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How Should the Law Respond to Fake News?

“If freedom of speech is taken away, then dumb and silent we may be led like sheep to the slaughter,” George Washington.

“If liberty means anything, it means telling people what they don’t want to hear,” George Orwell.

“Information is the currency of democracy,” Thomas Jefferson.

The above quotes underpin the beliefs our forefathers had towards free speech and the right to receive and impart information. To them, these rights were and still are the cornerstones of a functioning democracy. The right to free speech gives us the unfettered right to ensure accountability from our leaders. It is one of the reasons why we envy the west. Nonetheless, with the exercise of this right, there is the danger of spread of false news. However, what constitutes fake news is debatable and regulators who have attempted to deal with this have always found themselves at the mercy of courts which declare their actions unconstitutional. In this article, we shall explore the concept of fake news, how it has imparted our lives, the role of the internet in the spread of false news, attempts made by the law to regulate this menace and the way forward.

What is fake news?

To begin with, there is no universally accepted definition of fake news. Nonetheless, several actors have attempted to define it. For example, it has been defined as false information or propaganda published under the guise of being authentic news. Fake news websites and channels push their fake news content in an attempt to mislead consumers of the content and spread misinformation via social networks and word-of-mouth. Moreover, PolitiFact defines false news as made-up stuff, masterfully manipulated to look like credible journalistic reports that are easily spread online to large audiences willing to believe the fictions and spread the word. Therefore simply put, and in this context, false news is series of misinformation propagated through the internet with the intent to mislead the public as to the true nature of the information.

false news is series of misinformation propagated through the internet with the intent to mislead the public as to the true nature of the information.


The fake news dilemma

However, this concept is not as direct as it seems. There is a dilemma as to what constitutes false or fake news. On one side, there is an argument that what is fake is necessarily what is not true. On the other hand, some factions argue that this concept can be manipulated to fit governmental interests. Take for instance, the Zimbabwean criminal code criminalized the spread of false news. When the Supreme Court was faced with the question of the legality of that provision, it noted that: the offence of publishing “false news” in the Zimbabwean criminal code was vague and over-inclusive as anything that is newsworthy is likely to cause subjective emotions. Meaning that it what constitutes false news is subjective. Nonetheless, there is an imminent reality: false news are still been propagated over the internet and there is need to deal with this. But the question comes, how do we deal with the spread of misinformation without stifling free press?

The offence of publishing “false news” in the Zimbabwean criminal code was vague and over-inclusive as anything that is newsworthy is likely to cause subjective emotions

Zimbabwe supreme court

The Kenyan experience

Before answering that question, it is important to analyze how Kenya has responded to this. In 2018, President Kenyatta assented to the Computer misuse and Cyber Crimes Act. This Act was intended to address the gaping holes in computer regulation. Specifically, the law prohibited the spread of false news and had severe sanctions for breach. Notwithstanding those provisions, some sections of the law were suspended due to their unconstitutionality pending the hearing and determination of the case.

The social media boom

Earlier, information was only obtained from newspapers, television and radio. This did not mean that false information was not spread on these platforms, what happened is that the spread of this information wasn’t as rampant as it is nowadays. With the internet, the consumer has the power. Anyone can become a news source so long as he has an internet connection. The consumer has the power to share information with unlimited number of people. With this, the spread of misinformation is very high. Secondly, due to the voracious hunger for information exhibited by netizens, the risks of misinformation are even higher. Thirdly, the desire to be the first to break the news and trend has made people spread information without verifying the source of that information.

The internet is border-less. A post on Facebook can generate 1,000 shares within minutes. A tweet can be shared anywhere. A message on Whats app can be forwarded to as many groups and individuals as possible. As a result, anyone can publish false news and disseminate them to anywhere in the world.


There has been a lot of instances where social media platforms have been used to propagate false information. For example, high-ranking members of the Myanmar military have used doctored messages on Facebook to foment anxiety and fear against the Muslim Rohingya minority group. And in India, fake stories on WhatsApp about child kidnappings led mobs to murder more than a dozen people this year. Back home, Facebook and Whats app have been used to advance the course of false news. Recently, a Facebook page allegedly reported that Moi had died and condolence messages were flooding these groups before someone noted that this was fake news. In addition, during the Dusit attack, some people on social media claimed that the United States was aware of the attack and did not share the information with Kenyan counterparts. This allegation was downplayed by the US ambassador Mr. Robert Godec who claimed that information was false.


With more people getting connected to the internet, the fake news reality becomes more apparent. Moreover, with the internet being border-less, it is up to states to abandon the national approach and focus on the international approach. This does not mean that states should abandon their sovereignty, it means that states should acknowledge that we have become even more interconnected and the doctrine of national borders in the internet world is diminishing. States have tried to regulate the spread of false news but their efforts have been thwarted by courts which see this as an impediment to free speech. There should therefore be an international consensus that fake news is a reality that ought to be addressed. As Judge Weeramantry noted:

“We have entered an era… in which international law not only subserves the interests of individual states, but looks beyond them and their parochial concerns to the greater interests of humanity and planetary welfare…”

Judge Weeramantry

The actions of the international community cannot bear fruits if the social media user is not involved. So what can you do as a consumer to identify and stop the spread of misinformation? John Oliver suggested a pretty simple criteria:

  • Verify stories before passing them on especially if they confirm our pre-existing biases.
  • Before passing on the information, ask yourself whether this is a source that you recognize.
  • Has anyone fact checked it. For example, Microsoft has developed an add on on its edge browser that tells users whether that source is authentic.
  • Does the source link to primary sources and do those sources match what the story says?
  • If you always see an outlet getting things wrong, maybe its time you stop trusting it.

Consumers have the power to stop the spread of fake news. Before sharing a story away, always make sure you fact check it. There is no benefit in being the first and then you share away false news. The voracious hunger for information, desire to share and recognition should not impede all and the sundry from the possible effects of misinformation.

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  1. Joel Gachomo Joel Gachomo

    Absolutely useful. The power is in us to vet the news before sharing. Thank you

    • Thank you for your feedback on this issue. Indeed, it was a pleasure writing this. I agree with you that we as consumers have the ultimate power to vet stories before sharing them. However, we normally forfeit this obligation when we share uncorroborated stories.

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