By Sulayman Bokar Bah;
A journalist, international law specialist & doctoral researcher
The Gambia is leaning towards adopting a cybercrime legislation to prevent excessive abuses of the right to freedom of expression and protect human rights. As the Cybercrime Bill 2023 is going through debates in the National Assembly, it provides general principles establishing criminal liability for participating in offences related to cybercrime as well as provisions on various types of offences aimed at protecting citizens from computer related crimes. It also provides for the collection and use of electronic evidence. In cases of cross border cybercrimes, the Bill provides for international co-operation to identify perpetrators and gain access to evidence. Crimes relating to social media and internet activities such as cyber bullying, spreading false news and incitement of violence are addressed in the Bill.
Arguably, several of these provisions such as spreading false news and incitement of violence are adopted from the Criminal Code 2009, Information and Communications (Amendment) Act 2013 and Newspaper (Amendment) Act 2004. These legislations were subject to considerable criticisms because of their implications on freedom of expression. On the benefits of it, I believe that the Cybercrime Bill can be very effective in prohibiting digital harms including computer fraud and harassment of journalists online and offline. Although the proposed legislation could be a powerful tool for repressing dissent online by the State, the benefits of the Bill for digital safety for journalists and ordinary citizens cannot be ignored. In my view, such a move is consistent with international human rights standards as set out under the 2016 UN Human Rights Council resolution (33/2) on the Safety of Journalists. The resolution made it obligatory for States to prosecute attacks of all kinds including gender-specific attacks, create protective measures for journalists, facilitate independent investigations, and ensure victims have access to appropriate remedies.
Online harassment of journalists and abuse of free speech has become a toxic digital culture globally, and The Gambia is not an exception. For example, businessman Abubacarr Jawara’s civil suit against Momodou Sabally offers understanding to abusive use of social media that could potentially damage personal and business reputation. Without verifying his allegations, Momodou Sabally attacked the businessman on social media linking him to drug cartels. In his defence, Sabally relied on fair comment and public interest, which in certain instances can protect the publication of a defamatory material even if cannot be proven to be true. However, in common law if the court found that a publication relied on untrustworthy sources with an axe to grind, or had not made serious attempt to contact the claimant to get the other side of the story, then the defence would fail irrespective of the strength of other factors.
There are many more interesting cases and examples I have discussed in a forthcoming publication.
A key provision of the Cybercrime Bill is spreading false news online. Interestingly, Article 6(2) provides that unless reasonable measures are taken to verify the accuracy of information or news, it shall be no defence that a person charged did not know the information or news was false. This means that the drafters of the Bill require online publishers to strictly adhere to accuracy, which is a fundamental principle of journalism. What this points to is the expectation for even social media users to abide by journalistic ethics. Here, I believe that the principle can be used to target specific users on social media.
