Why cybercrime law should be reviewed

At the World Press Freedom Day celebrations in Accra on May 3, my colleagues and I, special rapporteurs on freedom of expression and access to information from the United Nations, Europe, the Americas and Africa, issued the Joint Declaration on Media Independence and Diversity in the Digital Age.

An independent and diverse media should be facilitated to continue supporting the functioning of democratic societies and conscious of the key roles investigative journalism must continue to play to expose corruption and other crimes.

The Computer Misuse and Cybercrimes Act 2018 is, in many respects, an apt illustration of just the sort of legislative intervention which persuaded us about the importance of issuing the declaration.

The law aims at filling the legal gap on crimes that target computer systems and enable their timely detection and investigation.

ACCESS CODES

It describes and criminalises acts such as unauthorised access, interference and interception of data and access codes via computer systems — cyber espionage, cyber forgery, cyber terrorism, cyber stalking and cyber bullying.

The declaration states that restrictions which are designed specifically for digital communications should be limited in scope to activities which are either new or fundamentally different in their digital forms. That is why the clear regulatory framework for cybercrimes established in the Act is welcome.

Legitimate concerns have, however, been raised about the appropriateness and, indeed, constitutionality of certain aspects of the Act. The law criminalises publication of what it refers to as “false, misleading or fictitious data”, as well as false information calculated to cause, or results in, panic, chaos or violence or is likely to discredit a person’s reputation. Why are these provisions problematic?

LEGAL LIMITATIONS

The declaration reaffirms the centrality of the three-part test in any legal limitations to the freedom of expression.

Restrictions on what may be disseminated through the media should be imposed only if they are provided for by law, serve a legitimate interest and are necessary and proportionate to protect that interest. The test is also legislated in Article 24 of the Constitution and Article 19 of the International Covenant on Civil and Political Rights, to which Kenya is a party.

States should refrain from adopting disproportionate laws criminalising or imposing harsher penalties on online expression than their offline equivalents. Where offline content is regulated through civil law, similar online content should also be regulated by civil law, not criminal law.

ONLINE DEFAMATION

It should not, therefore, be  that our laws criminalise online defamation when offline criminal defamation has been determined as unconstitutional. Various judicial bodies have reaffirmed that defamation laws should be exclusively civil rather than criminal in nature.

In Konate v Burkina Faso, where the applicant had been convicted and sentenced on a count of criminal defamation, the African Court on Human and Peoples’ Rights determined that a custodial sentence for the crime of defamation is not consonant with Article 9 of the African Charter on Human and Peoples’ Rights, which guarantees the right to freedom of expression.

REVIEW THE LAW

In Okuta v AG, Kenya’s High Court determined that criminalisation of defamatory statements is unconstitutional.

All relevant organs of State ought to take due measures to review the law to make it consonant with the Constitution as well as Kenya’s obligations under the international human rights instruments.

Let’s embrace and cherish the Digital Age but respect the limitations built in the exercise of our freedoms in offline as much as online discourses.

Mr Mute is the Special Rapporteur on Freedom of Expression and Access to Information in Africa. [email protected]. Twitter: @lamumu07