DIAMONDS IN THE DIRT: THE COST OF FREE SPEECH
Human beings are the
pre-eminent social animal on the planet, and we depend on our ability to
communicate with others for survival and success. Speech allows us to express
our ideas and our viewpoints on different subject matters, and reach a
consensus on how to navigate this complex and ever-changing world. It is
against this backdrop that national and international law guarantee the right
to freedom of expression, to seek and impart knowledge and ideas in numerous
forms. The justifications for freedom of expression are relatively
straightforward: free discussion allows citizens to be exposed to a range of
ideas, resulting in better judgements and thereafter tangible economic
benefits. Further, curtailing freedom of expression is an infringement on the
individual’s autonomy and dignity. Collectively, it is the hand maiden in the discovery
of the truth, as it provides a reasonable balance between stability and social
change. The importance of freedom of expression for democracy has been widely, almost
unanimously acknowledged. For everyone’s views to be taken onboard, people have
to express them, and the majority wins. There is no doubt therefore that to
achieve these objectives, speech must be as untrammeled as possible.
IS FREE SPEECH
ABSOLUTISM TO BE PREFERRED?
It is also the case
that no society has existed where speech has not been limited to some extent.
According to Stanley Fish, the phrase ‘free speech’ is not to be misconstrued
to mean unlimited speech, such a concept ca not be defended. It would lead to
chaos, anarchy and the state of nature, a life that Hobbes described as ‘solitary,
nasty, brutish and short’. At the very minimum, speech has to be limited for
the sake of order. Once we abandon the incoherent position that there should be
no limits in speech, we have to make controversial decisions on what can and
cannot be expressed.
THE ADVENT OF SOCIAL
MEDIA AND STRIKING A BALANCE
Less than two decades
ago, the dissemination of information was the preserve of mainstream media:
radio, newspapers et al. Now, the old is gone and the new has come. The rapid
advancements in technology coupled with the advent of social media has given
everyone a global platform to express their thoughts and opinions. Information
spreads faster than ever before, and we can now get an almost real time
representation of what is happening all around the globe. While this is by all
means a great feat, it is not in our best interest to turn a blind eye to the
obvious challenges it presents. What are the limits of free speech? Who should
limit it? Is there an obligation to be respectful in your online interactions?
Do you have a right to be wrong?
NO, YOU CAN’T BE WRONG
Section 23 of the
Computer Misuse and Cybercrimes Act, 2018 (hereinafter referred to as the CMCA)
criminalizes the publication of false information if it is calculated or results
in panic or chaos. Anyone who violates this law risks a ten year jail term, a
fine not exceeding Ksh. 5 million or both. Interestingly, section 23 has no
offline counterpart, that is to say that no offence arises from making false
statements in an offline setting, for instance at a wedding ceremony. This law
places an obligation to users of social media to confine themselves to the
‘truth’. We know for a fact that it does not matter how notorious a fact is,
you will definitely have a faction that believes the opposite. Even if you state
that the earth is round, flat-earthers still exist. We have the profound idea
in society that what is true is that which can be proved scientifically.
However, if the Covid 19 pandemic is anything to go by, we should be more cautious
of adopting the word of scientists as sacrosanct. Demanding the truth in all
online engagements is putting the cart before the horse; speech is what leads
to the truth. It is what enables us to stumble around badly in search of what
is true. The notion that it is possible to always say the truth is therefore
completely divorced from reality for the simple reason that most times we do
not even know what the truth is, and our expression is the first step in the
quest for it. The Supreme Court of Uganda noted that the right to freedom of
expression is not confined to categories, such as correct opinions, sound ideas
or truthful information.
MISINFORMATION OR POINT
OF VIEW?
It is not uncommon for
posts online to be flagged for misinformation. This is usually done by social
media companies which are predominantly private entities. This presents the
obvious possibility of the platforms using algorithms to force particular ideas
and agendas down our throats. If it is not happening already, they could censor
certain parts of arguments, and this has profound implications on how the
public view important global issues such as the Israel-Palestine conflict. On
January 8, 2021, Donald Trump tweeted that he would not be attending the
inauguration of the then president elect Joe Biden. This would be his last
tweet, as it saw him banned from the platform, with the social media company
claiming that the statement was ‘further confirmation that the election was not
legitimate’. The prerogative given to these social media companies to decide
what can and cannot be expressed is a slippery slope towards censorship and
tyranny. This is evidenced by the arbitrary suspension and banning of
individuals who are found in violation of the companies’ guidelines, in an
effort to ‘maintain law and order’ (as long as they make the laws and give the
orders). Reasonable limitations to the right exist under article 33(2) of the
constitution, and where gaps exist, legislation should be prioritized to
address them. For instance, a proposal was made in the Kenyan parliament to ban
Tiktok due to the ramifications it has on the young and impressionable populace.
Due to the copious amounts of information disseminated on online platforms,
restrictions on such information should be the preserve of the law. This would
protect the holders of the right from arbitrary sanctions and therefore foster
freedom of expression online.
CAUSE AND EFFECT
A heavy price has been
paid for expression, including the assassination of bloggers and whistleblowers
on account of voicing criticisms of national leaders. Section 23 of the CMCA is
used to maliciously prosecute online activists and disincentivice others who
contemplate to take a similar path. The state has no business limiting
expressions of criticisms of public officers. It is not only difficult but also
contradictory to demand respect and politeness when people are expressing
frustrations towards a government they elected. In Hector v Attorney General of
Antigua and another, the court highlighted that holders of public office must
always be open to criticism. Any attempts to stifle such criticism amounts to
political censorship, one of the weapons that Nazi Germany had in their
arsenal. Needless to say, the consequence would be leaning towards draconian
totalitarianism, where individuals have no agency over their actions and they
are unable to exercise all their inherent rights. It is important to note that
free speech is not a right among other rights; it is the predicate of all other
rights.
CONCLUSION
Free speech is not just
important for democracy; it is responsible for the reality we exist under. The
whole point of having social media platforms is that they are reflective of
society, that they allow all views including the ones we do not believe in, the
ones we disagree with, and the ones we think are outright lies. It is a
marketplace of ideas that extends to ideas which shock the public. In our continual
search for the truth, we have to be willing to risk being offensive, incorrect
and to revise our position in light of new evidence. It is only when we muddy
our hands that we will find the diamonds in the dirt.
Comments
Post a Comment