Fatoumatta: What was the reason behind repealing the Nana Cybercrime law only to introduce a new one? It seems like the same problems that affected Yahya Jammeh’s enactment of the Cybercrime law are now affecting Adama Barrow in a similar way. The law seems to limit freedom of expression, and it’s creating a blurry line between private and public domains in terms of freedom of expression and privacy on social media.
Alagi Yorro Jallow
Part I
The government of The Gambia should be cautious to not implement measures that might haunt the future. It must acknowledge that there are broader lessons to learn from China than just social media regulation. The shift in leadership from Yahya Jammeh to President Adam Barrow signified a pivotal transformation in The Gambia’s political scene. President Barrow’s steadfast dedication to democracy and the expansion of freedoms, including expression and speech, has been acknowledged as a significant move away from the former regime’s constraints. These developments have been vital in broadening The Gambia’s political arena, fostering increased civic engagement and discourse. This reflects the Gambian people’s determination and desire for a democratic society.
The interplay between cybercrime laws, freedom of expression, and social media is intricate. These laws aim to shield individuals and society from online dangers like identity theft, cyber defamation, and misinformation. Yet, they may inadvertently impinge on the right to free speech. The Anti-Cybercrime Law, for instance, criminalizes certain online actions, including cyber defamation and misinformation dissemination, which could curtail freedom of speech if enforced too broadly. Social media platforms, vital for free expression, have faced criticism when such laws are perceived as overreaching or censorious.
Furthermore, there are instances where cybercrime laws have been leveraged against journalists and activists, sparking concerns over the stifling of free press and expression. Striking a balance between safeguarding against real threats and upholding essential liberties is crucial.
The ethical issues surrounding online disinformation highlight the significance of media literacy, responsible journalism, and accountability for those spreading falsehoods. Regulations that effectively curb misinformation while respecting democratic principles are vital for an informed public.
Clearly, while cybercrime laws are indispensable for combating online risks, their formulation and application must be meticulous to avoid violating privacy, expression, and equality rights.’
Fatoumatta: The potential for cybercrime laws to suppress dissent is a significant concern. The Cybercrime Bill 2023 of The Gambia has come under intense scrutiny. An analysis by Article 19 highlights that the draft bill includes provisions for content-based offenses such as ‘false news’ and disinformation, offenses against reputation, ‘cyberbullying,’ the non-consensual distribution of intimate images, incitement, and child exploitation materials. If these provisions are misapplied, they could be used to curb freedom of expression, a worry echoed by civil society groups, particularly given President Adama Barrow’s antagonistic stance on media freedom. For example, the ‘false news’ provision could suppress valid government criticism, and ‘cyberbullying’ could be used against activists or journalists.
Furthermore, the National Assembly of The Gambia has referred the Cyber Crime Bill 2024 to the Assembly Business Committee. The bill’s objectives include safeguarding the confidentiality, integrity, and availability of computer systems and data, as well as preventing the illegal use of these systems. It aims to enhance the prevention, detection, investigation, prosecution, and punishment of cybercrime. Currently, the bill is under scrutiny, with its potential impact on freedom of expression raising concerns. While laws like this are vital in the fight against cybercrime, it is crucial to strike a careful balance to ensure they do not violate human rights, such as freedom of expression. The way these laws are implemented and enforced will be crucial in determining whether they protect or suppress. Notably, President Barrow has enacted the Access to Information Bill, which promotes the proactive and systematic release of public records and information to citizens, recognizing it as a human right for the first time in Gambian history. This is viewed as a move towards greater transparency and openness, in stark contrast to the oppressive methods of the previous regime.
Since his election in 2017, President Adama Barrow has acknowledged the support from Article 19, a prominent international human rights organization, for their help in reforming the harsh media laws left by his predecessor, Yahya Jammeh. It is hoped that the Cybercrime law, which criminalizes internet libel, will not be passed by legislators as it is detrimental to freedom of expression and is considered draconian.
Fatoumatta: The world is undergoing a transformation, becoming a smaller place. We now inhabit a society immersed in virtual reality, marking a significant shift in our web interactions, shopping, and surfing habits, all powered by the sheer force of human thought and creativity. This change has profoundly altered our learning, living, communication, and global connections. Communication has become quicker and more direct, with the Internet providing a platform for instant communication with both friends and strangers at the click of a button.
The cybercrime law from the Yahya Jammeh era, which was enacted, has not succeeded in stripping Gambians of their constitutionally guaranteed freedoms. It has not removed them from their evolving role in the world, nor has it denied them their place in an era where free expression is not just a right but a vital part of living, competing, surviving, and existing. This law has brought outdated libel legislation into the internet age. However, it is crucial to acknowledge that this law has historically been used to quell dissent and restrict freedom of speech, issues that are still pertinent today.
Justice Louis D. Brandeis once said, “We should be most vigilant in protecting liberty when the government’s intentions are good. Men born to freedom are naturally watchful to fend off any encroachment on their liberty by malevolent leaders. The most significant threats to liberty are the subtle overreach by zealous individuals, well-intentioned but lacking in understanding.”
For years, the Gambian government has burdened its citizens and the media with laws criminalizing speech, such as cyber-libel, publishing false news, seditious libel, and criminal defamation, to intimidate them from criticizing the government and its policies. These ‘draconian laws’ are known for their harshness and their ability to suppress freedom of speech, an essential human right.
During Yahya Jammeh’s rule, the Gambian cybercrime law was designed to suppress the voices of citizens speaking their minds against figures in both private and public sectors. This law sought to muzzle our freedom of expression. It infringed upon the right to free speech, curtailing democratic discourse. Even humor and satirical writing were scrutinized, with every word analyzed for subversive content. This law served to shield government officials and multinational corporations while suppressing the public’s right to information.
Despite official claims, criminalizing defamation cannot be justified in a democracy. Such laws are outdated, regressive, and incompatible with free speech. Imprisoning journalists and individuals for libel is detrimental to freedom of expression and should be addressed in civil courts without compromising this fundamental right.
In the past, the Jammeh-led government used these laws to exile citizens and journalists, and to carry out arbitrary detentions and enforced disappearances.
These oppressive laws were enacted while the African Commission on Human and Peoples’ Rights (ACHPR), an essential international human rights institution, was based in Banjul, the capital. Numerous African Civil Society Organizations (CSOs) have called for the ACHPR to leave Gambia in protest of the country’s consistently poor human rights record, highlighting the need for global awareness and intervention.
Fatoumatta: Libel is the public and malicious attribution of a crime, or a vice or defect, real or imagined, or any act, omission, condition, status, or circumstance that tends to dishonor, discredit, or bring contempt to a natural or juridical person, or tarnish the memory of the deceased. This concept, often associated with media laws, can suppress freedom of expression if misapplied or overly broad.
Historically, libel has occurred through published or broadcast content, within the realm of entities regulated by the government, thus holding a degree of public trust. These organizations’ content, having undergone editorial scrutiny, is expected to be factual, echoing the adage that if it’s in print, on the radio, or TV, it must be true. Therefore, libel has been an offense committed by entities purporting to be sources of verified facts.
Conversely, personal thoughts shared on social networks like Facebook and Twitter do not assert such credibility. These individual expressions can reach broader audiences than traditional media and gain significance through likes and shares, signaling endorsement by expanding networks of readers.
These personal posts can challenge the influence of traditional media. Yet, the recognition that elevates social content to the status of news in print, radio, and TV is granted by the consensus and support of readers who propagate it, not by the authors’ claims of journalistic integrity.
Social media content, consisting of opinions intended for the author’s friends, allows those friends, and the author, the liberty to hold and disseminate beliefs as they wish. The question arises whether these networks of friends should be equated with organized media institutions and held to similar standards.
Fatoumatta: To inform the readers, on April 16, 2013, the National Assembly of the Gambia revised the country’s criminal code, allowing courts to enforce harsher penalties for those convicted of providing false information to public officials. The amendment to section 114 of the criminal code now permits a sentence of up to five years in prison or a fine of D50,000 (approximately US $1,650), a significant increase from the previous maximum of six months in jail or a D500 fine (around US $17). Additionally, the law redefines the president, vice president, speaker, deputy speaker, and members of the National Assembly as public officers, subject to these enhanced penalties. This change was necessary to align with section 166 (4) of the constitution, which did not previously categorize these officials as public officers. The act of providing false information to a public servant has been criticized as overly severe and at odds with the country’s constitution and its commitments under various international and regional agreements. Furthermore, on July 4, 2013, the National Assembly modified the 2009 Information and Communication Act, instituting a 15-year prison sentence and a 3 million Dalasis fine (about US$100,000) for anyone convicted of disseminating false information online, making derogatory comments, provoking discontent, or encouraging violence against the government or public officials, with these penalties applicable both within the Gambia and overseas.
Former Information Minister Nana Grey Johnson stated that the amendment was enacted to deter Gambians from “unpatriotic behavior” towards the government and public officials. Contrary to the United Nations Committee on Human Rights’ stance, cybercriminal libel opposes Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which protects freedom of expression.
The Gambian government should refrain from reinstating the revised 2013 Information and Communication Act on Cybercrime Prevention Law, which introduced electronic libel as a criminal offense for journalists and diaspora activists on the internet. Consequently, electronic libel carries a penalty of 15 years’ imprisonment, whereas traditional libel under the Criminal Code results in imprisonment ranging from six months to five years, along with a substantial fine.
Given that The Gambia is not an outlier in Facebook and Twitter usage, this implies that, unlike typical libel cases against print media—where publication is a factor—any social media user can now face prosecution. Merely having the allegedly libelous content on the internet suffices to establish publication.
The issue arises: Do social media platforms like Facebook and Twitter serve as mediums for private or public expression? The Cybercrime law has clarified this; any online activity—be it writing, posting, sharing, or “liking”—constitutes publication and, effectively, broadcasting. Privacy is non-existent; all actions are subject to legal action and could be deemed criminal.
Fatoumatta: The legal expert, Albert Francis, acknowledges his oversight of the provision and its implications. He overlooked additional clauses that intensify penalties for online libel—increased fines and extended prison sentences—and a provision that permits double prosecution for libel, both offline and online, which contravenes constitutional protections against double jeopardy. Moreover, the law is retroactive, experts claim, effectively nullifying the concept of retroactivity. Since the Internet can indefinitely preserve posts, tweets, and status updates, there is no cutoff date beyond which the law cannot extend its reach. Essentially, the contested law, upon enactment, will immediately suppress the freedom of expression of Gambians on the most democratic platform ever devised. The law curtails not just speech but also thought, influencing both words and deeds. Gambians will constantly face the threat of subsequent punishment online, amounting to a form of prior restraint.
The Information and Communication Amended Provision of 2013 represented a clear challenge to the UN Human Rights Committee’s stance on Gambia’s Cybercrime Prevention Law. The UNHRC stated that the Gambia’s libel law, as outlined in the Information and Communication Act of 2013, infringes upon freedom of expression in two significant ways: firstly, it is an excessive measure for achieving its stated objective of protecting individuals’ privacy; and secondly, it is unnecessary given the existence of civil libel laws, or the option for damages compensation.
Furthermore, the UNHRC found the Gambian libel law to be flawed because it fails to acknowledge truth as a valid defense.
The United States has a longstanding constitutional commitment to freedom of expression. Justice Holmes famously said, “When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market…”
This commitment is upheld because freedom of expression is the means by which truth is discerned and tyrannical regimes are held accountable: “The freedom to speak one’s mind is not only an aspect of individual liberty—and thus a good unto itself—but also is essential to the common quest for truth and the vitality of society as a whole. We have, therefore, been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions.
Fatoumatta: The criminalization of internet libel marks an expansion of the government’s infringement on freedom of expression, extending even to the Internet, which has been a bastion for the free exchange of ideas. Ironically, prior to this law, the United Nations had recognized the Gambia for its non-interference with the Internet. This law serves as evidence that despite the government’s strong mandate and high public approval, it still appears insecure in the marketplace of ideas. A lawyer friend once advised me that the provisions of the law are explicit and should not be inferred otherwise, no matter how implicit they may seem. Based on his expertise, I believe that the cybercrime law needs to either replace its libel clause or amend its wording. Like any other law presumed regular until proven otherwise, this cybercrime law seems to heavily infringe upon freedom of expression, thus bearing a significant presumption of unconstitutionality.
