The change in government in Ethiopia has garnered people unprecedented civil and political liberties. In previous years, when the press and broadcast media were censored, social media gave Ethiopians, like many around the world, the autonomy to speak, organize, mobilize, and challenge the government’s narrative. However, amidst all of these changes, one thing has remained the same: authorities are still challenging the relative “freedom” social media platforms have enabled. While the previous government surveilled, blocked, and punished dissenting voices online, the current administration under Prime Minister Abiy has enacted the Hate Speech and Disinformation Prevention and Suppression Proclamation which grants the government authority to fine and imprison citizens for their social media activity.
The flourishing of hate speech and disinformation online can disrupt democratic debate and practices, facilitate gross human rights violations, and further marginalize minority groups. Ethiopia, even with one of the lowest internet connectivity penetration rates in the continent, is not immune to this phenomenon. Accordingly, the rationale behind this legislation is that harmful speech and disinformation online “pose[s]” a threat to “social harmony, public stability, national unity, human dignity…” in the country. Yet despite this articulation of a legitimate aim, the Proclamation may do little to address these societal problems, instead serving to restrict freedom of expression, curtail access to information, stifle the press, and silence dissenting voices.
Flawed legislation like this often emerges from a flawed process. Legislation that seeks to regulate people’s free expression online should be based on evidence. In this case, the legislation ought to have been grounded in research on the real-world impact of harmful content online and how organized disinformation can influence discourse, as well as a consideration of whether existing provisions in the criminal code address the root causes. Instead of undertaking or relying on such research, it appears the government has made online hate speech an easy scapegoat for violence that may have deeper causes, while pushing through new legislation that increases its power to censor.
Unlike in other drafting processes, during the drafting of this Proclamation, the government and the legislative body were eager to get feedback from civil society groups and other actors. There were at least three consultations processes that gathered different stakeholders, including Access Now, to comment on this legislation. Through these consultation processes, the draft legislation did improve.
For instance, after civil society provided comments, lawmakers added to the Proclamation a new term, “deliberate action,” and definitions of other terms, although they are not sufficiently clear. They also clarified that “liking” or tagging of content deemed illegal is not a criminal offense. Finally, they reduced prison terms and gave courts more room to adjust penalties according to the offense.
Although we welcomed these improvements, the Proclamation is still flawed in ways that will create a chilling effect on the fledgling freedom of expression and access to information in the country.
Broad and vague definitions, lack of clarity
One problem is that the legislation defines hate speech as “speech that deliberately promotes hatred, discrimination, or attack against a person….” That definition is vague and lacks objective clarity. It also defines disinformation as “speech that is false, is disseminated by a person who knew or should reasonably have known the falsity of the information and is highly likely to cause a public disturbance, riot, violence or conflict….” That is broad. These two definitions anchor the Proclamation, opening up loopholes for the arbitrary application of the law and creating a breeding ground for human rights violations.
That’s not all. Even after many revisions, the legislation contains an overly broad definition of social media and it is still not clear whether sharing purportedly false messages with a closed group on messaging apps would constitute an offense. While the law has clarified that engaging in ordinary social media activities such as tagging or liking certain content does not make you a criminal, it’s not clear whether re-sharing or re-posting the content would be illegal.
Increased liability and excessive punishment for those with many followers
The Proclamation includes provisions that increase punishment for individuals and online groups that have more than 5,000 followers. Not only is this an arbitrary number and unnecessary, the provision does not take into account how social media platforms, content curation, and content governance work. Individuals do not have control over the number of followers they have. The threat of excessive penalties for those with a certain number of followers will serve to target and disproportionately affect the free expression of bloggers, journalists, activists, and human rights defenders.
Make no mistake: the penalties are not proportionate. Fining or incarcerating people simply for sharing alleged hate speech or disinformation, when such sharing may not even have an effect on other people’s behavior, is excessive and not in line with international standards and recommendations. It would be more appropriate to address hate speech and its societal roots through non-punitive measures such as digital literacy campaigns, education, and public messaging.
In addition, while the legislation defines disinformation as “false information disseminated by a person who knew or should have reasonably have known of the falsity of the information,” in today’s digital world, “deep fakes” and manipulated content make it hard for people to determine what is true and what is false. The legislation places this burden on citizens without providing them the digital literacy resources to make this kind of evaluation.
Pressure on platforms to take down content quickly, outside of legal process
Under the terms of the legislation, social media platforms are obliged to take down content that’s deemed false or harmful within 24 hours of being notified. However, the legislation is not clear on who provides this notification: there is no authority named, meaning that the platforms could be expected to take down any content that an individual or government entity reports. This improperly delegates judicial functions to social media platforms and fails to provide people with a process for remedy if their content is taken down in error. First, any order to take down content should come from a competent judicial authority. Second, users should have the ability to appeal a decision and should have the right to receive written notice of why and under which legal provisions their freedom to speak was curtailed.
There are other aspects of the legislation that impact its potential for efficacy. The legislation is more likely to increase the pressure on local content creators, video streaming services, and indigenous platforms to censor users than it is their international counterparts, simply because they are easier to reach.
In addition, the authority that’s given to the Ethiopian Broadcasting Authority (EBA) is not necessarily to be the arbitrator of truth or enforce the legislation but to serve as a spectator providing yearly reports. Other than issuing reports to the public and government, the EBA does not appear to have the power to force social media platforms to take down content that’s deemed harmful, and it’s not clear how it will monitor compliance of social media platforms.
Moving forward, a few things will determine whether this legislation can serve a legitimate aim instead of simply limiting people’s free expression in an arbitrary and highly punitive manner.
First, the government is expected to draft directives to help with the implementation of this legislation. This directive could define some of the terms that are missing in the Proclamation and thereby limit its negative implications for freedom of expression. However, there is also a chance it could go further to threaten people’s rights, institutionalizing the mass surveillance of social media users in a bid to control what information people share online.
Second, how the legislation is implemented and whom it targets will also depend on how the attorney general decides to interpret and enforce the law. Proper training for prosecutors, not just in federal cities but in other regional states, will be essential to help protect dissenting voices.
Third and most important is ensuring an impartial and objective judicial infrastructure, so that people can put faith in this legislation and how it will be used.
Unfortunately, it does not look good so far for this troubling legislation, and that is especially frightening during COVID-19. Only a few days after the Proclamation was enacted, with its broad and vague definitions, increased liability for platforms and people with a large number of followers, and harsh penalties, a journalist, Yayesew Shimeles, has been charged for allegedly sharing false information about the government’s COVID-19 response. Since he has more than 5,000 followers, if he is found guilty, he could face the maximum fine and prison sentence. Unless this legislation is revised, this may only be the beginning of a chilling period for the free press in Ethiopia.