“THE NEWS IS FAKE OR THE FAKE IS NEWS”: HIGHLIGHTING THE OFFENCE OF PUBLICATION OF FALSE NEWS IN GHANA by Nana Kwesi Essuman Pocco

The 21st century stands tall in the world for inventions and innovations. This era birthed many technological advancements geared towards making the world a better place. Improvement of communication and the sharing of information through the internet and modern media cannot be underestimated. More so, the demerits of these strides cannot also be overlooked. One of the cancers caused by this advancement is the indiscriminate publication and circulation of fake news. News which is unverifiable and portrays cock-and-bull stories just to trend, thereby causing traffics on these sites. The writer’s focus is not solely on the impact of these falsehoods on the readers or audience but essentially on the sanction regime regulating this untoward behaviour of disseminating fake news. In this piece, the writer further proposes a modification to the sanction regime considering how prevalent the proscribed act is and how it may rise if not nipped in the bud.

 

The criminal law of Ghana provides under section 208 of the Criminal and Other Offences Act, 1960(Act 29) that:

  • A person who publishes or reproduces a statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace knowing or having reason to believe that the statement, rumour or report is false commits a misdemeanour.
  • It is not a defence to a charge under subsection (1) that the person charged did not know or did not have reason to believe that the statement, rumour or report was false, unless it is proved that, prior to the publication, that person took reasonable measures to verify the accuracy of the statement, rumour or report. [emphasis]

 

Considering the above provision, and taking the false publication of the number of confirmed cases of the Corona Virus as at 13th April, 2020 as a case study. The intention of the publishers could be either or both of the following:

Firstly, the perpetrators might have had a lead from a reliable source with such figures and/or secondly, might have also out of ill-will published that news for a particular reaction from the public. The obvious reaction from the public was the fear of the instant rise in the number of confirmed cases of the virus. When such stories are published the law initially deems the publishers to know or have reason to believe that their publication is false. The full import of the provision is made when subsection (2) is further read in conjunction with subsection (1). Simply put, where a person publishes or reproduces fake news (statement, rumour or report) or disseminates news  which is or likely to the false to the public, then a burden is placed on him by law to prove that he took reasonable measures to verify the accuracy of the news. Also, an accused person cannot rely on the fact that he or she did not know that the statement was false. This suggests that in such situations an accused person cannot ordinarily rely on section 29(1)- The defence of mistake of fact, of (Act 29) which provides that:

 

“A person shall not be punished for an act which, by reason of ignorance or mistake of fact in good faith, that person believes to be lawful.”

 

When sections 208(2) and 29(1) are read together, it seems that the accused may be left off the hook because he did not know that the news was fake. But the latter part of provision 29(1) of the Act indicates that such ignorance or mistake must be in good faith. Good faith in this instance would be negated where the accused  failed to take reasonable measures to verify the accuracy of the report. ‘Mr. Perpetrator’, after publishing the false story on the confirmed cases of Corona Virus in Ghana, how would you prove beyond reasonable doubt that the purported number of cases you presented can be verified as accurate. Also, when compared with the Ministry of Information or any authorised body in charge of briefing the public, can it be confirmed? Certainly not! Let us not be contrary spirits to the spreading of calm in these times, because your ignorance this time round will not only cost you but shall be exorcised by the deterring hands of the law.

 

In discussing the punishment attached to the offence, the writer posits that a misdemeanour is too lenient a punishment for such an offence. A misdemeanour according section 1 of (Act 29) must be construed with section 296 of the Criminal and Other Offences Procedure Act, 1960 (Act 30) which under section 296(4) provides that:

 

Where a criminal offence which is not an offence mentioned in subsection (5), is declared by an enactment to be a misdemeanour and the punishment for that offence is not specified, a person convicted of that offence is liable to a term of imprisonment not exceeding three years.

 

In other words, a misdemeanour will fetch a convicted person a term of imprisonment not exceeding 3 years. Generally, the main aims for the imposition of punishments are for retribution, deterrence, prevention, reformation, rehabilitation and justice. The punishments attached to misdemeanors are lessor than those of felonies. This is because at common law, a misdemeanour is whatever that openly outraged decency and is injurious to public morals. Rationally, the aim of such punishments for offences considered misdemeanours are unlikely to be for retribution. Here, the notorious element of the Mosaic Law (eye for an eye a tooth for a tooth) or the perception of seeking justice at all cost or the philosophy of giving the accused the punishment commensurate to the act, is not the inspiration. Since the punishment appears to be Utilitarian, it is thereby intended to deter the perpetrator and other potential perpetrators from committing this offence.

 

But how deterring is this punishment? It appears that the gravity of the offence was not core to the imposition of the punishment by the Legislators. The glaring consideration was the fact that, publication of false stories affect public peace and morals hence, should be prevented. So just like Mabboit, J.D. stated affirming Betham’s position that punishment as deterrence is the threat of punishment and not the punishment itself.

 

In my view, the Legislators should consider the gravity of a crime.  In publishing fake news, first of all, the audience to such stories is the general public. The audience is not limited to all persons who receive such news and react to their detriment. Anybody and everybody can be victims to it. Fake news which causes harm to everybody should not be taken lightly in times like these where any panicking-alarm could easily result in death. These drastic times call for stringent laws to check the recalcitrant who would take advantage of the situation. Like Walker emphasized, sometimes punishments tend to be much more deterring for the public good than what is deserved in a particular case because the public good determines the extent. In this situation, the 21st century Ghanaian society must be deterred, and such deterrence will do good if modified to suit the times.

Secondly, the writer finds the profound statement of Lord Atkin in Donogue v. Stevenson to be useful, though, directly inapplicable to the letter in public law. The infamous quote is:

The rule that you are to love your neighbour becomes in law: You must not injure your neighbour, and the lawyers’ question: Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

 

The statement resonates a moral obligation on all and sundry not to be the cause of another’s woes. It is the writer’s view, that inherently in every Ghanaian at this time is the duty not to injure his or her neighbour. Not only by encouraging social distancing, but also by ensuring that he or she does not create a situation of fear injurious to the mental health, which can cause further consequential damage to the viewers, listeners and readers of such news.

 

The law makers are beckoned to consider making such laws deterring enough. The writer proposes that, for the greater public good, and to discourage such acts, in addition to the prison term there should be a penalty of a fine. Unlike Zimbabwe and Eswatini where publishing such information will lead a convicted person to a fine, and imprisonment of up to 20 years, the Legislators in Ghana should not consider imposing a sentence like Zimbabwe’s because it is too harsh. But, should adopt the imposition of fines at discouraging penalty units in addition to the existing term of imprisonment. Criminal prosecution and penalties provide deterrence in a way that civil actions cannot. Fake news should be frowned upon with every wrinkle of deterrence available to the state.

 

 

REFERENCES

  1. Criminal and Other Offences Act 1960, (Act 29)
  2. Criminal and Other Offences Procedure Act 1960, (Act 30)
  3. Donoghue v. Stevenson (1931) HL
  4. Mabboit J. D.: “Punishment” (1939) 48 MIND 152
  5. Nigel Walker: Sentencing Theory, Law and Practice (1985)
  6. Timothy Fish H. Khanyo and Farise J. Mavedzenge: Imposition of Sanctions COVID-19 published by Mali and Guardian.