ARTICLE 19 is concerned about the text and misuse of the Ethiopia hate speech and disinformation law against those who are critical of the Government’s policies. The Proclamation to Prevent the Spread of Hate Speech and False Information, that took effect on 23 March 2020 is extremely problematic from a human rights and free speech perspective and should be immediately revised. In any case, while the Proclamation remains in effect, it must not be misused and the Government must not abuse its power under the pretext of addressing the public health crisis.
ARTICLE 19, in October 2019, analysed a draft of the Proclamation to Prevent the Spread of Hate Speech and False Information (the Draft Proclamation) in the Federal Democratic Republic of Ethiopia. In that analysis, we found that the Draft Proclamation failed to comply with international human rights standards as it imposed criminal sanctions on anyone that published, disseminated, or even possessed content falling under extremely broad definitions of “hate speech” and “false information.” We also cautioned that the Draft Proclamation problematically delegated censorship obligations to social media service providers to monitor and takedown content. In sum, we observed that protected forms of expression were ‘exceptions’ to the limitations under the law. This presents the permissible scope of restrictions backwards. Permissible expression is the norm, not the exception. We recommended that the Government of Ethiopia withdraw the Draft Proclamation in favour of adopting an entirely new approach and enacting a legal framework for the right to equality and non-discrimination to address historical tensions, which we observe are severe.
ARTICLE 19 has now analysed the adopted version of the law, the Hate Speech and Disinformation Prevention and Suppression Proclamation, 2020 (the 2020 Proclamation) and is concerned that many of the problems raised by the Draft Proclamation have failed to be addressed. While some minor changes appear to have been made consistent with our prior recommendations, which we acknowledge, they still fail to make the 2020 Proclamation compatible with relevant international standards. It is still wholly unclear to content authors and hosts what will or will not subject them to criminal penalty under the Proclamation. The essence of our concerns remain the same, as the 2020 Proclamation still broadly defines ‘hate speech’ and ‘disinformation’ (substituted in the place of ‘false information’ in the prior Draft).
ARTICLE 19 highlights the following issues in the 2020 Proclamation:
• Continued criminalisation of hate speech and disinformation: While some aspects of the wording in the definitions of hate speech and false information in the Draft have been changed, we are concerned that their core problems of overbreadth remain. “Hate speech,” for instance, as defined in Article 2 includes “speech that deliberately promotes hatred, discrimination or attacks against a person or a discernible group of identity, based on ethnicity, religion, race, gender or disability.” This is particularly problematic given that Articles 4 and 5 of the law prohibit “any” dissemination of these forms of content on a multitude of media, including broadcast, print, or social media using text, image, audio, or video.
We highlighted in our previous analysis the issues with this definition of hate speech, particularly that international standards differentiate between types of ‘hate speech’ based on the severity. As for the most severe instance, we recommend keeping the language consistent with the nuanced language of Article 20 para 2 of the International Covenant on Civil and Political Rights (ICCPR) and the guidance of the six-part test under the Rabat Plan of Action. Specifically, Article 20 para 2 of the ICCPR requires an element of incitement to violence, discrimination, or hostility, which is still absent in the 2020 Proclamation. Previously the Draft Proclamation punished the mere possession of restricted speech, which has been removed.
Finally, any limitations on information must adhere to the tripartite test of permissible restrictions under international law; making the Government of Ethiopia the sole arbiter of what information is “true” or “false” is wholly incompatible with the guarantees of the ICCPR.
• Disproportionate penalties: We observe that the criminal penalties provided for in Article 7 remain severe, including terms of imprisonment. The penalties are separated according to whether the offense of hate speech or disinformation resulted in violence or public disturbance. They are also increased according to whether individuals or groups have more than 5,000 followers, which appears to punish speakers for the amount of followers they have or assume that they may have greater resources with a greater following (this is not the case). However, we continue to observe that under international human rights standards, the obligations to prohibit the most severe types of ‘hate speech’ – that is incitement to violence, discrimination or hostility – require States to introduce a variety of measures as sanctions. The selection of sanctions in a particular case should be guided by an assessment of the level of severity of the offence. States should primarily employ a range of civil and administrative law sanctions; moreover, the necessity test under Article 19 of the ICCPR requires that the least intrusive effective remedy should be employed when restricting speech in order to protect overriding public or private interests. Any such restrictions, however, must conform to the three-part test under Article 19(3) of the ICCPR.
• Service providers continue to have problematic obligations to censor content under very short timeframes: Article 8(1) requires service providers to “endeavour to suppress and prevent the dissemination of disinformation and hate speech through its platform.” It further provides that providers “act within twenty-four hours” to remove infringing content “upon receiving notifications about such communication.” We observe that these short takedown notices are alarmingly short and present a host of due process concerns. The 2020 Proclamation does not provide who may provide such a ‘notice’ or the process for providing it. Does this mean any person can compel a social media provider to take down content? Can the government? There is no requirement for notifying a user of a takedown of their content, and no opportunity for judicial oversight or review by a similar independent adjudicatory authority. Neither is an appeals mechanism described. Under this language, users effectively have no rights.
The Proclamation is utterly silent on whether the most minimal of procedural safeguards even exists. While Article 8 is silent on whether penalties exist if providers fail to abide by these provisions, the onerous nature of penalties in other sections means that providers are more likely to err on the side of removing content (censorship) in order to avoid sanction. This is incompatible with Ethiopia’s obligation to protect and promote freedom of expression, and is particularly problematic given the need for open public communication channels during a global pandemic.
• Misapplication of relevant standards on limitations: Article 6 lists several categories of speech that remain as ‘exceptions’ to the limitations proscribed in the 2020 Proclamation. These categories of speech include academic or scientific study, news reports and political critique, artistic performance, and religious teaching. Article 6(2) provides that speed will not be considered to be disinformation if “a reasonable effort has been made under the circumstances by the person making the speech to ensure the veracity of the speech or if the speech is more inclined to political commentary and critique instead of being a factual or news report.” We observe that this provision gets the relevant international standards backwards. It should not be the burden of speakers to assert why their speech “will not be considered” impermissible. Instead, the active burden is on the Government of Ethiopia to establish, under international law, why any restrictions are legitimate, necessary, and proportionate. Based on the 2020 Proclamation as written, it has failed to do so.
ARTICLE 19 also highlights that punishing so-called ‘false information’ with criminal penalties threatens to have a severe chilling effect on reporting, which is particularly urgent in light of the COVID-19 pandemic. Reports in January 2021 indicated Ethiopia suffered some of the highest COVID-19 infection rates on the African continent. Open and transparent journalism and investigation on a public health emergency, by both domestic and foreign entities, is necessary in order to save lives and protect public health.