Can we tackle cybercrime without compromising free speech and democracy? As AI-driven threats rise, balancing national security and human rights is more crucial than ever. Brian Kaitano, an SDG enthusiast from Maseno University, Kenya, delves into this challenge—exploring how Kenya can combat cybercrime while safeguarding its democratic values

Addressing Fake News while Ensuring Compliance to Human Rights in Kenya by Brian Kaitano

Freedom of speech and expression is a fundamental freedom guaranteed by various constitutions globally. Kenya was among several African countries elected to the UN human rights council on October 2024, and is among the leading countries in Africa which have made commendable strides to guarantee freedom of speech and expression online. However, a lot needs to be done to ensure no breaking or violation of this freedom. The digital era has provided for a larger and faster circulation of information presenting the different views, opinions, creativity and thoughts of people all over the world. The internet has unique characteristics, including its speed, worldwide reach and relative anonymity and, as such, enables its users to disseminate information in `real-time` and to mobilize people. Moreover, this has facilitated the circulation of productive criticism of governments and their policies as well as, especially during elections, political campaigns.

On the other hand, there is a flood of fake news circulating on social media in Kenya. This darker side threatens democracy, institutions, human rights, and achievement of UN SDGs. Fake information during crises like the COVID-19 pandemic can endanger lives. Hate speech and weaponised information incite and prolong conflicts. Climate misinformation and disinformation impede necessary actions to address the climate emergency. It also erodes trust in institutions, interferes with electoral process, and targets marginalized groups. As such, fake news circulating in social media and mainstream media which undermines democratic integrity needs to be regulated.

However, the use of anti-fake news laws by governments to censor and criminalize critics and opponents is on the rise globally. Illiberal governments in parts of Africa, Asia, Europe, and Latin America have exploited global fake news rhetoric to impose laws with vague and subjective definitions to what constitutes such content. Law-enforcement agencies have expanded the definition of “fake news” to include criticism of and opposition to government, to further crackdown on dissent. Key targets of fake news allegations include academics, journalists and activists who rely on online platforms. This is meant to suppress civil society’s rights and endeavors. Practices of digital repression are multifaceted, including internet shutdowns, digital surveillance, online information manipulation, and state-backed fake news campaigns.

Artificial Intelligence could be a tool for truth and progress, not manipulation and division

In 2023, the UN sounded the alarm over AI-generated deepfakes being used to spread hate and misinformation on social media. The UN further noted that while holding almost unimaginable potential to address global challenges, there were serious and urgent concerns about the equally powerful potential threats of recent advances in AI – including image generation and video deepfakes to threaten information integrity. A recent example in Kenya is when social media users shared AI-generated images of President Ruto and other top government officials that were deemed offensive by supporters of the government.

Stakeholders, including policy-makers, tech companies, researchers, and civil organizations would be wise to take urgent and immediate measures to ensure the safe, secure, responsible, ethical and human rights-compliant use of AI and address the implications of recent advances in this field for the spread of misinformation and disinformation and hate speech. This can only be addressed through a stronger international cooperation. By working together, societies across the world can help ensure that AI serves as a tool for truth and progress, not manipulation and division.

How you can guard against fake news

One of the most effective ways is to identify misinformation and disinformation – whether AI or human–generated – is to look at where it comes from. For example, is it from reputable professional news organisation or from a website or account you do not recognise? Other tips include:

1. Being aware of red flags for AI-generated images including those characterized by being hyper-real, strange in overall appearance, or featuring modified parts of the body.
2. Stepping back for a pause, for fake news content is often designed to appeal to our emotions and spark a big emotional reaction.
3. Verifying headlines and image content by adding a fact-check to your Google search.
4. Keeping an eye out for very generic website titles that can be a red flag for AI-generated news.

Weaponisation of anti-fake news laws

Laws can be weaponised when there is scope for subjectivity in both their interpretation and implementation. Weaponisation of anti-fake news laws by government authorities are meant to fine, arrest, and imprison targets critical of them. While these laws are considered instrumental in combating online fake news, they could be misused and result in restricted press freedoms. For example, fake news allegations reinforce the authorities’ physical and psychological intimidation of targets. Most physical harassment transpire during the arrest and detention/imprisonment period. Additionally, those associated with primary targets may also find themselves subjected to legal, physical and psychological intimidations.

Some of these laws have vague and draconian provisions, allowing governments to determine what constitutes “fake news” and criminalize those spreading it. The targets are often charged on grounds of “malicious intentions” rather than on hard evidence. Second, fake news offences are often equated with threats to public order, national security, communal harmony, friendly relations with other countries, and positioned as damaging the reputation of the state. This makes fake news a high-order offence through association of its spread with serious crimes. This may allow a government agency to charge a target without waiting for actual harm to be committed.

In addition, some laws require the police to be the ones to initially lodge charges, and it is in this context that politicians and executive heads exploit by filling fake news charges against journalist and activists who criticize and allegedly defame them.

Furthermore, internet shutdowns are powerful markers of sharply deteriorating human rights situations since it impact human rights, economy, and day to day life. When major communication channels and networks are slowed down or blocked, this means thousands, even millions of people are deprived of their only means of reaching loved ones, medical assistance, of working, or participating in political debates/decisions. As such, action is needed to end internet shutdowns, including through more reporting of impacts and more transparency by involved companies.

Applying human rights safeguards in fake news investigations

Respect for human rights and the rule of law is an important aspect of many democratic societies and can also be a condition for the legality of evidence and the fairness of criminal procedure. It also affects the trust that citizens have in public institutions, and in many cases is a perquisite for securing international cooperation that is critical for effective fake news investigations.

Many rights – including the right to privacy, a fair trial, freedom of expression and protection of property – can be affected in the course of fake news investigations. International and regional human rights standards, as well as the jurisprudence of international courts provide important guidance to governments on how to implement in practice their human rights obligations regarding fake news investigation. This includes implementing domestic legislation to regulate the use of investigative powers in line with the international human rights standards and safeguards, and ensuring that practitioners have the knowledge and skills necessary to uphold these standards throughout fake news investigations.

What can we do?

There is no doubt that fake news abounds in society and this needs to be put in check by the authority cautiously so that it can avoid facing criticism from society on its apparently arbitrary measures. Strengthening data protection, regulating social media platforms, and tackling fake news should be directly connected to the broader reform measures included in democracy-promotion programmes. Beyond legal redress, funding agencies could also focus on fact-checking, providing legal aid to victims, expanding information literacy, and promoting best practice on content moderation – especially with reference to local languages.

Governments could also better support the capacity-building and research activities of organizations affected by the anti-fake news laws since these organizations have access to ground-level information on the latter and they can develop data-backed knowledge on digital repression and on grassroots communities’ countermeasures. This will help preserve information integrity and the democratic rights of civil society.

Moreover, along with governments keeping their powers in check, we would be wise to make the most of the digital era for positive purposes and not to take advantage of the freedom it gives us through a click of a button. We must think before we post or repost.

Brian Kaitano, Maseno University, Kenya

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