Abstract
With the proliferation of peer-to-peer networks as a source of information, concerns on the accuracy of information shared have been raised, necessitating attempts by governments to regulate fake news. Kenya’s Computer Misuse and Cybercrimes Act, for instance, criminalises the intentional dissemination of false or misleading data. However, such regulation has resulted in a different set of concerns, particularly its potential to bring about undue limitation on the freedom of expression. In appraising the approach taken in Kenya of imposing liability on perpetrators, and that taken in some jurisdictions of imposing intermediary liability, the article posits that similar difficulties are faced in regulating fake news – the freedom of expression could be curtailed. This is fuelled by ambiguity in the definition of ‘fake news’. Consequently, this article seeks to find out if indeed, it is possible to regulate fake news while preserving the freedom of expression in Kenya. Further, the article delves into some of the effects the proliferation of fake news has had on the democratic process in Kenya, thereby requiring regulation. In doing so, it tackles fake news from two general conceptions: fake news as calculated disinformation campaigns by individuals for certain purposes, and fake news as an overarching culture of misinformation that enables the spread of false information. Regarding the former, it finds that legislative measures may prove sufficient. However, the latter requires a combination of non-legislative measures such as collaborative measure, awareness initiatives and fact-checking.
Highlights
With the proliferation of peer-to-peer networks as a source of information, concerns on the accuracy of information shared have been raised, necessitating attempts by governments to regulate fake news
Kenya’s Computer Misuse and Cybercrimes Act, for instance, criminalises the intentional dissemination of false or misleading data. Such regulation has resulted in a different set of concerns, its potential to bring about undue limitation on the freedom of expression
In appraising the approach taken in Kenya of imposing liability on perpetrators, and that taken in some jurisdictions of imposing intermediary liability, the article posits that similar difficulties are faced in regulating fake news – the freedom of expression could be curtailed.This is fuelled by ambiguity in the definition of ‘fake news’
Summary
‘In the realm of religious faith, and in that of political belief, sharp differences arise. Hinged upon people being on the same page with regard to objective facts.[13] Once this common ground is taken away, decisions that are made may be questioned on the basis that they are not in consonance with the true will of the people.[14] This concern is especially valid where disinformation and misinformation crop up during electioneering periods, such as in Kenya.[15] As a result, there has been an effort to minimise the impact that fake news has on people by stakeholders such as Facebook.[16] A recognition of this in Kenya has led to a resolve by the US embassy to support the fight against misinformation.[17] social media websites have run awareness campaigns and attempted to regulate advertisement companies due to the potentially false information they may be spreading.[18]. The penultimate section outlines the possibilities of regulating fake news from both conceptions, while preserving the freedom of expression, before providing a way forward in the final section
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