The Gambia: ARTICLE 19 diagnosis cybercrime bill as ‘threat to crush online dissent’

Team Outpost

 ARTICLE 19, a human rights organisation have diagnosed the draft cybercrime bill as a threat to effectively crush online  freedom of expression and dissent.

“ARTICLE 19 is deeply concerned that a draft cybercrime bill (the Draft Bill) currently under consideration in the Gambia will serve to effectively crush online freedom of expression and dissent”.

On 18 March 2023, the proposed 2023 Cybercrime Bill (the draft Bill) was approved in the 

first reading in the National Assembly of the Gambia and committed to the second reading in the Assembly Business Committee.

ARTICLE 19, further expressed discontent of the  Draft Bill to be ‘fatally flawed in its current state,’ and urge the drafters to address its severe shortcomings to bring it in line with international standards on freedom of expression.

“In our analysis, ARTICLE 19 provides a close look at structural flaws and legal issues in the Draft Bill. We also note that nations, including the Gambia, are currently debating an international convention on cybercrime at the UN level that would require the Gambia to rewrite its domestic legislation, so question the need for the Gambia to create its own bill at this time. While ARTICLE 19 has been critical of the draft Cybercrime Convention at the UN, the Gambia’s Draft Bill does not meet even the low standard that the UN draft convention sets” according to Article 19.

The Bill would make an alarming scope of online speech a crime under the guise of combating ‘cybercrime’. 

“The majority of proposed offences have nothing to do with cybercrime, apart from having the word ‘cyber’ or ‘computer’ attached. Instead they represent a broad effort to criminalise a wide range of speech online, from ‘false news’ and ‘prurient’ speech, to causing ‘harm’ to the ‘self-esteem’ of political figures”.

According to according 19, the Bill would make media organisations, civil society, and their senior leadership individually criminally liable for stories and investigations. 

“Under the Bill, senior leadership of corporate entities would be individually criminally liable for the actions of entities, and they would have the burden to prove that they actively conducted ‘due diligence’ of published content. Given the Bill’s wide criminalisation of ‘false news’ and statements made against the reputation of officials, the Bill would put the editors and leadership of any media or human rights organisation at risk for any story or investigation issued by that entity. This creates a potent weapon for the government to  cripple any opposition media or civil society groups”. 

In addition to several article-specific recommendations, Article 19 strongly recommends:

“The inclusion of a reference to the Gambia’s obligations under international human rights law to protect and promote freedom of expression, as well as an affirmation that no provision of the Bill will be used to stifle the activities of journalists, human rights defenders, or dissidents.

The removal of content-based offences, including in Article 12(7), which punishes ‘pornographic’ and ‘prurient’ content, as they are not compatible with international law.

Provision for a mandatory independent review of any preservation or production orders issued by law enforcement, the elimination of the automatic gag order for recipients, and provision for the opportunity to judicially challenge the validity of such an order. The inclusion of clear requirements of ‘serious harm’ before criminal liability attaches and definition of key terms, such as what it means to ‘expeditiously’ or ‘sufficiently’ comply with orders, in order to provide legal certainty. The striking off of Article 16(2)(vii), which allows compelled decryption and undermines a necessary tool for the realisation of the right to freedom of expression by journalists, human rights defenders, and the public at large. The striking off of articles dealing with offences that are not cyber-dependent offences.

 They have absolutely no place in cybercrime legislation and uniformly constitute restrictions on freedom of expression by criminalising valid criticism of public officials. The striking off of articles that explicitly eliminate the requirement for specific intent to impact computer systems or data. Instead, the Bill must make it clear that every cyber-dependent offence requires specific, dishonest intent. ARTICLE 19 stands ready to offer any additional assistance and expertise that would be helpful to the Gambia as it continues to consider the Draft Bill”.