Right to freedom of expression is fundamental to our liberty

Around this time last year, an activist was arrested for offences allegedly committed under the Computer Misuse Act (‘the Act’). Specifically, her use of certain language on social media platforms, including the now infamous phrase “a pair of buttocks”, was allegedly contrary to this law. Some might argue that the language she used was uncalled for, provocative, insulting, disrespectful or even offensive. That it might have been. However, was she legitimately exercising her constitutional and human rights by using this language?
The right to freedom of expression is guaranteed by our Constitution. Every person has the right to freedom of speech and expression, which includes freedom of the press and of the media. With no freedom of expression in the various forms it might take, including satire, we cannot publicly debate on critical issues as they affect us as citizens.
Nevertheless, our right to freely express ourselves is not absolute; it is possible that the law may prescribe specific situations where our speech may be justifiably limited. Such situations may be, for example, where it is likely that exercising our freedom of expression will cause public disorder or a threat national security. Criminalising propaganda for war or advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, will usually be aimed at dealing with such situations. Other possibilities where the right to freely express oneself may be restricted include where expression might harm someone’s reputation or dignity, as is attempted by provisions curbing online harassment and cyberbullying under the Computer Misuse Act.
It is essential that measures that limit freedom of expression are made pursuant to a clearly defined law, which has safeguards against arbitrary application and that they are necessary and proportionate to achieve their purpose. The measures should, therefore, be able to achieve their purpose, which is to protect public order, national security or an individual’s reputation or dignity, using the least restrictive means possible.
The Computer Misuse Act as it limits freedom of expression is a national law whose provisions were passed for a legitimate purpose. In recent times, online harassment is rife, especially as it affects women and teenagers and it is, therefore, necessary for expression to be limited so as to protect individual’s reputation or dignity. However, can we say in doing so, the measures employed by the Act are proportionate to the aim to be achieved? Additionally, are there safeguards against arbitrary application of the Act? To answer this, we return to the case of a possible insulting or offending remark made online and whether the law in place to regulate these instances is adequate. Under the provisions of the Act, cyber harassment is a crime defined as the making of any request, suggestion or proposal which is obscene, lewd or indecent through any electronic communications devices, such as computers or phones.
Cyber harassment is also defined as a threat to inflict injury or harm to a person or to the property of a person. A person found guilty of cyber harassment is liable to imprisonment or a fine or both. Based on this definitions and the events that occurred last year, it may appear that the activist acted unlawfully. Indeed she was arrested on this premise.
However, as per International Law, it is clear that criminalisation of cyber harassment as provided by the Act, is not proportionate to the aim meant to be achieved by passing the Act. There are less restrictive measures that could have been employed so as to adequately address the potential harm that might arise from cyber harassment. This can be done by, for example, allowing for a civil claim for damages (through an action for defamation provided the requirements to file such a case have been met) rather than immediately resorting to the criminal law. In other words, allowing an individual to sue someone they believe has “cyber-harassed” them is more appropriate than immediately resorting to providing for a crime that may see the “harasser” imprisoned. It is neither necessary nor proportionate to provide for criminal provisions to redress a harm that can be adequately addressed through civil remedies.
Moreover, it cannot be said that this Act will not be arbitrarily applied. Cyber harassment is not clearly defined under the Act in a sufficiently precise manner to allow individuals to foresee when their behaviour might constitute a crime. This may see the potential misuse of the Act by the authorities; criminalising behaviour that is seemingly within the constitutionally protected freedom of expression as cyber harassment or rather, enforcing a blanket ban on all speech transmitted electronically. For instance, the Act criminalises the making of any request, suggestion or proposal that is obscene and transmitted electronically. However, who is to say what counts as obscene or lewd? Standards of obscenity, lewdness and threatening language will definitely differ from person to person. The definition is both vague and of wide scope, and as such, susceptible to broad application and misuse.
The right to freedom of expression, including where such expression might offend, is fundamental to our liberty as individuals. Any interference of this right should be carefully scrutinised and as such, laws that aim to legally restrict freedom of expression should be well-crafted and executed. Otherwise, any stifling to the freedom, even for alleged purposes of redress for offence caused, might be perceived as censorship.

Ms Tabaro works with the Institute for Human Rights
and Development in Africa in Banjul, The Gambia.
Twitter: agashat

We must not forget that while “we may disapprove of what others say, we should be able to defend to the death of their right to say it”. Herein lays the crux of democracy.