In May 2020, a 24-year-old Ghanaian man was remanded for allegedly spreading misinformation on Covid-19 via his social media. In the video, the offender was heard stating that the pandemic was a hoax and inciting the public to defy the stay-home government directive at the time. Despite his explanation upon his arrest, that the video was an upcoming skit, his actions led to charges for false communication and an assault on a public officer contrary to the Electronic, Communications, Criminal and Other Offenses Act.
In essence, people who use information to ignorantly or maliciously deceive others, do not only cause harm to the receivers of the information but also to themselves. Although they may not be aware of it, there are legal penalties for spreading misinformation, regardless of the intent.
In Ghana, the laws governing media freedom and misinformation are stated in the 1992 Constitution of Ghana and Acts of Parliament, and ignorance of these laws does not exempt one from facing its penalties.
The laws governing misinformation in Ghana
It is paramount, therefore, that every citizen knows the laws governing misinformation in Ghana in order to avoid using their freedom of expression and freedom of other media irresponsibly.
- The 1960 Criminal Offenses Act 1960 (Act 29)
This Act specifies that any false publication that has the tendency to cause public unrest is a misdemeanor. It adds that ignorance of the falsehood of the publication is not a defence unless the person proves reasonable measures that were taken to verify the content prior to its publication. The sender or forwarder of any false communication is without any excuse even if the person was not the originator of the message.
Section 208 (1) states:
“A person who publishes or reproduces a statement, rumor or report which is likely to cause fear and alarm to the public or to disturb the public peace knowing or having reason to believe that the statement, rumor or report is false commits a misdemeanor”
And Section 208 (2) states:
“It is not a defence to a charge under subsection (1) that the person charged did not know or did not have reason to believe that the statement, rumour or report was false unless it is proved that prior to publication, that person took reasonable measures to verify the accuracy of the statement, rumour or report.”
- Electronic Communications Act 2008 (Act 775)
This Act specifies that it is offensive to knowingly send false communication which has the potential to put the safety of people at risk or be detrimental to the efficiency of life saving services, via any electronic means. By engaging in the act and subjecting oneself to the legal test in section 76, that person would be liable for the offence.
Section 76 (1) states:
”A person who by means of electronic communications knowingly sends communication which is false or misleading and likely to prejudice the efficiency of life saving services or to endanger the safety of any person commits an offence”.
Section 76 (2) states:
“A person is taken to know that a communication is false or misleading if that person did not take reasonable steps to find out whether the communication was false, misleading, reckless or fraudulent.”
Consequently, the offence is a summary conviction fine of no more than 36,000 Ghana cedis or to a term of imprisonment of not more than 5 years or both.
This means that based on the charges, the penalty for the crime of spreading fake news in Ghana is either a fine of GHS 36,000 or serving a prison term of 5 years or facing both fine and prison penalties.
What about freedom of expression? What about media freedom?
The 1992 Constitution of Ghana (Chapter 5, Article 21) of the 1992 Constitution provides all persons the right to freedom of speech and expression including freedom of the press and other media. Additionally, Chapter 12 of 1992 Constitution of Ghana is devoted to freedom and independence of the media, where Article 162 of the Chapter highlights the freedom and responsibilities of the media.
It is, therefore, noteworthy that Ghana’s 1992 Constitution which provides freedom of the media also stipulates responsibility of the media, as Zakaria Tanko, a legal and media expert explained to Dubawa.
“Several schools of thoughts on legal matters agree that freedom is not absolute; freedom is defined by certain laws that govern that freedom,” Tanko stated.
As a result, concerning the freedom of the media, Chapter 12, Article 164 of the 1992 Constitution stipulates that the freedom of the media is however subject to laws that protect the reputation, rights and freedom of other people in the society.
It states that:
“The provisions of articles 162 and 163 of this constitution are subject to laws that are reasonably required in the interest of national security, public order, public morality and for the purpose of protecting the reputation, rights and freedoms of other persons.”
Chapter 12 Article 165 adds that:
“For the avoidance of doubt, the provisions of this chapter shall not be taken to limit the enjoyment of any of the fundamental human rights and freedoms guaranteed under chapter 5 of this constitution.”
Thus, freedom of speech expression, of the press and other media does not translate to freedom to irresponsibly produce content that is false, dangerous, alarming, causes public unrest and threatens others’ fundamental human rights in society. An irresponsible use of such freedom could subject the offender to its consequential legal charges.