Listen to Insight

INTRODUCTION

There is a worrying trend in sub-Sahara Africa. Some governments are making moves to restrict freedom of speech on social media. Ghana and Nigeria are the most recent to do so. There is a petition on change.org that quotes:

“There is a bill that has passed the second stage of the Senate. This bills aim is to curb our use of social media with the reasoning that the Senate wants to curb the spreading of false information when in reality they want to limit our freedom of speech and our right to criticize them. They are representatives of Nigerians and have no right to do anything contrary to our wish because this is a democracy and they are to exercise our wishes. This is not our wish”

The language is similar to Ghana’s. The Ghana Minister of Communications, Mrs. Ursula Owusu-Ekuful, has stated that the government would soon make laws to criminalize the sharing of “inappropriate social media content." The purported idea behind this move is child online protection, development and welfare. It is directed at protecting the human rights of children.

The challenge with this policy position is the definition of “inappropriate social media content”. Who deems what inappropriate? What then does criminalizing inappropriate social media content mean, especially right before the election year 2020? There are different types of speech, such as:

“HATE SPEECH: This is speech that offends or attacks people on the basis of race, ethnicity, national origin, religion, gender, sexual orientation, disability, disease, or other traits.

OBSCENITY: Obscenity is famously hard to define, but in general refers to content that strongly offends the prevalent morality of the time.

MISINFORMATION: Misinformation is false or inaccurate information. Examples of misinformation include false rumors, insults and pranks, while examples of more deliberate disinformation include malicious content such as hoaxes, spearphishing and propaganda. Also referred to as fake news.

HARASSMENT:  Harassment refers to unwanted behavior that makes someone feel degraded, humiliated or offended. We do not define it to include true threats of violence, which are banned by all of the platforms below and are not protected by the First Amendment”.

Which of the above does the government want to criminalize? They have not specified. One example used for inappropriate social media content by the Minister was posts containing sexual images. Is she by this explaining that the criminalizing of inappropriate social media refers to obscenity such as pornographic content? Is the law limited to a child online protection act alone? The vagueness of her speech does not allow one to answer conclusively. However, if it is obscenity she is referring to, then that is already criminalized under various laws of Ghana such as the Criminal Offences Act, 1960 (Act 29) and Criminal Offences (Amendment) Act, 2012 Act 849. The next section covers extensively the laws that criminalize obscenity, indecent exposure and pornography. There is thus no need to make new laws to criminalize what is already criminalized. But the government probably wants extra laws because the foregoing may not truly be the focus of ‘inappropriate’ social media content. If already familiar with the laws against obscenity, please skip to the next section.

GHANA LAW ALREADY CRIMINALIZES PORNOGRAPHY AND INDECENT EXPOSURE

Ghana already criminalizes pornography and indecent exposure so if this is the purpose of the new law, then there is no need for it. The laws that criminalize the foregoing are compiled below.

Section 101A – Definition of SEXUAL EXPLOITATION

1. Sexual exploitation is the use of a person for sexual activity that causes or is likely to cause serious physical and emotional injury or in prostitution or pornography.
2. A person who sexually exploits (a) another person other than a child commits an offence and is liable on summary conviction to a term of imprisonment of not less than five years and not more than 25 years; or (b) another person who is a child commits an offence and is liable on summary conviction to a term of imprisonment of not less than seven years and not more than 25 years.

Section 278 – Gross indecency

A person who publicly and willfully does a grossly indecent act commits a misdemeanour.

Section 278A – Immoral or indecent customs or practices, bereaved spouses

A person who compels a bereaved spouse or a relative of that spouse to undergo a custom or practice that is immoral or grossly indecent in nature commits a misdemeanour.

Section 282 – Indecent inscriptions

A person who affixes to, or inscribes on, a place or thing so as to be visible from a public place, or affixes to, or inscribes on, a public urinal, or delivers to a person in a public place, or exhibits to public view from a building, a picture or printed or written matter of an indecent or obscene nature, commits a criminal offence and is liable to a fine not exceeding

twenty-five penalty units.

Section 283 – Getting others to do the acts punishable under section 282

A person who gives or delivers to any other person a picture or printed or written matter mentioned in section 282 with the intent that it be affixed, inscribed, delivered or exhibited as mentioned in that section commits a criminal offence and is liable to a fine not exceeding twenty-five penalty units.

Section 284 – Advertisements as to venereal disease declared indecent

An advertisement relating to venereal disease, nervous debility, or any other complaint or infirmity arising from or relating to sexual intercourse, and an advertisement claiming aphrodisiac properties for a preparation is, for the purposes of this Act, of an indecent or obscene nature.

Subsection (1) does not apply to an advertisement relating to venereal disease published by or with the authority of the Minister responsible for Health.

ELECTRONIC TRANSACTIONS ACT, 2008 (ACT 772)

Section 136 – Child pornography

1. A person who intentionally does any of the following acts (a) publishes child pornography through a computer; (b) produces or procures child pornography for the purpose of its publication through a computer system; or (c) possesses child pornography in a computer system or on a computer or electronic record storage medium, commits an offence and is liable on summary conviction to a fine of not more than 25 penalty units or a term of imprisonment of not more than10 years or to both.
2. In this section—

“child” means a person below 18 years;

“child pornography” includes material that visually depicts a child engaged in sexually explicit conduct; a person who appears to be a child engaged in sexually explicit conduct; images representing a child engaged in sexually explicit conduct; and unauthorised images of nude children;

“publish” means

1. distribute, transmit, disseminate, circulate, deliver, exhibit, lend for gain, exchange, barter, sell or offer for sale, let on hire or offer to let on hire, offer in any other way, or make available in any way;
2. have in possession or custody, or under control, for the purpose of doing an act referred to in paragraph (a); and (c) print, photograph, copy or make in any other manner whether of the same or of a different kind or nature to carry out an act referred to in paragraph (a).

DEVELOPMENT AND CLASSIFICATION OF FILM ACT, 2016 (ACT 935)

Section 20 – Pornographic films

The Board shall not approve for exhibition, a film which it considers to be pornographic.

Section 28 – Forfeiture of equipment

1. Where a person… (b) exhibits a pornographic film, the Board shall seize the film and the equipment used for the exhibition without limiting criminal proceedings that may be instituted against the exhibitor and apply to the High Court for forfeiture to the State of both the film and the equipment.
2. A seizure of the film and equipment is not a bar to any criminal proceedings that may be instituted against the exhibiter.

POSTAL AND COURIER SERVICES REGULATORY COMMISSION ACT, 2003 (ACT 649)

Section 29(1) – Prohibition on sending certain articles by post or courier

A person shall not send by post… (d) an indecent or a pornographic printing, painting, photograph, lithograph, engraving, book, card or any other indecent pornographic article in whatever form; [or][ (e) a postal article that bears on the cover of it words, marks or designs of an indecent, pornographic, scurrilous, threatening or grossly offensive character.

The above laws were compiled by Ace Ankomah in The Finder Online.

CRIMINALIZING ‘INAPPROPRIATE’ SOCIAL MEDIA CONTENT

As technological communications advance, the battleground for freedom of speech is social media. Governments in the sub-region including Ghana should be careful at stifling the human right called free speech, “including attempts at censorship by government actors critical of comments on social media, the shifting standards of private platforms to censor online expression and the rise of hate and extremist speech in the digital world”. The Government of Ghana intends to restrict free speech on social media but by how much, we do not know. Even the definition, scope or nature of “inappropriate content” is unclear. This touches on fundamental human rights of citizens whether you look at it from the perspective of international, regional or national laws. Will the process of coming up with a definition for inappropriate social media content be transparent, subject to public scrutiny and approval? Will the scope of the definition expand and extend beyond sexual depictions to whoever writes something unfavorable or critical about the government or its officials? None of these has been clarified by those crafting the laws without extensive consultation of stakeholders—the most important being the ordinary citizen.

The government has not shared these answers with citizens for now. And for this reason, Ghanaians must interrogate the issue because history confirms that this same government administration tried to implement policies without public consultation that the overwhelming majority of the public did not agree with when it was eventually leaked. A recent example is the Comprehensive Sexuality Education (CSE) policy from kindergarten to university without public consultation. Another was the 2018 “Agreement between The Government of the United States of America And the Government of the Republic of Ghana On Defence Cooperation, the status of United States Forces, And Access to and use of agreed facilities and areas In the Republic of Ghana”.

Transparency with the public was not a strong suit of this government’s predecessor either, the National Democratic Congress, as seen with Ghana’s agreement with the USA to host two former Gitmo detainees. Here too, the public was initially kept in the dark. This opaque governance style is what gives rise to people wondering what the true intention behind criminalizing social media content is—especially when much research the world over frowns against such a policy stance. Furthermore, this policy stance is being undertaken just before an election year.

Summarizing the forgone, one has to wonder:

1. the scope of activities or content to be criminalized?
2. whether the intentions for such criminalization are pure
3. whether the criminalization process will be transparent to the entire public unlike some previous policies
4. whether sufficient stakeholder consultation with traditional leaders, CSOs, religious bodies, political parties, academics and the general public will be carried out

WHAT DOES THE CONSTITUTION SAY?

The 1992 constitution states that, “The Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within the limits laid down in this Constitution." The power of government enjoyed by any government administration in Ghana is derived from the people, and they are to act to “secure for ourselves and posterity the blessings of liberty, equality of opportunity and prosperity.” Their job includes “the protection and preservation of Fundamental Human Rights and Freedoms, Unity and Stability for our Nation”

One of such freedoms is what may be potentially threatened by this move to criminalize social media content— freedom of speech and expression, which shall include freedom of the press and other media. It would be good for the government to assure the public that the intended criminalization of social media content will not affect this or any other freedoms guaranteed by Ghana's Constitution or international law. Being transparent in the process of originating this law will go a long way to show the international community and Ghanaians how well-meaning and beneficial this law could be. But is this freedom truly guaranteed by the Constitution or international law?

Free Speech and the Constitution of The Republic of Ghana

Chapter 5 of the 1992 Constitution of the Republic of Ghana protects the Fundamental Human Right and Freedoms of Ghanaian citizens. Article 21(1) titled ‘General Fundamental Freedoms’ specifically protects every citizen’s right to ‘freedom of speech and expression’.

21(1)   All persons shall have the right to:

1. freedom of speech and expression, which shall include freedom of the press and other media;
2. freedom of thought, conscience and belief, which shall include academic freedom;

Any other media in (a) includes social media. It is important to note that these universal fundamental human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. In Ghana, there are cases where some of these freedoms in this section of the Constitution have been abused by those put in office to safeguard them. A clear example is how law students held a peaceful demonstration dubbed Red Monday to protest the General Legal Council. This demonstration was met with disproportionate use of force against the peaceful protestors by the Ghana Police Service. The police alleged agitation by the students, but onlookers reported no provocation from the students. The Canadian High Commission became a shelter for Ghanaian Students running from their own Police Service. This was an infringement on the students’ right to “freedom of assembly including the freedom to take part in processions and demonstrations” guaranteed under the 1992 Constitution Article 21(1)(d) and under various international human rights instruments. This is not a lone incident. When Ghanaian citizens gathered to vote at the Ayawaso West Wuogon Constituency, government security forces showed up, physically abused and beat up a Minority Member of Parliament and shot at civilians wounding some. According to the Short Report, these atrocities were carried out by the government's operatives from the National Security Council. This too is an infringement on “freedom of association, which shall include freedom to form or join trade unions or other associations, national and international, for the protection of their interest” guaranteed by Article 21(1)(e) of the 1992 Constitution. An additional guarantee for the right to freedom of association in the political sphere is found under Article 21(3) which provides: (3) All citizens shall have the right and freedom to form or join political parties and to participate in political activities subject to such qualifications and laws as are necessary in a free and democratic society and are consistent with this Constitution. What happened in Ayawaso West Wuogon is a taint on Ghana’s democratic credentials.

No government has the right to give or take these rights and freedoms including the freedom of speech from their citizens. All peoples are equally entitled to human rights without discrimination. These rights are inalienable,  interrelated, interdependent and indivisible. Some of them may be taken away only in specific situations and according to due process. For example, the right to liberty may be curtailed if a person is found guilty of a crime by a competent court of law.

DANGER OF CURTAILING FREE SPEECH

The justification for controlling free speech or censoring it sometimes is taken from the idea that there is quite a lot of fake news that needs censoring. But fake news has always existed. It is known as propaganda. That existence of fake news does not give governments of today the license to censor or effectively weaken pillars of democracy such as free speech and expression. The leaders of old did not and there is no reason why leaders of today should rewrite history in a destructive way.  Tinkering with free speech has a way of unravelling republican democracy. Do not take my word for it. Listen to the ancients—men credited as founding the most visible republican democracy on the planet—the USA.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” —Amendment I, The U.S. Constitution

“Without Freedom of Thought, there can be no such thing as Wisdom; and no such thing as public liberty, without Freedom of Speech.”—Benjamin Franklin, Letter from Silence Dogood, printed in The New England Courant, July 9, 1722

“For if Men are to be precluded from offering their Sentiments on a matter, which may involve the most serious and alarming consequences, that can invite the consideration of Mankind, reason is of no use to us; the freedom of Speech may be taken away, and, dumb and silent we may be led, like sheep, to the Slaughter.” —George Washington, Address to the officers of the army, March 15, 1783

“In those wretched countries where a man cannot call his tongue his own, he can scarce call anything his own. Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech; a thing terrible to publick traytors.” —Benjamin Franklin, Dogwood Papers, written by Franklin in 1722, at the age of sixteen

“Freedom of speech is a principal pillar of a free government: When this support is taken away, the constitution of a free society is dissolved,” —Benjamin Franklin in The Pennsylvania Gazette.

INTERNATIONAL STANDARDS ON FREEDOM OF EXPRESSION

UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR)

Article 19 of the Universal Declaration of Human Rights (UDHR), proclaimed by the United Nations General Assembly in 1948 (United Nations, 1948) states:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

Any media here includes social media.

By virtue of the overwhelming rate of treaty ratification and its inclusion in the UDHR, freedom of speech is now considered to be a norm of customary international law (Triggs, 2011).

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR) 

Article 19

1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive  and  impart  information  and  ideas  of  all  kinds,  regardless  of  frontiers,  either  orally,  in  writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 3 of this article carries with it special duties and responsibilities.  It  may  therefore  be  subject  to  certain  restrictions,  but  these  shall  only  be  such as are provided by law and are necessary:
   
   1. For respect of the right or reputations of others;
   2. For the protection of national security or of public order, or of public health or morals.

AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS

Article 9

1. Every individual shall have the right to receive information.
2. Every individual shall have the right to express and disseminate his opinions within the law.

RESOLUTION 169 ON REPEALING CRIMINAL DEFAMATION LAW IN AFRICA BY THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS - 24 NOVEMBER 2010

1. Underlines that criminal defamation laws constitute a serious interference with freedom of expression and impedes on the role of the media as a watchdog, preventing journalists and media practitioners to practice their profession without fear and in good faith;
2. Commending States  Parties  to  the  African  Charter  (States  Parties)  that  do  not  have,  or  have  completely repealed insult and criminal defamation laws;

1. 1. Calls on  States  Parties  to  repeal  criminal  defamation  laws  or  insult  laws  which  impede  freedom of speech, and to adhere to the provisions of freedom of expression, articulated in the African Charter, the Declaration, and other regional and international instruments;
   2. Also calls on States Parties to refrain from imposing general restrictions that are in violation of the right to freedom of expression;

EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

Article 10

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and  to  receive  and  impart  information  and  ideas  without  interference  by  public  authority  and  regardless  of  frontiers.  This  article  shall  not  prevent  States  from  requiring  the  licensing  of  broadcasting, television or cinema enterprises. 
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of  the  reputation  or  rights  of  others,  for  preventing  the  disclosure  of  information  received  in  confidence, or for maintaining the authority and impartiality of the judiciary

AMERICAN CONVENTION ON HUMAN RIGHTS

Article 13

1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive,  and  impart  information  and  ideas  of  all  kinds,  regardless  of  frontiers,  either  orally,  in  writing, in print, in the form of art, or through any other medium of one’s choice.
2. The  exercise  of  the  right  provided  for  in  the  foregoing  paragraph  shall  not  be  subject  to  prior  censorship  but  shall  be  subject  to  subsequent  imposition  of  liability,  which  shall  be  expressly  established by law to the extent necessary to ensure:
   
   1. Respect for the rights or reputations of others; 
   2. The protection of national security, public order, or public health or morals.

3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or  private  controls  over  newsprint,  radio  broadcasting  frequencies,  or  equipment  used  in  the  dissemination  of  information,  or  by  any  other  means  tending  to  impede  the  communication and circulation of ideas and opinions.
4. Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.
5. Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, colour, religion, language, or national origin shall be considered as offenses punishable by law.

ASEAN HUMAN RIGHTS DECLARATION

There is no established regional human rights body for Asia. However, the ten countries of the Association of  Southeast  Asian  Nations  (ASEAN)  formally  established  the  ASEAN  Intergovernmental  Commission  on  Human  Rights  (AICHR)  on  23  October  2009,  during  the  15th  ASEAN  Summit.  The  group  also  adopted  a  Human Rights Declaration, which guarantees freedom of expression as follows:

23. Every person has the right to freedom of opinion and expression, including freedom to hold opinions without interference and to seek, receive and impart information, whether orally, in writing or through any other medium of that person’s choice.

DISCUSSION OF LAWS SAFEGUARDING FREEDOM OF EXPRESSION AND SPEECH

We have established beyond doubt from international law as well as Ghana’s Constitution that freedom of opinion, expression and speech is a fundamental freedom for every Ghanaian and the fact that this right includes “freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers” (UDHR, 1948). ‘Any media' here includes social media. By virtue of the overwhelming rate of treaty ratification and its inclusion in the UDHR, freedom of speech is now considered to be a norm of customary international law (Triggs, 2011. International law: Contemporary principles and practices (2nd ed.).

As per the ICCPR Article 19(2), “the right to freedom of expression … shall include freedom to seek, receive  and  impart  information  and  ideas  of  all  kinds,  regardless  of  frontiers,  either  orally,  in  writing or in print, in the form of art, or through any other media of his choice”.  State parties are obligated by International Law to protect these rights, however, not to the exclusion of others in the society—meaning these freedoms can be expressed so long as they do not infringe on other people's human rights.

“States assume obligations and duties under international law to respect, to protect and to fulfil human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights”.

Even though states have an obligation to respect, protect and fulfil these fundamental human rights to freedom of expression and speech, human rights entail both rights and obligations. This means that rights may be restricted in some circumstances.

Restriction on Freedom of Expression and Speech

The ability to enjoy freedom of expression and speech should not derogate another person’s ability to enjoy their rights and should not affect national security adversely. For this reason, the freedom of expression and speech may  be  subject  to  certain  formalities, conditions, restrictions or penalties “as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of  the  reputation  or  rights  of  others,  for  preventing  the  disclosure  of  information  received  in  confidence, or for maintaining the authority and impartiality of the judiciary” (Article 19 of ICCPR & Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms).

The consequence of the above restrictions to freedom of speech is criminal defamation laws. But these laws have been observed to impede democracy in nations, and they have been observed to defeat the purpose for which freedom of expression and speech exist in a democracy to foster debate. Owing to this, Resolution 169 on Repealing Criminal Defamation Law in Africa by the African Commission on Human and Peoples’ Rights - 24 November 2010:

1. Underlines  that  criminal  defamation  laws  constitute  a  serious  interference  with  freedom  of  expression and impedes on the role of the media as a watchdog, preventing journalists and media practitioners to practice their profession without fear and in good faith;
2. Commending States  Parties  to  the  African  Charter  (States  Parties)  that  do  not  have,  or  have  completely repealed insult and criminal defamation laws;

1. 1. Calls on  States  Parties  to  repeal  criminal  defamation  laws  or  insult  laws  which  impede  freedom of speech, and to adhere to the provisions of freedom of expression, articulated in the African Charter, the Declaration, and other regional and international instruments;
   2. Also calls on States Parties to refrain from imposing general restrictions that are in violation of the right to freedom of expression;

It is our hope and trust that the laws to criminalize inappropriate social media content will be relegated only to obscenity, indecent exposure and pornography as alluded to by the Minister and will not include caveats that will impose general restrictions that violate the right to freedom of expression but that it will adhere to the provisions of freedom of expression, articulated in the African Charter, the Declaration, and other regional and international instruments.

Repressive Versus Liberating Laws

Many laws are man-made and as such, subject to the frailties of men. Laws are made for man, not man for the laws. Put differently, laws are made to meet the needs of people, and not people to meet the requirements of the law. Laws can be repressive and retrogressive to development or liberating and positive for sustainable development. They can lead to the securing for ourselves and posterity the blessings of liberty, equality of opportunity and prosperity or they can lead to repression as we saw in Nazi Germany and under the Apartheid regime in South Africa. The atrocities of Apartheid and Nazi Germany were carried out using laws.

As the government considers drawing up these cyber laws, they should consider the legacy that will be left behind. Laws should lead to sustainable, inclusive development and not something that only profits one political divide or empowers the government unduly against the citizens.

Expanding versus Restricting Freedom Of Speech Over The Internet

The U.S. Supreme Court Justice Anthony Kennedy “also wrote important opinions protecting freedom of speech over the internet. [In] Packingham v. North Carolina, he authored a majority opinion declaring unconstitutional a state law that prohibited registered sex offenders from being on social media sites where minors might be present. He wrote eloquently of the importance of the internet and social media for speech: "While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the ‘vast democratic forums of the Internet' in general, and social media in particular."

Earlier, in 1997, he was part of the majority in Reno v. American Civil Liberties Union, which struck down key provisions of the Communications Decency Act of 1996, which restricted "indecent" speech over the internet. He wrote the opinion for the court declaring a subsequent statute, the Child Online Protection Act, to be unconstitutional, in 2004’s Ashcroft v. ACLU”.

It is this same type of Child Online Protection Act the Minister of information seeks to pass into law in Ghana. Though Justice Kennedy was a champion for expanding free speech protections, and sometimes dissented from decisions that upheld restrictions on speech, he also “consistently was with the conservative justices in allowing restrictions on free speech when the institutional interests of the government were involved”. I am not conversant with the views of Ghanaian Justices on the subject of free speech over the internet so will not say much here.

BEST PRACTICE

The U.S. is arguably the most prominent beacon of democracy in the free world. George Washington, a founding father and first U.S. President (1789–97) gave the U.S. and republican democratic states that followed, precedents still in use today such as the Cabinet advisory system, the inaugural address, the title “Mr. President”, and the concept of a two-term office limit. Many democracies the world over are adaptations of the American system. Ghana can learn from them when it comes to freedom of speech and the doctrines that underpin it. There is no need to reinvent the wheel. 

The U.S. Constitution’s First Amendment states, “Congress shall make no law … abridging the freedom of speech, or of the press; …” “But the case law that, over the course of the twentieth century, has been built upon this foundation is complex. An extremely abbreviated outline of the principal doctrines would go as follows:

• If a law gives no clear notice of the kind of speech it prohibits, it's "void for vagueness."
• If a law burdens substantially more speech than is necessary to advance a compelling government interest, it's unconstitutionally "overbroad."
• A government may not force a person to endorse any symbol, slogan, or pledge.
• Governmental restrictions on the "time, place, and manner" in which speech is permitted are constitutional if and only if:
  
  • they are "content neutral," both on their face and as applied;
  • they leave substantial other opportunities for speech to take place; and
  • they "narrowly serve a significant state interest."
• On state-owned property that does not constitute a "public forum," government may restrict speech in any way that is reasonable in light of the nature and purpose of the property in question.
• Content-based governmental restrictions on speech are unconstitutional unless they advance a "compelling state interest." To this principle, there are six exceptions:

1. Speech that is likely to lead to imminent lawless action may be prohibited.
2. "Fighting words" -- i.e., words so insulting that people are likely to fight back -- may be prohibited.
3. Obscenity -- i.e., erotic expression, grossly or patently offensive to an average person, that lacks serious artistic or social value -- may be prohibited.
4. Child pornography may be banned whether or not it is legally obscene and whether or not it has serious artistic or social value, because it induces people to engage in lewd displays, and the creation of it threatens the welfare of children.
5. Defamatory statements may be prohibited.  (In other words, the making of such statements may constitutionally give rise to civil liability.)  However, if the target of the defamation is a "public figure," she must prove that the defendant acted with "malice." If the target is not a "public figure" but the statement involved a matter of "public concern," the plaintiff must prove that the defendant acted with negligence concerning its falsity.
6. Commercial speech may be banned only if it is misleading, pertains to illegal products, or directly advances a substantial state interest with a degree of suppression no greater than is reasonably necessary.”

RECOMMENDATIONS

“The government is not supposed to know a lot about us. That’s why we’re called private citizens. Public officials are supposed to be transparent: We’re supposed to know a lot about them because they wield privilege, influence, and power to the most extreme degree within society. Privacy is intended not for these people; privacy is for the powerless. And if we do not protect it, we will not have it” (Edward Sowden).

1. The government should come up with privacy laws that protect the rights of users of social media platforms in line with international standards to balance any perceived restriction of restricting of freedom of speech in any way.
2. Follow best practice internationally in coming up with criminalizing social media content
3. A poorly crafted cyber policy for censoring social media with poor stakeholder consultation and perceived to be a gag tool for political activists could backfire. Therefore, the government must make the process for coming up with said criminalizing laws transparent, inclusive and democratic—by engaging in wide stakeholder consultation, especially with people or groups who don’t want such restrictions.
4. The government must let the public know the definition of “inappropriate social media content”.
5. The government must let the public know the scope of the definition—what it covers and what it does not.
6. There should be wide stakeholder consultation with traditional leaders, religious bodies, CSOs, political parties, academics, and others.
7. The government should be careful NOT to engage in “arbitrary or unlawful” attack on people’s privacy and hence violate their freedom of expression that is enshrined in the International Covenant on Civil and Political Rights”.
8. The government should shy away from increasingly using repressive provisions from penal codes and security laws to criminalize and discredit people who may be critical of government. This is how democracy works. People have a right to dissenting opinions.
9. The government should be guided by Resolution 169 on Repealing Criminal Defamation Law in Africa by the African Commission on Human and Peoples’ Rights - 24 November 2010 just in case their definition of inappropriate social media content extends to insult and criminal defamation laws. Resolution 169:
   
   1. Underlines  that  criminal  defamation  laws  constitute  a  serious  interference  with  freedom  of  expression and impedes on the role of the media as a watchdog, preventing journalists and media practitioners to practice their profession without fear and in good faith;
   2. Commending States  Parties  to  the  African  Charter  (States  Parties)  that  do  not  have,  or  have  completely repealed insult and criminal defamation laws;
   3. Calls on  States  Parties  to  repeal  criminal  defamation  laws  or  insult  laws  which  impede  freedom of speech, and to adhere to the provisions of freedom of expression, articulated in the African Charter, the Declaration, and other regional and international instruments;
   4. Also calls on States Parties to refrain from imposing general restrictions that are in violation of the right to freedom of expression