KENYA’S TRUTH TEST: DISINFORMATION, MISINFORMATION AND MAL- INFORMATION CONSTRUED WITHIN LEGAL BOUNDARIES

 

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‘Information is only as reliable as the people who are receiving it. If readers do not changeor improve their ability to seek out and identify reliable information sources, the information environment will not improve’ - Julia Koller, a learning solutions lead developer

Is the information I receive every day reliable? How should I fact-check what I consume? Am I susceptible to receiving wrongful information? The questions posed are just a ‘sample’ of the numerous questions individuals ask themselves when reading, watching, and listening to the news, newspaper articles, their favourite author, or even scrolling through social media. In today’s society, with just a click of a button, you get access to numerous pieces of information all sourced from around the world. According to statistics, Google processes 8.5 billion queries every day. This equates to 99,000 searches each second and 594,000 searches per minute. 

What exactly is the difference between disinformation, misinformation and mal-information? According to the authors in The Psychology of Fake News: Accepting, Sharing and correcting misinformation, disinformation is ‘false information that is created to harm a person, social group, organization, or country.’ The dissemination of that information must be intended to harm an individual or specific group of people. Misinformation on the other hand is, false information, ‘not intended to harm.’ Mal-information is ‘spreading factually correct information with harmful implications – for example, by leaking factually true private information that should not have any bearing on public issues.’ The spread of harmful and/or misleading information in today’s world is rampant and needs to be addressed

In the context of Kenya, various laws have been put in place to ensure that the dissemination of harmful, dishonest, and wrongful information is mitigated. The Constitution of Kenya, 2010, regulates the spread of disinformation, misinformation, and mal-information through its provisions protecting and recognizing freedom of expression, as granted by Article 33. This freedom, however, is not limitless, and the Constitution outlines various limitations to prevent the abuse of that freedom. Freedom of expression does not include acts such as spreading propaganda or incitement to violence, hate speech, or promotion of hatred that includes ethnic incitement, vilification of others, incitement to inflict harm, or is founded on any basis of discrimination. Furthermore, freedom of expression should not be exploited to spread falsehoods. It’s ‘interesting’ to note that Kenya has enacted various statutes that criminalize the spread of harmful and wrongful information. The Computer Misuse and Cybercrimes Act of 2018 was enacted to inter alia, protect the rights to privacy, freedom of expression, and access to information as guaranteed under the Constitution. 

Section 22 of the Act speaks to False publication. The provision explicitly targets those who knowingly disseminate false, misleading, or fictitious data with the intent that the data shall be considered or acted upon as authentic. A fine of up to five million shillings or imprisonment for up to two years is imposed on those who commit the offence. This severe punishment serves as a significant disincentive, deterring not just the purposeful transmission of false information but also antagonistic intentions motivated by possible financial benefits. Moreover, section 23 of the Act focuses on the publication of false information that could incite panic, chaos, violence, or damage the reputation of individuals. This section promotes the maintenance of public order and safety by criminalizing such distribution, with a potential punishment of a fine not exceeding five million shillings, imprisonment for up to 10 years, or both, emphasising the seriousness of deliberately sharing false information.

In the case of Bloggers Association of Kenya (BAKE) v Attorney General & 3 others; Article 19 East Africa & another (Interested Parties) [2020] eKLR, the court upheld the constitutionality of sections 22 and 23 of the Computer Misuse and Cybercrimes Act, 2018. In its judgement, the court stated: ‘A perusal of the two sections reveal that the freedom of expression is properly limited as a publisher is allowed to freely express himself but only to the extent that such information does not fall in the category set out in section 22(2) of the Act…. I find that in line with the social contract theory, it is in the best interest of government to preserve public order and particularly so in country whose fabric is fragile like Kenya.’ Regulations like access to information laws, as outlined in Article 35 of the Constitution and the Access to Information Act of 2016, significantly contribute to limiting and controlling the spread of harmful and incorrect information. By seeking correct and verified information, citizens can support the battle against false information. Widespread access to factual data reduces the opportunity for misleading narratives to gain traction. Through these laws, the government can actively provide accurate information to counteract disinformation, misinformation, and mal- information. Public entities can use official channels to deliver precise information and promptly address any misleading stories. This proactive approach holds the potential to prevent the dissemination of damaging information.

In summary, as 2024 approaches, it being a super-election year, countries must develop effective strategies to regulate the flow of information. Kenya's experience highlights the need for a comprehensive framework to tackle disinformation, misinformation, and mal-information. This challenge transcends national borders, necessitating cooperation between countries. The upcoming year is crucial as it is a ‘super election year’ all around the globe. Countries must reevaluate and strengthen their legal tools to navigate the digital information age. The world anticipates insights and best practices that will shape global information governance.

Graci Ndungu is a third year law Student at the University of Nairobi. She also serves as the Research Editor at the University of Nairobi Law Journal.