The Gambia Cybercrime Bill: Threat to Expression, Press Freedom & Digital Rights

By Kaddy Jawo

The Gambia’s Draft Cybercrime Bill is aimed improving the Gambia’s capacity to respond to cybercrime incidents adequately, according to its proponents, the Ministry of Communication and Digital Economy, MoCDE.

The Bill, which was read a second time at the National Assembly in March 2024, was advanced to the Committee Stage and is being reviewed by the Education Committee, which is holding public consultations with various stakeholders including civil society organisations and media groups.

The bill has faced significant scrutiny and criticism regarding its potential negative impact on press freedom, freedom of expression and digital rights.

The Bill would make an alarming scope of online speech a crime under the guise of
combating “cybercrime”, the Dakar-based ARTICLE 19 West Africa stated in a detailed analysis of the draft law.

Some of the provisions would specifically affect the media, human rights activists, opposition activists, and generally, members of the public and social media users, the Gambia Press Union stated in a position paper in March.

Key Provisions Highlighted in the Bill

• Offences
  1. False News: Criminalizes the dissemination of false information, potentially impacting journalists and freedom of expression.
  2. Incitement and Bullying: Broadly defines and criminalizes incitement to violence, bullying, and derogatory remarks, with potential implications for journalists and activists.
  3. Child Pornography: Sets severe penalties for the production, distribution, or possession of child pornography.
• Powers and Enforcement
  1. Search and Seizure: Authorizes authorities to search and seize computer systems with a court warrant, raising concerns about due process and judicial oversight.
  2. Interception and Surveillance: Permits real-time data collection and content interception, including ex-parte warrants that do not notify the target.
  3. Penalties: Imposes significant fines and long prison sentences for various offences, including obstruction of justice.

Concerns and Criticisms:

• Freedom of Expression: Provisions on false news and cyberbullying are seen as overly broad and vague, risking suppression of legitimate speech and criticism.
• Press Freedom: Media organisations and their leaders could face criminal liability for published content, potentially stifling journalism and whistleblowing.
• Digital Rights: The bill’s extensive surveillance powers and criminalisation of digital security tools could undermine privacy and the protection of sources for journalists and human rights defenders.

Position Papers:

• The Gambia Press Union (GPU) The GPU has expressed concerns about the Cybercrime Bill 2023, particularly regarding its potential threats to press freedom and freedom of expression. Sections 4, 6, 16, 17, and 18 are seen as potentially adverse to journalists, human rights activists, and the public. The GPU argues that the bill’s definitions of offences like ‘false news’ and ‘incitement’ are too broad and could be misused. They recommend revising or removing problematic provisions, subjecting the bill to a National Assembly review, and involving stakeholders in public consultations.
• ARTICLE 19 ARTICLE also raised an alarm about the draft Cybercrime Bill 2023, fearing it would suppress online freedom of expression and dissent. They criticize the bill for criminalizing a wide range of online speech, including ‘false news’ and criticism of public officials, and for holding media organizations and civil society leaders liable for published content. The bill’s broad surveillance powers and criminalization of digital security tools are seen as threats to digital security and legitimate research. ARTICLE 19 recommends aligning the bill with international human rights standards, removing content-based offences, ensuring independent review of law enforcement orders, and protecting digital security and legitimate criticism of public officials.

The potential risks associated with Sections 4, 6, 16, 17, and 18 of The Gambia Cybercrime Bill 2023 are significant, particularly concerning freedom of expression and press freedom. Here’s a breakdown of the concerns:

 Section 4: False News

• Risk: This section criminalizes the dissemination of false information. The broad and vague definition of “false news” could lead to the suppression of legitimate reporting and criticism, potentially targeting journalists, activists, and ordinary citizens who express dissenting views or report on controversial issues.

Section 6: Incitement to Violence

• Risk: The provision broadly defines and criminalizes incitement to violence. This could be used to target individuals or groups who advocate for social or political change, even if their speech is non-violent. The lack of clarity could result in overreach and abuse against those engaged in peaceful protests or advocacy.

 Section 16: Cyberbullying

• Risk: This section targets electronic communication intended to cause harm. While aimed at addressing harassment, its broad scope might include legitimate criticism and online activism. This could potentially lead to legal action against those expressing dissent or challenging authority online.

 Section 17: Abuses

• Risk: This section addresses various forms of online abuse, but its broad definitions could be interpreted to stifle free expression. The provision might be used to silence critics, journalists, and activists by labelling their speech as abusive or harmful.

 Section 18: Search and Seizure

• Risk: This section grants authorities broad powers to search and seize computer systems with a court warrant. Concerns include potential violations of due process and privacy rights, as well as the risk of abuse in the collection and handling of electronic evidence. The lack of adequate safeguards and oversight could lead to excessive surveillance and invasion of privacy.

Overall Risks

• Freedom of Expression: The broad and vague language in these sections could lead to the suppression of free speech and criticism, impacting journalists, activists, and the general public.
• Press Freedom: Media organizations may face legal challenges for publishing content deemed as false or inciting, which could stifle investigative journalism and whistleblowing.
• Privacy and Due Process: The extensive search and seizure powers could undermine privacy rights and lead to potential misuse of legal authority.

These sections raise significant concerns about balancing effective cybercrime prevention with protecting fundamental rights and freedoms.

The Negative Aspects of the Cybercrime Bill:

Threats to Freedom of Expression

The bill’s definitions of offences such as “false news,” “incitement,” and “cyberbullying” are criticized for being overly broad and vague. This lack of clarity could lead to the suppression of legitimate speech and criticism, potentially criminalizing ordinary public discourse and dissent.

Impact on Press Freedom:

Media organizations and journalists could face criminal charges for publishing content deemed as false or inciting. This threat could stifle investigative journalism, limit whistleblowing, and inhibit the press’s role in holding power to account.

The bill grants significant surveillance powers, including real-time data collection and content interception, often without sufficient judicial oversight. This could lead to intrusive monitoring of individuals’ online activities, raising serious privacy concerns.

The bill criminalizes the possession of digital security tools, which are essential for protecting privacy and securing digital communications. This could hinder the ability of journalists and human rights defenders to safeguard their sources and sensitive information.

READ MORE:

The Gambia: Draft cybercrime bill threatens online dissent – ARTICLE 19 Statement

Gambia Press Union Position Paper on the Cybercrime Bill, 2023

The Gambia: Cybercrime Bill 2023 – Legal Analysis by ARTICLE 19