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On Disinformation, Elections and Ethiopian Law

Published online by Cambridge University Press:  21 September 2021

Kinfe Micheal Yilma
Kinfe Micheal Yilma*
Affiliation:
Addis Ababa University, Addis Ababa, Ethiopia
*
E-mail: [email protected]; [email protected]
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Abstract

Disinformation has become a formidable challenge to the integrity of electoral processes as well as the internal political stability of many countries. This state of affairs has spurred a wave of new regulatory measures in several countries. From stringent rules governing dissemination of political advertisements via social media platforms to media literacy programmes, the past few years saw the introduction of legislative and non-legislative measures in many jurisdictions. Ethiopia is no exception in introducing measures to address the problem. This article examines Ethiopia's policy responses towards addressing the impact of disinformation on the integrity and credibility of elections. It argues that measures taken thus far in Ethiopia appear to address the impact of disinformation on national security and social harmony. As such, Ethiopia has not taken tailored measures to address the impact of disinformation on its democratic aspirations, particularly in holding free, fair and democratic elections.

Keywords

Electionsdisinformationfake newssocial mediademocracyEthiopia
Type
Research Article
Information
Journal of African Law , Volume 65 , Issue 3 , October 2021 , pp. 351 - 375
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Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press on behalf of SOAS University of London

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Footnotes

*

Assistant Professor of Law, Addis Ababa University Law School, Ethiopia. The author gratefully thanks his colleagues Kokebe Wolde and Halefom Hailu Abraha for comments on the earlier versions of the article. After this article went to press in early May 2021, Ethiopia held highly disputed general elections in most parts of the country on 21 June 2021, however this article has considered developments only up until 10 May 2021.

References

1 See, e.g., “EU-bashing stories are misleading voters – here are eight of the most toxic tales” (19 May 2016) The Guardian, available at: <http://bit.ly/1TgGcXB> (last accessed 20 February 2021).

2 See generally, “Joint statement from the Department of Homeland Security and Office of the Director of National Intelligence on election security” (2016), available at: <https://bit.ly/32aRJAI> (last accessed 20 February 2021).

3 For a summary of regulatory responses in these nations, see “Government responses to disinformation on social media platforms” (September 2020) Library of Congress, available at: <https://www.loc.gov/law/help/social-media-disinformation/> (last accessed 20 February 2021).

4 For a summary of regulatory responses in Egypt, see “Government responses to disinformation on social media platforms: Egypt” (September 2020) Library of Congress, available at: <https://www.loc.gov/law/help/social-media-disinformation/egypt.php> (last accessed 20 February 2021).

5 For more on this, see KM Yilma “Fake news and its discontent in Ethiopia” (2017) 5/1 Mekelle University Law Journal 98 at 102–5.

6 See generally, C Wardle “Fake news: It's complicated” (16 February 2017) First Draft News, available at: <https://bit.ly/3qzwwdj> (last accessed 20 February 2021).

7 “Ethiopia leader at the UN assembly decries use of social media to spread messages of hate and bigotry” (21 November 2016) UN News, available at: <https://bit.ly/2GElK3z?> (last accessed 20 February 2021).

8 Hate Speech and Disinformation Prevention and Suppression Proclamation No 1185/2020, Federal Negarit Gazeta.

9 Criminal Code of Ethiopia, Proclamation No 414/2004, Federal Negarit Gazeta. Other Ethiopian laws are also relevant to disinformation regulation, one being the Media Proclamation. This law stipulates that any broadcasting content and source of any programme, including news, should be accurate. Further, it requires online media outlets to refrain from the dissemination of disinformation. Violation of this proviso will be punishable with a fine of up to 50,000 ETB. See Media Proclamation No 1238/2021, Federal Negarit Gazeta, arts 61(9), 68(2)(b) and art 75(1)(j).

10 Cyber Army Development Institute Establishment Council of Ministers Regulation No 401/2017, Federal Negait Gazeta.

11 “Draft hate speech and disinformation prevention and suppression proclamation: informal and preliminary comments of the UN Special Rapporteur on Freedom of Opinion and Expression” (5 December 2019), available at: <https://bit.ly/2ZgKJQL> (last accessed 20 February 2021).

12 Proc No 1185/2020, above at note 8, art 9. Note that this legislation concerns two related problems: hate speech and disinformation, which conceptually exhibit a number of overlaps. For instance, a given information or speech may embody the character of both disinformation and hate speech, and often both may have similar consequences in real life. Nonetheless, this article deals only with the disinformation aspect of this law. Note, though, that while the law appears to regulate “disinformation” alone — thereby excluding other cognate notions such as “fake news” and misinformation, the provision that states its objectives mentions controlling and suppressing “other related false and misleading information” as well as disinformation as one of the three legislative objectives. But substantive parts of the law do not address these notions. See id, art 3(3).

13 “Ethiopia's hate speech and disinformation law: the pros, the cons, and a mystery” (19 May 2020) Access Now, available at: <https://cutt.ly/hluQCBF> (last accessed 20 February 2021).

14 “Ethiopia passes controversial law curbing ‘hate speech’” (13 February 2020) Al Jazeera, available at: <https://bit.ly/2R4HIi8> (last accessed 20 February 2021).

15 Proc No 1185/2020, above at note 8, art 3(2).

16 Ibid.

17 But the law drew also sharp criticism from a human rights perspective, particularly in light of its impact on the right to freedom of expression. See, e.g., “Ethiopia: Bill threatens freedom of expression” (19 December 2019) Human Rights Watch, available at: <https://bit.ly/3m9GlNw> (last accessed 20 February 2021).

18 Proc No 1185/2020, above at note 8, art 2(7).

19 Id, art 5.

20 R Ali “Technology neutrality” (2009) 14 Lex Electronica 1 at 11–12.

21 Proc No 1185/2020, above at note 8, art 7(4). Cf Law no 180 of Egypt, Al-Jaridah Al-Rasmiyah, vol 34 (bis)(h) (27 August 2018) art 4.

22 Proc No 1185/2020, above at note 8, art 8(3).

23 Id, art 8(1).

24 HH Hailu “The problems with Ethiopia's proposed hate speech and misinformation law” (4 July 2019) LSE Media Policy Blog, available at: <https://bit.ly/2R5ZIsA> (last accessed 20 February 2021).

25 Proc No 1185/2020, above at note 8, art 8(2). Note that by virtue of the newly enacted media law, EBA is now renamed as the Ethiopian Media Authority to reflect its regulatory reach beyond the broadcasting sector – and hence covering online media – but its role vis-à-vis disinformation is not provided for in this omnibus legislation. See Proc No 1238/2021, above at note 9, arts 4–6 and arts 2(4), 89.

26 Id, art 8(4).

27 See generally LOI no 2018–1202 du 22 Décembre 2018 Relative à la Luttecontre la Manipulation de l'information.

28 Proc No 1185/2020, above at note 8, art 8(5).

29 See, e.g., “California joins other states in passing new media literacy law” (23 September 2018) VOA News, available at: <https://bit.ly/2ZhXLh8> (last accessed 20 February 2021). This appears to be gaining momentum in other parts of the US as well. According to a recent report, for instance, legislatures in 14 US States have taken measures to include media literacy in school curricula. See “US media literacy policy report 2020: A state-by-state survey of the status of media literacy education laws for K–12 Schools” (2020) Media Literacy Now, available at: <https://bit.ly/3dt1GiU> (last accessed 20 February 2021).

30 Proc No 1185/2020, above at note 8, art 8(6).

31 Ethiopian Human Rights Commission Establishment Proclamation No 210/2000 (as amended by Proclamation No 1224/2020) Federal Negarit Gazeta, arts 5–6.

32 “Ethiopian police hold journalist Yayesew Shimelis pending terrorism investigation” (6 April 2020) Committee to Protect Journalists, available at: <https://bit.ly/2wMJ5vp> (last accessed 20 February 2021).

33 “Journalist's detention sparks concerns over Ethiopia's new hate speech law” (5 June 2020) International Press Institute, available at: <https://bit.ly/3i8KIGc> (last accessed 20 February 2021).

34 Constitution of Ethiopia Proclamation No 1/1995, Federal Negarit Gazeta, art 22.

35 “Ethiopia: Free speech at risk amid Covid-19” (6 May 2020) Human Rights Watch, available at: <https://bit.ly/335FZid> (last accessed 20 February 2021).

36 “AMDF condemns arrest of Ethiopian journalist Temesgen Desalegn” (20 February 2021) Africa Media Development Foundation, available at: <https://bit.ly/2HEzbRR>. While this article was being readied for press, another journalist – Bekalu Alamirew – has been arrested for alleged disinformation, among other offences, but released on bail a few weeks later. See “Six journalists arrested in Ethiopia on trumped-up charges” (12 November 2020) International Press Institute, available at: <https://cutt.ly/8hjwPNJ> (last accessed 20 February 2021).

37 “EPRDF: Let's play our core role through active participation in the social media space” (11 October 2016) Addis Ra'e (Addis Ababa) at 76–96 [Amharic: author's translation].

38 Regulation No 401/2017 above at note 10, art 3(2).

39 Id, art 3(1) and art 4(1).

40 Dissolution of Cyber Army Development Institute Regulation No 458/2019, Federal Negarit Gazeta, art 2.

41 Id, art 3.

42 Information Network Security Agency Reestablishment Proclamation No 808/2013, Federal Negarit Gazeta, art 6(4). Note that per a secondary legislation meant to further this law, taking “counter-measures” falls under INSA's broad power of launching “cyber operations” to (a) collect digital forensic evidence, (b) prevent cyber and electromagnetic attack against national sovereignty, or (c) prevent cyber action that threatens national security or citizens’ security. See Information Network Security Agency Reestablishment Proclamation Execution Council of Ministers Regulation No 320/2014, Federal Negarit Gazeta, art 9 and art 2(5).

43 “Draft bill introduces naval, cyber and space force” (1 December 2018) The Reporter, available at: <https://bit.ly/37J8J43> (last accessed 20 February 2021).

44 See generally, King, G et al. “How the Chinese government fabricates social media posts for strategic distraction, not engaged argument (2017) 111 American Political Science Review 484CrossRefGoogle Scholar.

45 Id at 28–30.

46 “Sweden to create new authority tasked with countering disinformation” (15 January 2018) The Local, available at: <https://bit.ly/2FcFqe2> (last accessed 20 February 2021).

47 A 2016 joint report of Amnesty International and Open Observatory of Network Interference documents that Ethiopia notoriously blocked dozens of websites which, according to the government, disseminate content deemed objectionable for social, political and security reasons. See generally “Ethiopia offline: evidence of social media blocking and internet censorship in Ethiopia” (2016) Amnesty International and Open Observatory of Network Interference, available at: <https://cutt.ly/IlppKCi> (last accessed 20 February 2021). Unblocking most of such sites was, however, among measures taken with the reshuffle in government in mid-2018. See “Ethiopia allows access to over 260 websites” (22 June 2018) Committee to Protect Journalists, available at: <https://bit.ly/2Fh4bG9> (last accessed 20 February 2021).

48 See, e.g., “Resurgence of internet censorship in Ethiopia: Blocking of WhatsApp, Facebook and African arguments” (14 August 2019) Open Observatory of Network Interference, available at: <https://cutt.ly/Ylupzyl> (last accessed on 20 February 2021).

49 Regulatory measures such as internet shutdowns are also referred to as “gateway regulation” as they target the gateway of communication. See, e.g., Eko, L “Many spiders, one worldwide web: Towards a typology of internet regulation” (2001) 6 Communication Law and Policy 445CrossRefGoogle Scholar at 475–77.

50 Recurrent shutdowns have occurred in Ethiopian in mid-2019 following a series of political assassinations and disturbances. See, e.g., “Ethiopia internet shutdown continues following reported coup attempt” (24 June 2019) Net Blocks, available at: <https://bit.ly/35iFPa0> (last accessed 20 February 2021). At the time of writing in late February 2021, internet shutdown is in place in the regional state of Tigray where there is an ongoing war between Tigray Defence Forces (TDF), on the one hand, and, since early November 2020, Ethiopia's National Defence Forces and its domestic and regional allies on the other. See, e.g., “From Myanmar to Ethiopia, internet shutdowns become favoured tool of regimes” (11 February 2021) CBC, available at: <https://bit.ly/3tJw5hD> (last accessed 20 February 2021).

51 KM Yilma “Internet shutdowns and the law in Ethiopia” (July 2020) Medium, available at: <https://bit.ly/3jyFFif> (last accessed 20 February 2021); see also KM Yilma “Network disruptions and the law in Ethiopia: A legal guide” (Internews, May 2021).

52 “Twitter backlash after Ethiopia PM's internet ‘not water or air’ Threat” (3 August 2019) Africa News, available at: <https://bit.ly/3bF0ia2> (last accessed 20 February 2021).

53 Report of the UN Special Rapporteur on the Promotion and Protection of Freedom of Opinion and Expression (29 April 2020) paras 51–52.

54 Comments by the State on the Report of the UN Special Rapporteur on the Promotion and Protection of the Freedom of Opinion and Expression on His Visit to Ethiopia (15 April 2020) para 20.

55 Proc No 808/2013, above at note 42, art 6(4).

56 See generally Gunneriusson, H and Ottis, R “Cyberspace from the hybrid threat perspective” (2013) 12 Journal of Information Warfare 67Google Scholar.

57 Report of the UN Special Rapporteur, above at note 53, para 50.

58 Comments by the State on the Report of the UN Special Rapporteur, above at note 54, para 20.

59 Computer Crime Proclamation No 958/2016, Federal Negarit Gazeta, art 32(5). For more on this point, see Yilma, above at note 51. Note also that laws imposing a State of Emergency (SoE) – also called “martial laws” – often provide a legal basis, albeit tentative, for network disruption in Ethiopia. A 2020 SoE law declared in the regional state of Tigray, for instance, empowers the Task Force instituted to oversee the decree to “cause the closure or termination of any means of communication where it is necessary to maintain the Constitution and constitutional order”. See State of Emergency for the Protection of the Constitution and Constitutional Order Proclamation No 4/2020, Federal Negarit Gazeta, art 4(5) and State of Emergency Proclamation for the Prevention of Constitution and Constitutional Order No 4/2020 Ratification Proclamation No 1228/2020, Federal Negarit Gazeta.

60 See generally B Martin-Rozumiłowicz and R Kužel “Social media, disinformation and electoral integrity” (International Foundation for Electoral Systems Working Paper, August 2019), available at: <https://bit.ly/3iR50Xk> (last accessed 20 February 2021).

61 “Democracy Index 2019” (2020) The Economist Intelligence Unit (London) at 13.

62 “Ethiopia's Tigray holds regional election in defiance of federal government” (9 September 2020) Reuters, available at: <shorturl.at/fTVW6> (last accessed 20 February 2021).

63 “Sidama referendum: Over 98% vote ‘YES’ for Ethiopia's 10th regional state” (23 November 2019) Africa News, available at: <shorturl.at/cfiEJ> (last accessed 20 February 2021).

64 See generally, Tokaji, D Election Law in a Nutshell (2nd ed, West Publishing, 2016)Google Scholar.

65 Electoral, Political Parties Registration and Election's Code of Conduct Proclamation No 1162/2019, Federal Negarit Gazeta, art 129(2).

66 Id, art 130(7) and art 144(3). In addition, there is a more positive duty on political parties to contribute towards the realization of the right to vote and be elected. See id, art 129.

67 Id, art 3(2) and Preamble, para 8.

68 Id, arts 78, 81–82, 111.

69 Id, art 108.

70 See, e.g., A Bill to Enhance Transparency and Accountability for Online Political Advertisements by Requiring Those Who Purchase and Publish Such Ads to Disclose Information about the Advertisements to the Public and for Other Purposes (Honest Ads Bill) [116th Congress, 7 May 2019]; Elections Modernization Act (Bill C-76) [13 December 2018].

71 See, e.g., Supreme Court Order for Pre-certification of Political Advertisement on Electronic Media, in Letter from Election Commission of India to Chief Secretaries et al (13 September 2018), available at: <https://perma.cc/U2MM-U862> (last accessed 20 February 2021).

72 Proclamation No 1162/2019, above at note 65, arts 43–44.

73 Id, art 44 (dealing with the use of mass media by political parties and candidates as well as coverage of elections by journalists, yet key details are relegated to future secondary/tertiary legislation); see also National Electoral Board of Ethiopia Establishment Proclamation No 1133/2019, Federal Negarit Gazeta, art 7(5).

74 Id, art 135.

75 “The Cambridge Analytica story, explained” (2019) The Wired, available at: <https://bit.ly/2FuOGdP> (last accessed on 20 February 2021).

76 “Cambridge Analytica in Africa – What do we know?” (10 January 2020) Democracy in Africa, available at: <https://bit.ly/3jrSlY4> (last accessed 20 February 2021).

77 Proc No 1162/2019, above at note 65, art 161.

78 Ethical Education and Social Media Use by Political Parties Directive (Draft, October 2020).

79 Criminal Code, above at note 9, arts 466–76. Note that the more recent criminal piece of legislation, the cybercrime law, criminalizes dissemination of spam but concerns only unsolicited communications of commercial nature. See Proc No 958/2016, above at note 59, art 15.

80 See generally, “Challenging data exploitation in political campaigning” (June 2020) Privacy International.

81 Draft Personal Data Protection Proclamation (April 2020).

82 Id, art 63.

83 Id, art 2(28)(e) and arts 18–19.

84 Id, art 2(24) and art 42.

85 Id, caps 3 and 4.

86 Advertisement Proclamation No 759/2012, Federal Negarit Gazeta, art 2(1).

87 Id, art 25.