information by individuals over social media. The Kenya Private Sector Alliance (KEPSA) recently launched an informational website to mirror the information shared by the Ministry of Health. On it, KEPSA devotes a section to the spread of misinformation, educating users on how to identify fake news.

The Ministry of Health has also taken to text messaging and using social media platforms to take control of information on coronavirus in the country. On Twitter, the Ministry of Health gives frequent and timely updates on their timeline under #KomeshaCorona. A recent report on coronavirus in Kenya indicates that Kenyans rely on television reports more than those on social media. The government therefore has  an opportunity to manage the infodemic by making effective use of local television and radio stations. 

Conclusion

Though online fake news is difficult to tame, mitigation is possible. Kenya has an impressive internet penetration rate which has in turn fostered the spread of misinformation digitally. However, it need not be fought only on the online front. Majority of Kenyans still trust traditional sources of information which ought to be used to share accurate and up-to-date information. Vernacular and kiswahili speaking stations should also be utilised as well as grassroot leaders such as chiefs and village elders. All these efforts should be aimed at providing access to accurate, verified information. Both levels of government ought to collaborate to avoid confusion as was seen when Kakamega governor Wycliff Oparanya reported a case that had already been reported the previous day by the national government. As access to information is a constitutional right, government officials should ensure that it is treated as such and not a luxury meted out sparingly, flippantly or threateningly. Finally, fact checking should also be advocated for as a means of fighting the spread of false information. Some tools are: Africacheck’s guide on vetting information and collection of coronavirus fact checks. 

 

Image by freepik