Regulating Freedom of Expression/Speech on Social Media in a Democratic Dispensation
written by Kayuma Jones Makayi as part of the Vienna Masters in Human Rights Program
The important role free speech plays in a democratic dispensation cannot be overemphasised. Freedom of speech and expression provides a platform for citizens’ participation in the democratic space of their countries.
For the purposes of this article, I will restrict myself to the current debate about media freedom in Zambia as viewed from a public perspective. Prior to and after the general elections on the 8th August 2016, there has been increasing public debate about the feared shrinking space of media freedom in Zambia. There has for example been a significant clamp down on certain media houses, which has included punitive actions. Government orchestrated mechanisms either regulated freedom of expression or completely silenced dissent voices in the political arena of the country. This has led to major criticism on numerous government decisions, which were strongly disapproved by the public. Consequently, citizens have taken to social media as a fast and easy way of expressing their misgivings about the current government. In turn, the government has taken strong exceptions on what it terms “abuse” of social media. In several instances, the government took actions that border on acts of criminality and hate speech. There has since been calls for an Independent Broadcasting Authority (IBA) – a statutory body responsible for licensing and regulating media houses, to ensure that media houses adhere to ‘good’ practices of journalism. Otherwise, they risk punitive actions.
In August 2016, the Independent Broadcasting Authority (IBA) suspended the broadcasting licenses for Muvi TV as well as two community radio stations (i.e. Komboni radio and Sky fm) for alleged failure to adhere to operating guidelines and other legal requirements such as taxes. The Post Newspaper, one of the most vibrant and thriving independent print media house, has since also been closed down with legal battles still on-going in the courts.
This was once more viewed by the public as well as political and human rights activists to be an affront on freedom of expression and free speech. These actions, they argue, are politically motivated since these media houses featured news items that covered views of the opposition and offered general critic on government decisions. The TV station and radio stations were later allowed to resume operations, but the Post newspapers has been wound up.
The Zambian Constitution in article 20 (1) provides for protection of freedom of expression and speech. However, these freedoms (like other rights) are guaranteed – subject to certain legal/statutory limitations such as public order and safety, protection of the reputations and interest of other people. They are not absolute rights albeit important to democratic dispensation. Moreover, Zambia is a signatory and has ratified various international human rights instruments such as the International Covenant on Civil and Political Rights (ICCPR (1966), wherein, article 19 provides for the right to freedom of expression and right to hold opinions without interference.
The question I ask myself is: How can the government strike a balance between freedom of expression and abuse thereof, without actually violating the protected freedom of expression and upholding its state obligation to respect (human rights)? There is a thin line between media freedom and its abuse. Naturally, governments usually do not want to be put in the lime light for wrong actions or misplaced priorities in public expenditure and other economic activities that do not reflect the wishes of its people. On the one hand, governments wish to ‘monitor’ and ‘regulate’ possible malicious falsehood, which can be harmful to national interests and international perception on their ability to respect human rights and good governance. Yet again on the other hand, citizens contend that freedom of expression entails the further exposure governmental wrongdoing – which in turn places pressure on governments to change policies and take positive action actions.
Regulating social media could be susceptible to abuse by those to be entrusted with the power to control what citizens say and express their opinions about. After all, government has state-controlled media house, which can and has been used to promote government-centred news. This could be the balance between the perceived state concern of harmful opinions allegedly spread through social media and government interest to promote good image and protect public order (if need be) by giving counter-information. There is therefore no need to enact or strictly regulate social media in a democratic country.