IGF 2022 Day 2 Lightning Talk #43 LEXOTA - Laws on Expression Online: Tracking and Analysing Responses to Online Disinformation in Sub-Saharan Africa - RAW

The following are the outputs of the captioning taken during an IGF intervention. Although it is largely accurate, in some cases it may be incomplete or inaccurate due to inaudible passages or transcription errors. It is posted as an aid, but should not be treated as an authoritative record.



>> MODERATOR: Hello?

Great. I hope everyone can hear me okay both online and in the room. Can I also just check that Marystella can be heard through the zoom link?

Can you say hello?

>> MARYSTELLA SIMIYU: Hello. Hi, everyone. Can you hear me?

>> JACQUELINE ROWE: We've lost -- we can't hear you right now. Perhaps our tech person can help.

>> MARYSTELLA SIMIYU: I think I am talking because I can see the transcription happening, actually.

>> JACQUELINE ROWE: That's great. We can hear you now in the room as well. That was just the speaker was turned down. Brilliant. Good afternoon, everyone. We'll kick off. My name is Jacqueline. I worked in an organization called global partners digital. We work across a number of digital rights issues and we're here today to talk about a consortium project we're taking part in focused on government responses to disinformation across Africa. I'm joined by my colleague Marystella Simiyu who is an online moderator. Works for the center of human rights in South Africa. And I'm glad to see we have lots of participants online and some here in the room as well. Thank you, all, for coming.

Maybe if I can have that first slide. One of the things we'll be talking about a lot today is this new tool that we've developed as part of this project work. The tool is called LEXOTA as you may have guessed from the session title. And at any point in the session, please do go and check the tool out. Access it at LEXOTA.org. We'll be explaining a bit about what it's for, why we've built the tool and how it's being used by advocates in the region. These talks are designed to be interactive and with audience participation. Please do feel free if you are online, put questions and comments in the chat at any point. And we'll also have some time for Q and A at the end. And we'd also love to gather audience participation and feedback. We have an mentimeter poll for the audience to feed in. The first question to get you thinking before we dive into the session is is imprisonment ever a response to someone sharing disinformation online. That's a multiple question. You can say, yes, no or it depends. The second question is what do you think rights respecting response to online disinformation looks like?

If you'd like to contribute, you can scan the QR code or go to menti.com and use the code that's there on the screen. And we'll also take some answers from the floor as well when we come to the discussion at that point as well.

If I can have the next slide.

Just briefly what we're going to do today. We only have 30 minutes. Going to rush through welcome and introductions which I'm doing now. I'll hand over to Marystella who will give us background of the types of trends we've seen in government responses in the recently on and recent years and how that links to international human rights law. I'll take the mic back and do a quick demo of the tool how we analyze these laws and law enforcement actions and how we've based that assessment around the three-part test on permissible restrictions as laid out in international human rights law. And then at the end, really great to have questions and insights from the floor. So I'll pass it over to Marystella.

>> MARYSTELLA SIMIYU: Good afternoon, everyone. I'm not able to switch on my video. I don't know what's happening on that end. I guess you'll just have to listen to my voice. Thank you very much for the introduction. I work with the center for human rights at the Univeristy of Pretoria. I'm just going to dive into it. I'm looking at who is LEXOTA?

Why did we develop LEXOTA?

As a starting point, we can all agree this discussion about this information is one we've been having from time to time. We know the impact of this information. We know the impact of this information on our elections. Negatively, can increase polarization. In certain instances, it does cue public decision making process as well as public debate. Can promote hate speech and can lead to violence and death. So we can agree that this information is an issue that needs to be addressed in society. And one of the Stakeholders involved in addressing this information -- we tried to look at what are laws that are coming up. Have been implemented with regards to this information.

>> JACQUELINE ROWE: I'm so sorry to interrupt. Apparently, you can turn your video on now. In case you want to be seen as well. Brilliant, we can see you now. Carry on.

>> MARYSTELLA SIMIYU: Thank you for that. So what we were looking at with LEXOTA is what laws are coming up. What government actions have been implemented with regards to disinformation. And really in international laws and standards, states do have obligations in international law. As well as the African chapter on human and people's rights. Two instruments that have guarantees and protections when it comes to freedom of expression. Most states have obligations. So, for example, with the ICC PR, only south sudan is not a member stage. For the African chapter, only Morocco is not a member state. And so with LEXOTA, in terms of the trends that we saw is that there's this increased criminalization of falsed news and in violation of international human rights law. And in particular, the declaration on principles of freedom of expression and access to information which is a software instrument. And we saw these provisions in these laws with regards to disinformation broadly phrased. And open to wide interpretation. When we looked at government action what was concerning is these laws are used to target certain critical voices of society. Civil society organizations. Human rights defenders. This opposition and candidates. Critical voices that are used to hold accountable. With the use of these laws and actions when it comes to this information and targeting these groups that play an important watch dog function in society, we see the risk of self-sufficient happening in a number of countries in Africa. We hope with LEXOTA given analysis we are taken in terms of what laws, what actions our government is taking in this space, it will be a reference point for advocacy for human rights defenders to actually engage with policy makers. To see what laws and what regulations we have. How can we hold our states accountable and the obligations of international law to ensure regulations with regards to this information as well as actions taken by states and they are rights respecting. And how do we ensure given our different context, we engage positively with our state actors in such a way that is not restrictive. We've recently been undertaken advocacy action engaging in civil societies in different countries. What we see is understanding this information, how we approach this information. And actually tackle this information in our countries. And it seems that the punitive ways, the most common way of going about it. In many instances, it's not rights respecting when you look at it. So through LEXOTA, we are hoping it presents the certain points for civil society actors as well as other Stakeholders just to engage positively with state actors to ensure whatever approaches are being put in place with regards to addressing this information are actually rights respecting.

With that, just a bit of a snapshot of LEXOTA. The tool that we have. And what we are discussing today and hoping we'll have this rich discussion today around government approaches and how it can be rights respecting. With that, hand over the floor. My session is quite short. Looking forward to your input on this. Thank you very much.

>> JACQUELINE ROWE: Brilliant. Thank you. And I'm glad we got your video working. Thank you for that really helpful overview of some of the background to why we've been doing this project and why we think this tool is important.

I'm going to show you a bit about the site. This is the web version. It's available through mobile browsers as well. And just to highlight at the start of it that this is very much a joint project between not only global partners digital I work for and the center for human rights Marystella is representing. And article 19 west Africa. CIPESA and PROTEGE QV. The tool is built around this consortium model of information sharing, comparing the state of play across different countries in the region and working together to advocate for the rights respecting responses. And we might maybe come back to some of our partners in the room to share their perspectives as well in the discussion section. Let's dive right into the tool. This is the home page. It gives you snapshots of the types of laws in the moment. What I want to do first is looking at the comparison page where we can compare all of the different laws in the database. Across all of the 48 countries we've looked at, just under 100 laws at present. Which includes some kind of restriction on the sharing of disinformation either off line or online. Could abreplied to an online context. So we have all this data. We've included a link to the text of each one of those laws there. Can quickly go and see the text itself. And this is what LEXOTA is really designed to do. Provide an analysis of our assessment of how compliant that law is with the three-part test for freedom of expression. We do this through six questions. Going to see if I can zoom in a bit. Six analytical questions we apply to every single law. I won't go through them in too much detail now because of time. But we can discuss the methodology more later if that's of interest. Is there clarity over the precise scope of the law?

Is it clear to a user what peach or content is restricted or is it legal?

The answer is no because by its nature, this information of false news is hard to define. It's quite a subjective content category. And quite difficult to make it specific in the same way that a defamation restriction requires material harm caused to someone else's reputation or financial gain. With the definitions it's much less clear and much harder of the content. The second question is the speech or content within the lower restricted only when it's in pursuit of legitimate aim. Concrete public harm or some kind of infringement on the rights and reputations of others. The situations which you could restrict disinformation and nothing short of that. And not a legitimate aim. Do any restrictions account for instances where any individual reasonably believed the information to be true?

This is important because lots of people might share false news without even realizing it. If they are subject to the same penalties as someone trying to create information, then that creates a real problem for freedom of expression. And the response to that would not be to criminalize that person's actions but look at media literacy through training initiatives. The fourth question are determines of whether speech or content is disinformation made by an independent and impartial judicial authority. This is important so people know what counts as disinformation and what doesn't. Laws that allow government bodies or government ministries to be making those determinations is much more of a risk of that content type being applied to political criticism. And that law being used for the purposes of political censorship. The fifth question is to do with the proportionality of the FRNGS sanctions. Are they proportionate or likely?

Sometimes this isn't always clear from just reading the legal text itself. Why we include not just the laws themselves but instances of law enforcement action that's been taken under those laws which gives us more of a sense of it might say a penalty of up to three years in prison, for example, that should only be used in the most egregious cases. If it's being used if a journalist says something online, we can say that's not a proportionate penalty and fail. The element of the three part test. The final question is to do with intermediaries. We've put this in because in most of these laws, it's not applicable. They don't mention it and don't refer to it. Important thing to think about. When governments do make them liable for online disinformation, really incentivizes over removal and over broad interpretation by the platforms which results in restrictions of speech in its own right. We could probably have a whole panel discussion on that alone. Maybe just to -- I thought I'd do a quick example. I thought we'd look at Cameroon. One of our target countries. We have Avis here. Do jump in and correct me. But you can see for each country profile, we don't just answer those yes/no responses to each of those questions I just talked you through but we have a text-based country profile which starts off with introduction summarizing the laws in the scope of the tool. In this case, we have the 2010 law on cyber security and also have the penoal code. Both of these include restrictions applying to false information. A quick look at the one for the penoal code. You can expand the profile to get the details on the law. For each one of those questions, we have not only the answer but an explanation of our analysis of the law. There are two relevant sections. Section 113 and 240. And we basically look at how those provisions are describing false information. One of them says false information liable to injure public authorities on national unity. Refers to anyone who is publishing or propagating news without being able to prove it's true or prove they had good reason to believe it is true. And our assessment is these sections fail to provide clear enough guidance for individuals to conform their behavior in accordance with the law. Not clear what would fall in the scope. That information would be liable to injure public authorities. And not clear what the threshold would be for being able to prove the truths of the peaks of information. And so these more vague definitions beyond not allowing an individual to know what they are meant to do under the law. They provide overly wide degree of digression. Which as I mentioned earlier increases the risks of the law being used for political censorship.

I won't read through the whole profile. Just to give you a little flavor of how we do this analysis and the detail we go into in the tool. And this is available for each of the 100 laws included in the data set. It's a really rich resource of information of legal analysis that advocates in these countries where provisions are in place can use to help them critique and push back against some of the more problematic provisions and advocate for a more rights respecting response.

What I might do. We have ten minutes left of the session. I don't think we've had any questions come through online. But I might open the floor for questions, comments, feedback, from our online participants or people in the room. It would be great to hear your views on these issues as well. We have one in the room.

>> I lost my voice. [ Speaker voice too low ] also the interpretation of the lawyer. Sorry, I know you can't hear me. [Inaudible].

>> JACQUELINE ROWE: Perfect. Thank you. I don't know how much of our online participants could hear. Really useful intervention from our guest here who was saying, firstly, it's positive to see a tool developed in Africa which has not been the focus of previous legal projects. She was also saying there's an on-going project where she works is looking at a similar mapping and research project. But focused on intermediary reliability. And pointing out sometimes during this kind of analysis or assessment is very hard to do in an objective way based on an abstract piece of legal text. It's then case law and how the law is being used is important for that assessment. Why we think this is so important because it provides us with greater understanding of local context in particular countries. Sadly, not all of the countries. We're not a partnership of 48 different countries.

And we also really welcome -- the tool is driven by crowd source data as well. We have this contact section of the tool. If they have information or disagree with analysis or evidence to suggest it's not being used in this way, then we really value people sharing information through that. And that's one of the ways we can follow up and ensure it's more accurate and more up to date. So thank you for that comment.

Maybe I will ask some of our partners in the room to share if anyone would like to some experiences of the project elements that have been useful. Elements that will be improved as we continue or any insights you have from advocating on these topics in your local context. Any experience you want to share with the group as well. Avis, you look like you want to speak.

>> As a lawyer, the tool is model user for your work. Not only for the lawyer but the human right defenders, governments themself. And for civil society. So you can go through the LEXOTA. I don't know what country you are. Yeah, from Kenya. Can go through the LEXOTA, go through the law and watch these different points for civic space. So it is a good thing. And I think it has set points and user friendly. Oh, that's good. Thank you.

>> JACQUELINE ROWE: Thank you, Avis.

>> Thanks. Always nice to see you. So from CIPESA's perspective, one of the things that stood out is with the on set of the pandemic seeing how many laws are passed related to COVID-19. We're on the look out to see how many of these laws are going to be repealed or not. How many of them are going to be repurposed or not. That's something we are keeping an ear on the ground for to see how things pan out in that regard. It's also quite worrying to see some of the problematic laws are being reviewed and amended to be worse which is the case in Uganda's misuse and cyber crime's act. So as they have said, remains a very good advocacy tool. The onus is on us to keep abreast of all the relevant. That's a resource that's live. Thanks.

>> JACQUELINE ROWE: Thank you so much. One of the things that maybe picking up on is different needs of different communities for very in-depth legal research. Might be the need for more detailed work and analysis and comparison. For human rights defenders or advocates that don't have a legal background, the degree of simplification that's necessary in the database is sort of a plus or something that makes it more accessible as well. Maybe we can chat more about that after the session as well. I've seen a comment from Guy in the chat who questioned is there a place in the LEXOTA tool or template to cover actions that are arbitrary or the ones overturned by a court?

And he references Nigeria's Twitter ban. This is an interesting point and something we talked about as to whether we include things like case law within the database and how broad we go in terms of things we're including. The decision we've made so far is to keep the scope narrow so we only analyze laws or regulations that impose a specific restriction on someone sharing false information. But I think you raise a good point, Guy, it doesn't capture the full picture. And whilest the Twitter ban affect other content types, it was by a desire to control this information in the country. So I've got a colleague taking notes and maybe that's one of the takeaways we can go in and think about as well. We've got a couple minutes left. Maybe Marystella do you have any final comments or thoughts you'd like to share or things this discussion raised for you. I hope you could hear the comments in the room okay.

>> MARYSTELLA SIMIYU: Yes. We can hear the comments very well. Thank you very much for the intervention. Actually, maybe we should also mention there's a section on resources on the page where we do post any developments in the field. Blog posts and maybe interesting articles around disinformation around this space in subSehara and Africa. Would be great for them to be included there just for anyone visiting the site. Then you have a resource to look into that would be great. It would be great also to hear the results -- I don't know if you've tracked that so you can see what other results of the menti. Otherwise, it's been a great talk.

>> JACQUELINE ROWE: We didn't have any solutions. I think it's a very difficult question to ask. And completely appreciate that's out of scope. We did have some responses on the first question which was is imprisonment an appropriate punishment. 75% of people said no. And 25% of people said it depends. That gives us a snapshot of people in the room. Did you have something to come back on about the rights respecting response?

Maybe you have ideas there.

>> MARYSTELLA SIMIYU: I was actually very interested in the results. It's a contentious issue even in this space when you talk about regulation, criminalization around disinformation. When you ask is imprisonment proportionate sanction, we see it depends. And the question which I think will just be a food for thought for everyone. Leads to death or serious injuries as they are proportionate punishment and way of addressing this information. Never quite gotten a satisfactory answer. I'll also leave it for a food for thought. I wonder if Guy has any feedback on that. I know he writes a lot around this particular aspect. Otherwise, thank you very much.

>> JACQUELINE ROWE: Thanks. Guy, would you like to come in at all on that point?

>> Can you hear me?

Okay. Great. My thinking about this question of harms is that harms should be link today human rights. They would be harms to dignity. Harms to reputation. Harms to safety. Harms to public health. And shouldn't take harms as harms to the rights of children. Shouldn't take harms as if it was a stand alone and obvious question. So I think it's important to assess laws in terms of how they are aligned to a breakdown of which are being harmed in particular. You get into a situation where it harms your sense abilities or harms your political interests. And I don't think anybody wants that. Some people do want that. And then I've put in the chat a link to this that in assessing proportionality and more, the necessity for restrictions people will know about the plan of action. And I think that's quite useful in terms of seeing to what extent this is nuanced. Does take into account what Susan Benesh calls dangerous speech as opposed to generic speech. But not reaching the threshold of danger in a particular context. Seems to me it's important one does that. Law can be set up to be quite absolutist and not take context into account. Those are my remarks.

>> JACQUELINE ROWE: Thank you so much. That was very insightful. Gives us a lot of food for thought about other resources that might be needed to supplement the data. And other ways we can share a bit more clarity on what an appropriate legal response looks like and the types of thresholds that should be in place. Thank you for that. I'm going to wrap up our session now. Feels like the conversation has just begun but maybe we can continue some of these points off line. Thank you so much to Marystella. And the tech team wonderful as well. Thank you for joining today and look forward to connecting with you in different spaces.