Introduction
In July 2021, Sierra Leone enacted the Cybercrime and Security Act (CSA), a piece of legislation designed to provide a comprehensive framework for addressing the challenges of the digital age. The government promoted the Act as a necessary tool to combat cybercrime, protect critical national infrastructure, and safeguard citizens from online harms such as fraud and harassment (Government of Sierra Leone, 2021). However, since its inception, the Act has been met with significant criticism from domestic and international civil society organisations, journalists, and human rights advocates. They argue that despite its laudable objectives, the legislation contains provisions that are overly broad and punitive, posing a considerable threat to constitutionally protected rights, particularly the right to freedom of expression.
This essay will critically examine the extent to which the Cybercrime and Security Act 2021 undermines the right to freedom of expression in Sierra Leone. It will argue that while the Act serves a legitimate purpose in regulating the digital sphere, several key provisions concerning cyberstalking, the publication of false information, and state surveillance powers are vaguely worded and disproportionate. These sections create a significant risk of misuse, potentially stifling dissent, critical journalism, and open public discourse, thereby undermining the democratic progress signified by the 2020 repeal of criminal libel laws.
Freedom of Expression in the Sierra Leonean Context
The right to freedom of expression is a cornerstone of Sierra Leone’s constitutional democracy. It is explicitly protected by Section 25(1) of the Constitution of Sierra Leone 1991, which states that "no person shall be hindered in the enjoyment of his freedom of expression," including the freedom to hold opinions, receive and impart ideas without interference, and freedom from interference with correspondence. This domestic protection is reinforced by Sierra Leone's obligations under international law, such as the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples' Rights.
A significant milestone for free expression in Sierra Leone was the 2020 repeal of Part V of the Public Order Act 1965, which had criminalised seditious and defamatory libel for decades. This colonial-era law was frequently used to intimidate, arrest, and imprison journalists and critics of the government (Reporters Without Borders, 2020). Its repeal was widely celebrated as a victory for press freedom and a commitment to fostering a more open society. However, the introduction of the CSA just a year later has raised fears that some of its provisions may reintroduce similar restrictions on speech through the back door, particularly in the online domain where public discourse is increasingly concentrated.
Problematic Provisions of the Cybercrime and Security Act 2021
While the CSA contains many necessary provisions for tackling crimes like data espionage and computer fraud, specific sections have been identified by critics as being particularly hostile to free expression due to their ambiguity and breadth.
Vague Definitions: Cyberstalking and Harassment
Section 35 of the CSA addresses cyberstalking and cyberbullying. It criminalises the use of a computer system to repeatedly send messages that are "grossly offensive, indecent, obscene, or of a menacing character" or sending information known to be false for the purpose of causing "annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will" (Cybercrime and Security Act, 2021, s.35). A person convicted under this section faces a fine and/or imprisonment for up to two years.
The primary issue with this provision lies in its use of highly subjective and undefined terms. Concepts such as "annoyance," "inconvenience," and "insult" are not legal terms of art and are open to wide interpretation. What one person, particularly a public official, considers an "insult" or "annoying" could be viewed by another as legitimate criticism, satire, or political commentary. As noted by Paradigm Initiative (2021), a digital rights organisation, this vagueness gives law enforcement and the judiciary excessive discretion, which could easily be abused to target individuals for expressing opinions that are critical of those in power. This can create a significant "chilling effect," where citizens and journalists self-censor out of fear that their online speech might be interpreted as causing "annoyance" to a powerful individual, thereby undermining robust public debate.
The Return of False News Offences
Perhaps the most controversial provision is Section 44, which criminalises the intentional publication of "false news." It penalises anyone who "publishes or causes to be published any information that is false in a computer system to mislead the public" and where such publication "is detrimental to the security of Sierra Leone or public health or public safety, or to defame a person" (Cybercrime and Security Act, 2021, s.44). The penalties are severe, including a substantial fine and/or imprisonment for up to five years.
This section is problematic for several reasons. Firstly, it effectively reintroduces a form of criminal libel, undermining the spirit of the 2020 repeal of the Public Order Act's libel clauses. By criminalising online defamation, it provides a powerful tool for public figures to silence journalists and critics, bypassing civil remedies for defamation. Secondly, the term "false" is not defined, and determining the truth or falsity of information, especially in a fast-moving news cycle, can be complex. Journalists may make good-faith errors, or information may be contested. Criminalising such acts, rather than encouraging corrections and retractions, threatens to suppress investigative journalism and the rapid dissemination of information. Amnesty International (2021) has warned that such laws are often "used to silence critical voices" and that governments should not be the arbiters of truth. This section places a heavy burden on individuals to verify every piece of information shared online, a standard that is impractical and likely to deter ordinary citizens from participating in online discussions on matters of public interest.
Expansive Surveillance Powers
Part IV of the CSA grants law enforcement agencies wide-ranging powers of investigation, including the ability to intercept, collect, and access stored computer data. Under Section 19, the Minister of Information may authorise the interception of content data, and service providers can be compelled under Section 23 to collect and hand over user information. While these powers require an ex-parte court order, the threshold for granting such orders is a concern, and the ex-parte nature of the application means the subject of the surveillance has no opportunity to challenge it beforehand.
These surveillance powers have a direct impact on freedom of expression. The right to free expression is intrinsically linked to the right to privacy; individuals are less likely to express dissenting or unpopular views if they fear their communications are being monitored by the state (UN Human Rights Committee, 2011). The lack of robust and transparent judicial oversight in the CSA creates a risk that these powers could be deployed to monitor political opponents, activists, and journalists. This surveillance capability, combined with the criminalisation of vaguely defined speech, creates a climate of fear that is detrimental to the free exchange of ideas.
The Extent of the Undermining Effect
The cumulative effect of these provisions is a tangible undermining of freedom of expression in Sierra Leone. The Act hands the state a set of tools that, if misused, can effectively police online discourse and penalise criticism. While proponents argue that such tools are necessary to prevent the spread of dangerous misinformation and protect individuals from harm, the legislation fails to strike a proportionate balance between security and liberty. The provisions are not narrowly tailored to address specific harms but are instead broad enough to encompass legitimate forms of expression.
The Sierra Leone Association of Journalists (SLAJ) has expressed reservations, acknowledging the need for the law but calling on the judiciary to interpret it in a way that does not curtail press freedom (SLAJ, 2021). The fear is not just that the law will be actively used to prosecute dissent, but that its very existence will lead to pervasive self-censorship among journalists and citizens afraid of falling foul of its ambiguous terms. This chilling effect is arguably the most damaging consequence for a democracy, as it silences voices without the need for overt state action.
Conclusion
In conclusion, the Cybercrime and Security Act 2021 represents a clear and present danger to the right to freedom of expression in Sierra Leone. While born from a legitimate desire to regulate a complex digital environment, its text contains fundamental flaws. The vague and subjective language used in sections criminalising cyberstalking and the publication of 'false news' provides a broad scope for arbitrary enforcement, threatening to silence critical voices and stifle public debate. These provisions effectively roll back the progress achieved with the 2020 repeal of criminal libel laws. Furthermore, the expansive surveillance powers granted with limited oversight risk creating a climate of fear that is antithetical to the free and open exchange of information. Although the stated intention of the Act is to enhance security, its poorly drafted provisions have the potential to significantly undermine the democratic and expressive freedoms that are constitutionally guaranteed to the people of Sierra Leone. For the Act to serve its purpose without damaging fundamental rights, it requires urgent review to narrow the scope of its offences and strengthen judicial oversight, ensuring it aligns with both the national constitution and international human rights standards.
References
Amnesty International (2021) Sierra Leone: New cybersecurity law must not be used to restrict freedom of expression. [Online] Available at: https://www.amnesty.org/en/latest/news/2021/07/sierra-leone-new-cybersecurity-law-must-not-be-used-to-restrict-freedom-of-expression/ (Accessed: 15 May 2024).
Constitution of Sierra Leone, 1991.
Cybercrime and Security Act, 2021 (Sierra Leone).
Government of Sierra Leone (2021) Cyber Security and Crime Act 2021. Freetown: Sierra Leone Gazette.
Paradigm Initiative (2021) Analysis of The Sierra Leone Cybercrime Act, 2021. [Online] Available at: https://paradigmhq.org/analysis-of-the-sierra-leone-cybercrime-act-2021/ (Accessed: 15 May 2024).
Reporters Without Borders (2020) Sierra Leone repeals libel laws, a major step for press freedom. [Online] Available at: https://rsf.org/en/sierra-leone-repeals-libel-laws-major-step-press-freedom (Accessed: 15 May 2024).
Sierra Leone Association of Journalists (SLAJ) (2021) SLAJ Statement on the Enactment of the Cyber Security and Crime Act 2021. [Online] Freetown: SLAJ. (Note: Specific URL for this statement may vary, but such statements were reported in local media at the time of the Act's passing).
UN Human Rights Committee (2011) General comment No. 34: Article 19: Freedoms of opinion and expression. CCPR/C/GC/34.
