Kenyans publishing fake news risk being fined sh5 million or jail term of two years, the Computer and CyberCrimes Bill recommends.

The Bill’s report that is to be tabled before the National Assembly asserts that while there was objection to these fines as being too prohibitive, they are maximum sentences for which a court could consider the damage to the victims and severity of each offence in determining the punishment.

The report from the ICT committee to the assembly provides limitations to freedom of expression to false information, or misleading or fictitious data. It reads that intentional publishing of false or misleading information likely to propagate war, incite violence, advocate hatred or constitute hate speech shall be limited.

In addition, the limitation to advocacy to hatred includes ethnic incitement, vilification of others, incitement to cause harm or based on discriminatory grounds prohibited in the Constitution in Article 27 (4). These grounds include race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

Publishing of fake news that also negatively affects the rights and reputation of others will also land you in trouble.

These provisions are in clause 12 of the Bill.

Before the report was published, Article 19 had objected to the entire clause asserting that the sweeping criminalization of “false publications” would effectively appropriate to authorities the role of determining “truth” in public discourse. This would severely curtail independent journalism, civic engagement and other activities essential to a democratic society.

Article 19 added that the vague prohibition of “false” and “misleading” data is highly subjective and prone to abuse, providing authorities with a pretext to prosecute reporting, criticism or commentary they disagree with or find controversial. The prohibition on publication of “fictitious data” could also be broadly interpreted to penalize writers, bloggers, artists and anyone publishing satirical or comedic material online.

In addition, the prohibition against misinformation also penalized the inadvertent publication of inaccurate information, holding online users to unrealistic standards of factual accuracy under the threat of grave criminal penalties. “This prohibition is likely to disproportionately chill journalists, civil society, and others engaged in reporting and analyzing rapidly unfolding news stories and other fast-paced developments”, the analysis authored.

They recommended that government should “explore less intrusive measures for addressing disinformation and propaganda, including providing subsidies or other forms of financial or technical support for media and news literacy programs and independent and human rights-compliant mechanisms for media self-regulation (such as press complaints bodies or ombudsmen).”

Commenting on the new changes, Ephraim Kenyanito from Article 19 said while the revisions are better, they still fail to meet international standards especially in criminal liability.