Anti-fake News Legislations and Free Speech:

A Comparative Evaluation of the Trends in Germany, Malaysia, and

Kenya

Suleiman Usman Santuraki

Department of Public Law, University of Maiduguri, Maiduguri, Borno state, Nigeria.

Keywords: Fake News, Free Speech, Social Media, Legislations.

Abstract: Fake news is intended to misinform, deceive, or manipulate the public. It may create tension and potentially

crisis of untold proportions. It may also scare people from expressing themselves for fear of becoming a

source of fake news. Consequently, national regulators have resorted to regulating fake news especially on

the social media, to prevent an impending and imminent catastrophe that it could lead to. The idea behind the

regulation of fake news is not in itself blameworthy, it may be used to suppress free speech by wide and

subjective definitions of fake news. Using doctrinal as well as comparative methodologies, this paper

appraises the trend between states of passing laws or proposing laws to regulate fake news. It appraises the

contents of such laws from Germany, Malaysia, and Kenya, to show how they affect free speech. It finds that

though some provisions of the legislations considered may negatively affect free speech in those jurisdictions,

some measures were taken to restrict such effects. The paper concludes that textually, the German legislation

made more strained efforts to avoid negative impacts on free speech, while the Malaysian law looks

procedurally sound by subjecting decisions to judicial review. The Kenyan law categorically derogated from

the constitutional guaranty of free speech.

1 INTRODUCTION

The new millennium ushered in unprecedented

advancements in information technology making

communication much easier and almost

instantaneous. As a result, what amounts to news is

not restricted to that which comes from the

mainstream media, so individuals and groups can

easily publish stories that gets to millions of people,

notwithstanding its veracity.

Such stories are often fake and can have

devastating social and security consequences on

societies. Because of the explosion of fake news on

social media, calls have been made at both national

and international levels to curb the trend seen as an

imminent and clear danger to society. Such calls have

been heeded by several states in the form of

legislations and regulations, imposing penal and civil

liabilities for expressing, promoting, or providing the

platform for fake news. Several nations have either

promulgated or attempted to promulgate legislations

aimed at regulating fake news. Such legislations

come in various forms, mostly penalising the

publication of fake stories, restricting the freedom

with which individuals and organisations publish

news items and stories. Though the regulation of fake

news is not in itself a wrong trend, the nature of such

legislations is such that they may lead to unintended

consequences.

Primary among such unintended consequences is

unnecessary restriction on the freedom of expression.

In such circumstances, fighting the scourge of fake

news online would have provided the perfect

opportunity to gag not only the media, but even

private individuals from expressing themselves. This

paper therefore, critically analyses and compares

Anti-Fake News legislations and policies in Malaysia,

Germany, and Kenya, with petty reference to other

jurisdictions. The aim is to show how these laws and

policies meant to curb the scourge of fake news

undermine free speech. It finds that anti-fake news

legislations in some states undermine free speech.

296

Santuraki, S.

Anti-fake News Legislations and Free Speech: A Comparative Evaluation of the Trends in Germany, Malaysia, and Kenya.

DOI: 10.5220/0010049502960305

In Proceedings of the International Law Conference (iN-LAC 2018) - Law, Technology and the Imperative of Change in the 21st Century, pages 296-305

ISBN: 978-989-758-482-4

2 THE FREEDOM OF

EXPRESSION OR FREE

SPEECH

Free speech has become synonymous with

democratic societies as an essential enabler for

discussing varied views. This underscores the need to

protect and promote freedom of expression among all

and sundry to develop democratic foundations

(Tsesis, 2015, p. 1). The inevitability of free speech

has generally been viewed from the natural human

yearning for self-actualization, the spread of truth,

and societal involvement aimed at developing “the

whole culture” which ultimately leads to the

formation of a firm society (Emerson, 1970, p. 6-7).

It should therefore, be conscientiously protected and

cherished, for it reflects the person’s logic of

uniqueness and individual goals, self-sufficiency and

advancement of knowledge, in addition to communal

values. The freedom of expression stems equally

from the individual requirement to express thoughts,

and the communal right to parity. Hence,

advancements in information and communication

technology (ICT), especially the internet presented

the perfect prospect for such a notion to thrive

unhindered. This was made even better by the

eruption of social media platforms such as Facebook,

Twitter, YouTube, and the like, all of which

facilitated and eased communication. The gigantic

benefits of such advancements notwithstanding, they

have also been used to peddle fake news at an

unprecedented level.

In a democratic setting, contending entitlements

are tested through continuous discourse which

promotes the procurement of varied contribution

aimed at shaping political conclusions: Free speech

facilitates such a process. As a result, democratic

societies are beholden to protect personal freedom of

expression: at the same time, the society is bound to

encourage values of equality designed to prevent

against impairing others' security and self-esteem.

Consequently, to ensure parity, governments are

generally deprived of the authority to regard the

speech of equally positioned individuals contrarily

(Tseis, 2009, p. 497). The promotion of individual

freedom and democratic heterogeneity therefore

underlie the need for all and sundry to freely express

their thoughts.

Thus, the concept of free speech originates from

the framework of a broader notion of freedom and

parity preserved as core human aspiring values. The

primary purpose of establishing democratic societies

may therefore be seen in the need to articulate

guidelines aimed at achieving these aspirations

(Tsesis, 2015, p. 4). As a result, legal instruments, be

they national or international have been endorsed

primary to facilitate and ensure the enjoyment of this

right. This is good for the individual as well as the

society for it identifies the need for all persons to

explore their inimitable life strategy, which may be

reflected in our expressions, devoid of unwarranted

fetters (Wilkinson III, 2012, p. 4).

Restraints on freedoms, if any, should be

reasonably planned towards the common good,

deprived of subjective favouritisms in the direction of

any set of people. In many societies, the freedom of

expression is essential, not only for historical

purposes, but also to aid in moving away from

undesirable historical antecedents. It promotes a

commitment towards the advancement of equality

and human rights, as it serves as a vent to persons

dedicated to societal transformation; it is an

indispensable tool for nurturing communal discourse

around issues which hitherto were unmentionable

(Goldstein & Feldman, 2010, p. 830). Because of the

equality of all human beings, disagreements are

inevitable on almost all aspects of social life; the

freedom of expression is an essential predicate for all

individuals to express their distinct views leading to

concessions for the common good (Schauer, 2012, p.

97). Free speech is therefore an essential element of

any society dedicated to the common good as

opposed to a few. A diverse civilization is not

expected to express itself in agreement: hence the

need to protect varied persons’ resolve to scrutinize

notions alike as within the society they all belong to.

This explains the protection of the individual’s right

to freedom of expression under domestic

constitutions and bills of rights and international legal

instruments to ensure a global framework towards

global fortification.

2.1 Fake News

Fake news is complex, multifaceted, and represents

real threat to society. For one thing, it has become

widespread with grave damaging effect on both

persons and the society at large. Fake news can

effectively disrupt the validity equilibrium of the

news environment, deliberately convince its patrons

to uphold predisposed or dishonest views, as it is

typically wrought by polemicists to send dogmatic

communications or impact. It also has the potential to

prompt misgivings and confusion among individuals,

hindering their aptitude to discern truth from

falsehood (Shu, Sliva, Wang, Tang, & Liu, 2017, p.

1). The idea of Fake news is not a new phenomenon;

Anti-fake News Legislations and Free Speech: A Comparative Evaluation of the Trends in Germany, Malaysia, and Kenya

297

yet, the expansion of the social media facilitated by

the internet has made fake news a more prevailing

power that contests conventional reporting standards.

The lingo ‘fake news’ presents a novel platform

for persistent deliberations in relation to reporting

practices and integrity, state regulation, preconceived

information and suppression. It underscores the place

and function of social media and the internet in

contemporary public domain. It has become one of

the most famous terms in universal lexicon, yet its

true connotation remains distorted to possible

meaninglessness. It is frequently applied as a smear

flung at the media or partisan adversaries. It is often

used interchangeably with such expressions as

“propaganda, disinformation, and misleading

information” (WiltonPark, 2017, p. 2), the application

and understanding of which can be relative, thus

hindering consensus. As a result, it has become

difficult to arrive at a harmonized meaning of ‘fake

news’, or if the term is suitable, bearing in mind that

it is used under several contexts. Notwithstanding, the

term “fake news” and its upshots may be viewed as

the modern-day depiction of news items or

information seemingly untrue or erroneous yet

designated as realistic or accurate. Because the

community supposes, correctly so, that the

information they get from news outlets was

professionally collected and confirmed by an

impartial correspondent, it is expected that such

neutrality be reflected in news reporting. Thus,

sentiments or points of view should be clearly

disclosed and identified as such. Consequently, fake

news is not restricted to false stories from unknown

or unverifiable sources: it includes deliberately

biased, or clothed reporting from reliable media

(Farsetta& Price, 2006).

It is noteworthy though, that the expression ‘fake

news’ has of recent become an instrument used by

politicians to discredit critical information or

assessments by the media (BBC News, 2017). Along

the same line, certain media outlets might be partial

or discriminatory in reporting facts as it pertains to

their beliefs or ideals. In such situations, whether it

amounts to fake news will depend on the perspective

of the listener, and to a large extent, if the audience

were misinformed. Be it from the presentation or the

material of the news, where the audience or readers

are cuckolded due to the appearance or appeal of the

story or the real erroneousness of information, it fits

into contemporary understanding of fake news. This

trend has been intensified with the advancement in

ICT guaranteeing little control over dissemination of

information that can easily reach millions irrespective

of its accuracy. For example, fake or false

information once presented on social media may be

shared by innocently or ignorantly believing

individuals millions of times, thereby strengthening

its appeal and credibility. In certain situations,

however, individuals share these pieces of

information not necessarily because they were

ignorant of its veracity, but simply because it appeals

to their sentiments, or it serves some personal drive.

Accordingly, it has become even more problematic

for individuals and the global community at large to

discern ‘fake news’ from genuine stories online. To

complicate matters, whereas ‘fake news’ and

‘substitute details’ were hitherto restricted to the

tabloids, contemporary reality pinpoint to their

acceptance and manipulation at the uppermost

heights of politics, producing ethical crisis of sorts,

with universal reach. Though fake news spreads fast

and easily online, its effects offline might be huge,

leading to moves by governments to proscribe it.

3 THE NEED FOR REGULATION

There is no doubt that fake news has become

prevalent over the years, especially on social media,

driven by individuals, institutions, and even states, for

various objectives which may include a deliberate

attempt to delude the public. (The United Nations

(UN) Special Rapporteur on Freedom of Opinion and

Expression, 2017). Such fake stories have the

tendency to cause serious damage to reputations of

both individuals and organisations. They may also

provoke crisis, discrimination and antagonism against

specific individuals or groups (The United Nations

(UN) Special Rapporteur on Freedom of Opinion and

Expression, 2017). Bearing in mind the negative

effects of fake news, coupled with its potential to

unleash chaos and violence which may affect the

security and welfare of individuals and states alike,

there seems to be the need to regulate such

behaviours. Consequently, over the years, there have

been calls from within states, and at the international

level, for states to regulate incidents of fake news. On

the national front, individuals and groups have called

on governments to proscribe fake news to prevent the

possible effects it may have on security and peaceful

coexistence. In 2006, after a thorough study into the

use of Video News Reporting (VNRs) by US

television stations, the Centre for Media and

Democracy recommended more stringent policies on

how media outfits present publicity videos disguised

as news items (Farsetta& Price, 2006, p. 27). As

result, several countries have either enacted laws

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meant to curb the scourge of fake news or are

considering such measures.

On the other hand, there have also been several

expressions against regulation of fake news. The fear

is that any attempt to regulate fake news may have the

effect of eroding the freedom of expression. Indeed,

attempts to regulate speech is seen as a deliberate

attempt by certain regimes to clamp down on free

speech, opposition, and the mass media (WiltonPark,

2017, p. 5). Moreover, there is also the fear that some

punitive legislations introduced by states to regulate

fake news might be too broad, ambiguous, or

inadequate, thereby open to ill use and abuse. The

application of such legislations is also a point of

worry for human rights activists, especially in states

where institutions are not well developed and

independent to ensure equitable and fair enforcement

(OHCHR, 2013). To others, legislating against fake

news will only amount to superficial scrabbling of the

profounder complications reflecting human prejudice

and failure to find mutual positions on issues we have

differences on. Thus, enacting laws to counter fake

news could shadow its hullabaloo for a while; it will

however, have a hypothetically unsettling

consequence on free speech (Reventlow, 2017, p. 2).

Simple or swift solutions to the problem of fake news

are therefore not feasible. It would therefore, be better

if attention is focused towards the fundamental

problems with the aim of addressing it in all its

ramifications, rather than proposing indicative

solutions.

4 TRENDS ON REGULATIONS

OF FAKE NEWS

Several instruments ranging from punitive laws, to

code of conducts have been enacted over the years to

address the problem of fake news. These instruments,

legal or quasi -legal in nature, vary from state to state,

though there might be some points of convergence or

even similarities among some. Essentially, they all

attempted to solve the problem of hate speech and

fake news, especially online, considering the speed

with which it spreads and the possible effects it may

have.

On the national front, several countries have

enacted laws proscribing fake news; at the same time,

many others are either in the process of enacting such

laws or have indicated moves towards that. Examples

of such laws are discussed below.

4.1 Germany

Prominent among anti-fake news legislations is

Germany’s “NetzDG” which came into force on 1st

October 2017, though compliance was differed to 1st

January 2018 (BBC News, 2018). Specifically, the

German law applies to social media companies

having more than two million users in Germany. It

specifically excludes mainstream media

organisations providing ‘journalistic or editorial

content, the responsibility for which lies with the

service provider itself’, and stages meant for specific

communication (Bundestag, 2017, ss. 1 (1)). This was

clearly a thoughtful position meant to safeguard the

media since contents on their websites are not

subjected to this law. It therefore, shows the resolve

of the German lawmakers to safeguard free Press,

while regulating the problem of fake news. This is

commendable because to points to how states may

approach contemporary challenges such as fake news,

without necessarily having to reverse earlier progress

made on free speech. The wordings of section 1 (1) of

the law also mean that it is not applicable to platforms

such as WhatsApp and Messenger since

communications on such platforms are not meant for

public consumption. This again shows a resolve to

protect the right of individuals to speech, deflating

any attempt to relate the law with gagging the media

or free speech.

In addition, though the law proscribed certain

contents as unlawful, such contents were subjected to

the provisions of the German Criminal Code

(Bundestag, 2017, ss. 1 (3)). It therefore means that

for contents to be considered unlawful and thus incur

the wrath of the law, it must be shown that it was

already illegal under the Criminal Code. As a result,

the law cannot be said as having created new offences

as such. What it did was to bring the contemporary

problem of online hate speech and fake news within

the existing legal purview. The law requires social

media companies to delete hateful expressions, fake

news and illegal contents on their sites within 24

hours or 7 days of receiving notice of such contents

(Bundestag, 2017, ss. 1 (2), 3 (2)). Social media

companies are also required to publish detailed half

yearly reports about actions taken pursuant to

complaints where they have received more than 100

complaints in a year (Bundestag, 2017, s. 2 (1)). In

addition, social media companies should facilitate the

complaining process by providing user friendly and

enduring procedures, give notifications to both the

complainant and the user on its decisions and reasons

for such decisions.

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Notwithstanding the detailed and precise

provisions of the German law, several criticisms have

been labelled against it for being perilous, defective,

weakens free speech, and sets a dangerous model for

other states to follow in confining speech online

(Human Rights Watch, 2018). Clearly, one of the

most glaring deficiencies of the German legislation is

the requirement that complaints about unlawful

contents online should be assessed by employees of

the social media company. The same employees are

also responsible for deleting such contents within the

time specified, which could range between 24 hours,

48 hours, or a week (Bundestag, 2017, s. 2 (8)). The

problem with this provision is manifest in the need for

neutrality on the part of an arbiter. In this case, it is

true that the employee of the social media company

may not be a direct party to the existence or otherwise

of the content. However, because the company is

under pressure to avoid being made to pay huge

penalty, the employee may not take a considered

decision and is more likely to decide in favour of

removing the content in any case. This will be an

easier solution for the company than to risk leaving

the content online and be found wanting. This is

especially the case because the employees

responsible for this decision are not necessarily

trained judicial officers. Whatever little training they

may receive also comes from the company.

Responding to the criticisms, the German

Government justified the law, stating that it was a

necessary response to an alarming spread of

detestable expressions, fake news, spiteful gossip,

and defamation (Government of Germany, 2017, p.

1). Describing free speech as the foundation stone of

a free nation, the government emphasised the need to

respect criminal legislations why exercising the right

to freedom of expression. It underlined the

relationship between spoken sweeping positions and

violence. It justified the need for the law on the

inability of initial voluntary efforts to provide the

results desired (Government of Germany, 2017, p 1-

2).

4.2 Malaysia

Similarly popular among national legislations against

fake news, is the Malaysian Anti-Fake News Act (The

Parliament of Malaysia, 2018). The law which was

published in April 2018, defines fake news as: “…

any news, information, data, and reports, which is or

are wholly or partly false, whether in the form of

features, visuals or audio recordings or in any other

form capable of suggesting words or ideas;” (The

Parliament of Malaysia, 2018, S. 2). The law applies

to both online and conventional publications and re-

publications, which might cover sharing on social

media platforms. The extra-territorial application of

the law to persons outside Malaysia so long as the

fake news affects Malaysia, or a Malaysian citizen is

perhaps, one of its most controversial provisions (The

Parliament of Malaysia, 2018, s. 3). Under the Act,

malicious creation, offering, publishing, printing,

distributing, circulating, or disseminating fake news

carries a fine of RM 500, 000, or six years

imprisonment, or both, in addition to a fine of RM

3000 daily for continuous publication. The court may

also order the issuance of an apology and the removal

of such publications. As opposed to the German law,

its Malaysian counterpart made no exceptions of

mainstream media companies, nor individual

communications platforms. It is therefore all

encompassing. This position perhaps strengthened

the belief among critics that the law was meant to gag

the media, and to prevent citizens from criticising

government. Thus, the law drew criticisms from

several sectors of the international human rights

movements. It was described as a nebulously worded

legislation aimed at outlawing free speech

(International, 2018). The law was widely viewed as

a move to stifle free speech especially in relation to

criticizing government as some said it was only meant

to protect then Prime Minister, NajibRazak (Lourdes,

2018). The government justified the legislation on the

need to curb the dissemination of false and malicious

stories, adding that the law will protect both the

government and opposition as it will be administered

by the judiciary. This again, is perhaps one of the

commendable innovations in the Malaysian law,

because subjecting the decisions to the judiciary

ensures some neutrality and fairness. In addition, it

also ensures that contents will be assessed by judicial

officers trained to carry out such functions. Their

experience and training in assessing criminal laws

and human rights violations will be the difference

compared to what obtains under the German law.

Thus, while the Malaysian law is textually more

likely to result in eroding free speech, it seems to be

procedurally better by entrusting the judiciary with

the responsibility of enforcing the law. Following the

2018 general elections in Malaysia which saw the

opposition taking over government, the law was set

to be repealed as specified by the government (Zin,

2018).

4.3 Kenya

In Kenya, publishing fake news is punishable under a

recent law, with both fine and imprisonment of

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between two and ten years (The parliament of Kenya,

2018, Art. 22 and 23). The law applies to what is

referred to as false publications, meaning one who

“intentionally publishes false, misleading or fictitious

data or misinforms with intent that the data shall be

considered or acted upon as authentic, with or without

any financial gain...” (The Parliament of Kenya,

2018, Art. 22 and 23). The law specifically curtailed

the freedom of expression guaranteed under the

Kenyan constitution in relation to ‘the intentional

publication of false, misleading or fictitious data or

misinformation that (a) is likely to — (i) propagate

war; or (ii) incite persons to violence… (d) negatively

affects the rights or reputations of others.’ (The

Parliament of Kenya, 2018, Art. 22 (2)). With respect

to free speech, the Kenyan legislation is likely to be

of concern because of the overbroad use of terms such

as ‘false, misleading, or fictitious information’. The

problem is that these words may be liberally

interpreted with an aim to gag the media or opposition

or to prevent individuals from exercising their

freedom of expression. The requirement that such

information or data is likely to lead to violence and

civil strife is understandable considering the history

behind the legislation which is connected to the

violence that followed the country’s prior elections.

This is more so since the law was promulgated before

the next elections after the crisis. However, how these

far-reaching terms will be interpreted is decisive.

More troubling though is the part that talks about

‘negatively affects the rights or reputations of others’

(The Parliament of Kenya, 2018, art. 22 (2) (d)).

Here, it is not clear whether such information or data

need first be shown to have been false in addition to

damaging the reputation of individuals. If the two

requirements and conjunctive, which seem to be the

import of the law, then it may well be better.

Otherwise, it may be too vague and clearly an

unnecessary restrain to free speech. Again, the

Kenyan law made no exceptions between journalistic

publications and those on social media or even

conventional publications (The Parliament of Kenya,

2018, art. 23).

4.4 Others

In China, the country’s Cyberspace Administration

maintained that online media should not disseminate

any news taken from social media sites without

approval. “It is forbidden to use hearsay to create

news or use conjecture and imagination to distort the

facts,” (Reuters, 2016). It requires all echelons of

Internet management to seriously accomplish their

administrative obligations regarding internet content,

reinforce regulation and detection, strictly review and

deal with fake and unverifiable news. Government in

China, is known for deleting contents on social media

platforms, insisting on the necessity of such measures

to protect the rights and interests of nationals, and to

encourage vigorous growth of the internet (Tambini,

2017, p. 13). Under this system, social media

operators must remove what is considered rumour,

and the authors may face jail terms of up to 3 years,

in addition to suspension of their accounts (Tambini,

2017, p. 13).

In Italy, a 2017 proposed anti-fake news law

aimed at criminalizing the posting or sharing of

contents considered ‘false, exaggerated or

tendentious news’. Offenders may face a fine of up to

5000 Euros, and a jail term where the news could lead

to crime or violence. On failure of the Bill to pass

through parliament, the government introduced

operational protocols aimed at curbing fake news,

under which citizens may report cases of fake news

to the cyber police which may review such stories

(Kaye, 2018, p. 1-2).

In Tanzania, the government issued new

regulations it said was meant to protect the nation

from lies. The move aimed at fighting fake news,

involve the payment of the equivalent of $920 by

bloggers as license fee for placement of content

online. It would also entail a fine of $ 2000 and a jail

term of up to one year (Olewe, 2018). In Uganda, the

government proposed an anti-gossip tax which targets

social media users in the country, to check gossip and

lies (Olewe, 2018). A member of parliament in

Indonesia had threatened to shut down Facebook if it

fails to crackdown on fake news as the country

approaches election (The star online, 2018). Other

nations from France, to Philippines, India, Nigeria,

Russia, Sweden, Jordan and many others have either

enacted or muted the idea of enacting laws aimed at

regulating hate speech and fake news especially on

the social media.

5 THE IMPACT OF

REGULATION ON FREE

SPEECH

Fake news online defines the juncture of numerous

strains: it reflects the manifestations of incongruities

among diverse groups traversing societies. Nothing

reveals the real effects of the revolution in ICT which

could come along with both prospects and trials, like

the menace of fake news. It indicates intricate

harmonization between the freedom of expression

Anti-fake News Legislations and Free Speech: A Comparative Evaluation of the Trends in Germany, Malaysia, and Kenya

301

and the protection of human dignity (Gagliardone et

al., 2015, p. 7). This has lead nations to recommend

legal limitations which may negatively affect free

speech. The exact impact of these regulations on free

speech will depend on the background of the person

examining the laws. For instance, analysis from the

USA seem to be more dogmatic about the

inviolability of free speech, as the jurisprudence from

the USA generally promotes the idea that speech,

including hateful and false expressions are protected

(Tseis, 2009, p. 498-9). This however, is not a

unanimously supported position as some, even in the

USA promote the understanding that free speech may

be derogated from to protect other democratic values

such as equality (Ronald J Krotoszynski Jr, 2005, p.

1326).

Be that as it may, the global scamper to regulate

fake news are bound to result in certain consequences

for free speech. While it is true that some countries

would make strained efforts to ensure minimum

derogation from the freedom of expression, others

may take advantage of the situation to silent dissent,

opposition, and the media (WiltonPark, 2017, p. 6).

On the other hand, even those who may not be

interested in silencing some voices cannot avoid

placing some restrictions on the freedom of

expression to curtail fake news. The laws and policies

fashioned by several countries to fight fake news

might have varying effects on the freedom of

expression depending on the contents of the laws and

the enforcement mechanisms. For instance, under the

German law, contents might be deleted which some

would consider an infringement of their freedom of

expression, especially where it is not clearly illegal.

This is reflected in cases where individuals had their

statements deleted or their accounts suspended for

what they considered protest, but viewed as hateful

statements (The Economist, 2018). As a result, social

media platforms are seen to have been subjected to

censorship.

Therefore, even where the laws are not

overbearingly restrictive, placing the burden of

determining the desirability or otherwise of contents

on the social media companies is bound to have

multiple effects on the freedom of expression. First,

because of the huge fines involved, these companies

are bound to be more concerned about the revenue

they will lose if they are found wanting. As a result,

they are more likely to delete contents that might not

actually have violated the law just to avoid the

possibility of penalty. Therefore, the circumstances

under which the social media operators decide

whether to delete content or not motivate clampdown

on debatably legitimate expression (Human Rights

Watch, 2018). This is even more disturbing when

considered from the perspective that even judicial

bodies, with all their expertise and experience find

these decisions challenging because they require

reasoned and informed assessment. Flowing from this

is the fact that the decisions of the social media

companies are not subject to judicial review which

literally translates into having an unrestricted

censorship. As a result, individuals may have their

expressions censored, and their accounts blocked

without recourse to any judicial process. Invariably,

their freedom of expression has been left in the hands

of non-judicial and privately paid individuals. On this

aspect, the Malaysian law on fake news might be said

to have established better checks on both government

and the social media companies as it incorporates the

judicial process (The Parliament of Malaysia, 2018,

s.6-8). On the other hand, people having their

statements censored and deleted will have the effect

of restricting their expressive nature because they will

be forced to subconsciously consider the possibility

of having their expressions or even their social media

accounts deleted. These worries are even more

serious under the Chinese, and Ugandan legal

regimes which specifically target false stories or

rumours. The effect is that the space and freedom

enjoyed by individuals on social media networks are

gradually being eroded by often vaguely worded laws

and policies which are chaotically enforced by profit

driven private individuals. In addition, such moves

might also have the effect of discouraging individuals

from using such social medias, especially after an

unfair experience which gives no room for appeal.

Looking at the other side of the problem however,

the proliferation of fake news on social media may on

its own have the negative effect of driving people off

such platforms, hence restricting or diminishing their

freedom of expression. For example, individuals who

have been bullied, harassed, insulted, or intimidated

online are less likely to freely express themselves on

these mediums again. In fact, this is the essence of

online incitements, hate speech, and false or fake

negative stories – to prevent the opponent from airing

his/her own point of view.

The regulation of fake news, as may also be seen

from the trends discussed above might have had more

straining effect on free speech as it requires what may

amount to censorship of news and expressions. It is

also more restricting on free speech because there is

clear difficulty in defining what amounts to fake

news, as well as in verifying the authenticity of

statements. Consequently, several national courts

have found legislations aimed at proscribing fake

news inconsistent with the freedom of expression.

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Some of these include the decision by a Zambian

court which invalidated section 67 of the country’s

penal code law. The law broadly mandated the media

to authenticate the truth of all information, be it theirs

or from sources before going to press. In its ruling,

the court found that the law was suppressive and an

inhibition to free speech (Muchende, 2014). Just

recently, the East African Court of Justice invalidated

a decision by the Tanzanian government which

banned a local newspaper for publishing a seditious

story pursuant to an extant law. The court found that

the action of the government contravened the

country’s constitution, the ICCPR, and the African

Charter on Human and peoples’ Rights on freedom of

expression (The East African Court of Justice, 2018).

This however, does not mean that the freedom of

expression has no limitations; there are always

limitations to freedom especially when it affects the

right of others or the peaceful coexistence of the

society. As noted by the UN High Commissioner for

human rights, regulating free speech within the

confines of the law and international human rights

standards “does not mean attacking free speech or

silencing controversial ideas or criticism” … it is

rather a recognition that the right to freedom of

expression carries with it special duties and

responsibilities” (UN News, 2017).

6 CONCLUSIONS

Several governments across all regions of the globe

have proscribed the spreading and sharing of fake

news. In some jurisdiction, such prohibitions are

often widely applied against all categories of users

ranging from the everyday social media users to

important dissidents or opposition, and the press.

While some of these legislations may have a far

reaching negative effect on the right of citizens to free

speech, others have made efforts to limit such

consequences. Hence, the German law categorically

excludes the mainstream media from the applications

of the law and directs its penalty at the social media

companies whose platform are used for dissemination

of the information. Notwithstanding, it leaves too

much power to determine the right of individuals to

freedom of expression in the hands of employees of

private companies whose primary concern is profit.

While the Malaysian legislation is textually

overbroad and more likely to be abused, individuals

are given the right to access the courts to determine

the veracity or otherwise of their stories and their

criminal liability. This position, if enforced by an

independent judiciary, has the potential to ensure

protection for the citizenry. Similarly, the Kenyan law

is to be enforced by the regular courts of the land,

though it is textually more overbroad, and is likely to

be interpreted negatively against the freedom of

expression considering that the law specifically

curtailed that right. In addition, the level of

independence enjoyed by the courts will determine

how these laws will be enforced, hence the need for

the contents to be textually clearer bearing in mind

the right of individuals to express themselves. It is

necessary therefore, that in drafting legislations to

counter the spate of fake news and the negative

tendencies it has in societies, that governments should

be cautious on how much free speech they must

restrict or even prevent in the process. Such laws

should be designed to ensure a genuine protection of

free speech, while at the same time prevent the

incidents of fake news, especially the kind that leads

to chaos and violence. There is the need to strike a

balance between the two competing demands:

protection of free speech and the promotion of

peaceful coexistence in societies. Clearly, nations

can learn from each other and use the strengths in

legislations from other jurisdictions to enhance the

viability of theirs. For instance, a lot can be learnt

from the German law which focuses more on the

social media companies, saddling them with the

responsibility to remove the contents in good time,

rather than unnecessary obsession with penal

provisions targeting individuals which may easily

metamorphose into censorship. On the other hand,

saddling employees of private firms with the

responsibility to determine the right of others might

not be a good idea because such persons are trained

and paid by those firms primarily to help them

maximise their profit.

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