Dear sir

We met at the Ghana Report Summit on Thursday, August 1 2024 in Accra. It was under the theme “Dealing with Misinformation and Disinformation – Election 2024”. You were the lead discussant for the panel on “strategies to combat fake news”. I was on that panel. You said strategies to deal with misinformation and disinformation included police arrest.

Sir, journalism is in a quandary. Thanks to digital platforms and social media, the reach of news is like never before. Fake news is rife, negatively impacting democracies. Citizen journalism – where every citizen today is a journalist because of the mobile phone – has led to contentious news and a decline in public trust in journalism.

Fake news poses a threat to democracy, particularly the use of Artificial Intelligence (AI) to discredit factual information. It could have dire consequences for national security, and the image and reputation of individuals and organisations.

Arrest as a strategy for fake news

Sir, in my contribution, I disagreed with you on arrest as a strategy for combatting fake news. I submitted that the police had no business or responsibility in arresting anyone for fake news. I explained that fake news – which is misinformation or disinformation – is as a result of an exercise in free expression, which is a fundamental human right. Article 21 (1) of the 1992 Constitution states that “All persons shall have the right to . . . (a) Freedom of speech and expression, which shall include freedom of the press and other media.”

Let me be clear here: individual messages of hatred, racial discrimination, or coup d’état shared on digital platforms are not news items. News goes through a certain treatment and process; such messages do not and could be the subject of investigation. Nana Aba Anamoah, the moderator, asked an interesting question which contextualized my argument. She asked whether she should face no sanctions if she should publish that I am impotent.  

Sir, some institutions and processes deal with unfair and misleading publications. The National Media Commission (NMC) is one such; so is the court system. Misinformation, which Nana Aba’s question typifies, is an exercise in free expression: it is, often, an inevitable by-product of free expression. Thus, arrest in such cases constitutes an arrest of our fundamental human right to free speech, and the 1992 Constitution, which guarantees free expression.  

Also Mr. IGP, in our part of the world, the police and security agencies unfortunately serve as agents of those in power and do their bidding. They become weaponized against perceived powerless adversaries, and society in general. Arrest for fake news is often instigated by the powerful – the politician or businessman – against journalists for merely doing their job. I have been a victim of that in my career as a journalist. There are recent instances of other such arrests. Allowing the police to arrest people for fake news, as they do, could breed tyrannical and authoritarian governments, which a democracy can ill-afford.

Surprise interjection

Sir, you jumped into the panel discussion from the audience to say I was being sensational and pandering to “click bite” – I think you meant clickbait – when minds were at work. It left me wondering if I really understood sensationalism and clickbait, after almost 40 years of journalism and communication practice. In reality, I did none of that.

Forget the adulation from the former GJA president, Affail Monney, who supported you and declared you a journalism lecturer. The Affail I know did not mean it. Some panel members said, after you left, that arrest for fake news was problematic. They must be arrested for giving you “fake news (support)”, together with COP Maame Tiwaa Addo-Danquah, for emphatically saying that the three kidnapped Takoradi girls had been found when they were dead!

Sir, your interjection – you were not a panel member – truncated my arguments. I let go out of respect for your office and to avoid banter. However, police arrest cannot be a strategy for combatting fake news. The reasons include the following:

1. The courts are clothed with the mandate to handle fake news. Civil suits are preferable.
2. Determining fake news is not a job for the police. It must be left to those so trained.
3. News gathering relies on what is called authentic source – police, hospitals, law court, etc. Even authentic sources inadvertently provide false information. Journalists must not be arrested for that.
4. Cross-checking or verification have limits and offer no full proof against misinformation.
5. Freedom of expression is predicated on allowing everyone to freely express his or her opinion, because the public is discerning enough to tell between truth and falsehood.
6. Criminalising free speech is detested by enlightened and democratic societies. That is why the Kufuor Government expunged the Criminal Libel Law from the statute books.
7. We cannot have a democracy in which people get arrested for the inaccuracies – whether inadvertent or deliberate –  in what they say or publish.
8. Foreign investors and FDIs rely on environmental scan of the targeted country. Arrest for fake news is a turn-off for investors, and Ghana will be the loser for that.
9. Muscling free speech, which is an inevitable result of arrest for fake news, is the surest way to bring back the culture of silence, which we all agree does not help.
10. Arresting journalists for fake news has led to Ghana’s dismal performance on the World Press Freedom Index. Even military and autocratic governments in West Africa are doing better. We need to arrest the decline in free expression; not to arrest free speech.

Abuse of Ghana’s laws by the police

Section 76 of Ghana’s Electronic Communications Act (Act 775) states that:

• A person who by means of electronic communications service, knowingly sends a communication which is false or misleading and likely to prejudice the efficiency of life-saving service or to endanger the safety of any person, ship, aircraft, vessel or vehicle commits an offence and is liable on summary conviction to a fine of not more than three thousand penalty units or to a term of imprisonment of not more than 5 years or both.

Lawyer and media law lecturer, Samuel Darko, wrote about the above “. . . The Ghana Police Service are abusing the law” because it is not to be applied to everyday comments. He said it “is draconian, archaic, nebulous and subject to abuse” and argued “there are alternative remedies in tort, rejoinder, arbitration and national security and public order laws”. Similarly, Section 208 of the Criminal Offences Act, Act 29, which touches on causing fear and panic, is being abused.

Acquiescence

Sir, in your response, you said the police “have never arrested any journalist for fake news”. That was an endorsement of my position! The debate could have ended there. With all due respect however, that statement is far from the truth. I later showed you evidence of arrests but you were not interested, saying you were over and done with the discussion. The following journalists, Paa Kwesi Simpson of Connect FM, Takoradi, David Tamakloe of WhatsApp News, and Kwabena Bobbie Ansah of Accra FM were all arrested for supposedly publishing fake news.

African High Courts are ruling that criminalizing false publication is against international norms (Zambia and Kenya in 2014 and 2021 respectively). The courts ruled that false statements or alarming rumours was not a crime, and that criminalising same suppressed free expression.

How to fight fake news

To address misinformation and disinformation, a concerted effort is needed to sanitize information sharing and protect democracy. The government must support media literacy and encourage professional journalism. It must avoid a crackdown on the media, censorship and penalizing misinformation. The media should build trust, call out fake news and consider crowdsourcing approaches to authenticating news stories.

Technology and digital companies should invest in tools that find fake news, and insist on real-name policies and zero tolerance for fake accounts. The public must diversify news sources and perspectives and be sceptical of news sources. Organisations should create alerts for fake news, and a high visibility for genuine news. They must create response teams to counter fake news.

Conclusion

Sir, police arrest as a strategy for fake news is not sustainable. It will cause more harm than good. The exception can be made for misinformation bothering national security. It was unfair to characterize me as sensational, and very condescending to suggest I have no mind. It sounds like misinformation requiring an arrest (of who, I do not know). If you opt to apologise, I will accept it. Conversely, if you choose to invite me for a conversation, it should not be over the type of tea without biscuits that the Electoral Commission is wont to offer; neither should it lead to arrest, in case there is misinformation in this letter.

Your new friend
Gayheart Mensah