This chapter reviews the regulation of disinformation from an African human rights’ law perspective, focusing on the right to freedom of expression and the right to vote. It provides an overview of the African regional law framework, specifically the African Charter on Human and Peoples Rights of 1981 (the African Charter) and corresponding jurisprudence. The chapter also analyses the way in which freedom of expression and disinformation laws have been applied in African countries, the aim being to contextualize and illustrate how African regional law plays out at the domestic level, but with an emphasis on the position in South Africa.

When analysing disinformation, commentators often focus on major platforms and their influence on content circulation. Some also examine institutional media, especially broadcasting. Platforms and media are both relevant; both are important in the communicative infrastructure underlying public speech. Whatever the focus, there is an almost endless examination of issues and suggestions regarding what to do about disinformation. Commentary defines false or misleading information in different ways, compares it with historic practices of propaganda and persuasion, considers the emergence of large language models and content they could generate, documents varied legal responses, and considers what should be done. Here, I examine something that is relevant to that work but often not considered directly.

In the digital age, the landscape of information dissemination has undergone a profound transformation. The traditional boundaries between information and news have become increasingly blurred as technology allows anyone to create and share content online. The once-excusive realm of authoritative media outlets and professional journalists has given way to a decentralized public square, where individuals can voice their opinions and reach vast audiences regardless of mainstream coverage. The evolution of the digital age has dismantled the conventional notions of journalism and reshaped how news is obtained and interpreted. This shift has paved the way for the proliferation of fake news and online disinformation. The ease with which false information can be fabricated, packaged convincingly and rapidly disseminated to a wide audience has contributed to the rise of fake news. This phenomenon gained global attention during the 2016 US presidential election, prompting nations worldwide to seek strategies for tackling this issue.

The issue of mass disinformation on the Internet is a long-standing concern for policymakers, legislators, academics and the wider public. Disinformation is believed to have had a significant impact on the outcome of the 2016 US presidential election. Concern about the threat of foreign – mainly Russian – interference in the democratic process is also growing. The COVID-19 pandemic, which reached global proportions in 2020, gave new impetus to the spread of disinformation, which even put lives at risk. The problem is real and serious enough to force all parties concerned to reassess the previous European understanding of the proper regulation of freedom of expression.

The content and enforcement mechanisms of constitutional legislation will radically differ in democratic and authoritarian regimes, whereas the informal rules will be homogenous across regimes and states. The philosophical task of this chapter is to work out some general principles that should be adopted, if science is valued positively and should be protected. These are principles for a quasi-autonomous science. Three of them are substantive and two procedural: (1) Guaranteeing freedom of expression. (2) Mutual rational control by critical discussion. (3) Appropriate steering of scientific competition. (4) Open access to the scientific community. (5) Appropriately fitting formal and informal institutions.

The chapter applies the theoretical resources discussed in the first two chapters to provide a first justification of the idea that internet access should be a human right. This justification is based on the claim that today internet access is practically indispensable for having adequate opportunities for the exercise and enjoyment of political human rights (e.g. the freedoms of expression, free assembly, and information) and civil human rights (e.g. right to life and security of person). Numerous practical examples such as the #MeToo and the Black Lives Matter movements, international political protests and boycotts, and open source intelligence crowdsourcing show that a person without internet access is unfairly limited in their chances to exercise these rights in digitalised societies. Rather, our human rights are greatly enhanced if a person can access the internet. Moreover, because the internet provides a modern, digital public sphere, not having online access is a form of political exclusion. The chapter also responds to the important objection that no new human right to internet access is needed because internet access is sufficiently protected by other human rights.

Media freedom is often curtailed in the wake of terrorist attacks. In this chapter, we ask whether constitutional provisions that are intended – directly or indirectly – to protect media freedom affect the degree to which press freedom is curtailed after terrorist incidents. We find that neither provisions explicitly protecting media freedom nor provisions that might protect media freedom indirectly (such as those guaranteeing the independence of the judiciary) mitigate the post-terror curtailment of press freedom.

Civil and political rights emerged out of fundamental rights conceptions protecting life, integrity, liberty and opinion of a person against an overbearing state. Rights such as the right to life and freedom from ill-treatment may also be at risk from other sources, namely non-state actors in the domestic and other spheres, which have taken on a growing importance in the wake of states’ withdrawal from public functions. While international human rights standards have been developed to provide adequate protection in these circumstances, their implementation requires certain structures without which it is unlikely that core civil and political rights can be effectively protected. There are deep-seated structural factors that can, and have, undermined the effective protection of rights in all systems. Social exclusion, inequality and discrimination in particular are prone to significantly increase vulnerability, as evident in the higher likelihood of persons from certain ethnic or class or national backgrounds being subject to arbitrary arrest, detention, ill-treatment and other violations. Against this background this chapter identifies the normative content of the right to life, the prohibition of torture and other cruel, inhuman or degrading treatment or punishment (other ill-treatment), the right to liberty and security, the right to a fair trial and qualified rights, particularly freedom of expression, and examines the challenge of ensuring their effective protection.

Some degree of hypocritical conformity is necessary, Spinoza argues, for a political society to function. Individuals cannot be free to do whatever they like, even if their conscience conflicts with the law. Yet Spinoza also recognizes that hypocritical conformity has its own pernicious repercussions, specifically the corrosion of civic trust. Spinoza’s conscientious speech warns that conformity corrodes the social trust that undergirds politics since individuals are not able to confidently assess the sincerity of their citizens. Spinoza aims to reconcile this tension by distinguishing speech from action. Dissenters must conform to the law, even if it conflicts with their conscience, but they should be able to express their conscience freely in speech.

John Milton argues that liberty of conscience requires the freedom to express one’s innermost commitments to others, specifically in speech and writing. Hypocritical conformity robs individuals of crucial opportunities to foster political capacities of citizenship, specifically the skill of independent judgment. Milton hints at an intuition that other early modern figures will later foreground – that hypocritical conformity to the state religion hardens dissenters and makes them incapable of being judicious political citizens. If individuals live in a political society that does not afford them liberty of conscience, they will slowly lose the capability to exercise their conscience over time. This freedom requires a robust view of freedom and agency in the public sphere, since it implies far more than an inward freedom of conviction. Conscience must be cultivated independently of political and ecclesiastical authorities and requires confrontation with other individuals in the public sphere, implying the open exchange of ideas and the freedom to express one’s ideas publicly in writing or speech. Milton insists that the circulation of ideas in print allows for an extended opportunity for individuals to exercise their conscience, as the written word persists over time longer than speech, which dissipates in the immediate moment, only to be recounted by witnesses. Liberty of conscience is so crucial to Milton’s understanding of freedom that he describes it as the highest liberty above all liberties, even justifying other political freedoms.

In this chapter, we offer a number of recommendations for those who are in a position to do something technically, structurally, and legally or otherwise to minimize the risk of psychological harm that comes with the public’s use of social media and other online sites, especially their engagement with graphic or other upsetting digital material. We outline the policy implications of what we’ve learned from more than three years of desk research and original interviews that we have conducted with dozens of people, ranging from technologists to psychologists to content moderators to human rights investigators and beyond. We first spotlight the competing interests that underscore social media companies and governments’ policy deliberations with regard to content moderation. Next, we lay out our suggestions for companies, governments, and individuals with regard to how to improve the experiences of both content moderators and everyday social media users. We close with suggestions for creating a more “pro-social” online environment, one that not only better mitigates the risks of psychological harm but potentially encourages greater connection, resulting in wellness and even flourishing.