The Internet represents a communications revolution. It makes instantaneous global communication available cheaply to anyone with a computer and an Internet connection ... the Internet is also potentially a medium of virtually limitless international defamation. Barrick Gold Corporation v Lopehandia, 2004 CanLII 12938 (Ont. C.A.), (2005) 71 O.R. (3d) 416 (CA.) With the advent of the Internet, popular social media platforms like Facebook that averages 2.19 billion active users monthly, Instagram, 1 billion active users monthly, Twitter, 337 million active users monthly and whatsapp, also owned by Facebook that has 1.5 billion active monthly users, have changed the way information is disseminated and read; instantaneously and perpetually.
Almost all Internet users now inter-relate with social media in some way. Some of us contribute new content while others prefer to simply browse it and occasionally post comments. Whatever the case, social media has had a huge impact on the way we use the Internet to socialise, educate ourselves, do business, and so much more. The popularity of these sites has turned information/data sharing and leveraging into a multi-billion dollar industry that is even more profitable than oil.
Although such platforms are credited for disseminating information and promoting debate, they can also be a source of negative speculation, fake news, libel and inadvertent promotion of subversive content. To put all this into perspective, if Facebook was a continent, it would be the world’s second most populous continent behind Asia, that has 4.4 billion people.
In this “online continent”, information is shared among these 2.19 billion people with a click of a cursor/key and a company’s reputation can be destroyed in an instant through a drunken post, an anonymous email, fake news or a “trigger-happy” tweet. In 2013, $130b in Associated Press’s (AP) stock value was wiped out in a matter of minutes following an AP tweet about an “explosion” that injured Barack Obama. AP later tweeted that its Twitter account was hacked and the stock prices steadily recovered. In Kenya and Nigeria, the data mining company, Cambridge Analytica (CA), was accused of manipulating voters by curating fake news and videos that targeted profiled social media users. In Kenya, the videos warned targeted social media users that a victory by Opposition leader Raila Odinga would lead to disease, starvation and terrorism.
In Nigeria, a UK newspaper, The Guardian, reported that Israeli hackers provided Cambridge Analytica with President Muhammad Buhari’s personal emails. The e-mails that included information about Buhari’s ill health and medical records, were leaked in order to dissuade voters and to weaken Buhari’s campaign. All those examples show how valuable data can be and the extent to which social media can be used to manipulate and influence people or to destroy the reputation of a person or business. Laws on defamation have since the days of the Magna carta evolved to protect reputations while keeping up with the changing times. Posting and sharing libelous fake news/content on social media can be actionable as online defamation. Section 179 of the Uganda Penal Code Act (PCA) criminalises the publication of defamatory content.
The PCA, in essence promulgated the need for responsible communication. Commonwealth courts have extended the need for “responsible communication on matters of public interest” to defamation, not just to journalists, but also to bloggers and online posters. In the recent English case of Flood v Times Newspapers Ltd., a police officer was accused, in a newspaper article, of taking bribes from Russian exiles with criminal connections. The article was printed in the paper edition of the Sunday Times, and was also made available in its entirety online. About a year after the article was first published, a report cleared the police officer of any wrongdoing and held that online archive of a story must be updated to take account of exculpatory developments.
In Uganda, ISP liability is provided for under PART V of the Electronic Transactions Act 2011. Section 30, suggest a “notice-and- takedown” requirement on ISP’s to remove defamatory/infringing content once they receive notice of it. Online pages, blogs and newspapers world over have been found liable for failing to remove defamatory posting once they were made aware of the content.
Mr Muhangi is a partner - Technology, Media, Telecommunications & Intellectual Property KTA Advocates.