Q&A – 5 March 2018

False messages forwarded on facebook and whatsapp

There is an article someone published maliciously on facebook and circulated through whatsapp. Apart from being false, it has information that is distorted intending to cause panic amongst people. This information has been reported to facebook who have not yet removed it from their site despite several reminders. The person who has posted it was using a pen name, but I have since found out his IP address, and true identity. Infact it is a gang which gets paid by competitors/individuals to defame, damage other businesses and spread rumours. It is quite evident that the gang is a threat to all. Whilst they might seem to be on your side today, and as a recipient you might enjoy reading the content today, they could write about you tomorrow. The whatsapp they circulate are more dangerous than the articles in newspapers, and they are by far a big threat to everyone. Is there no way these persons can be taken to task? What about the people who indulge in forwarding such messages. Can they also not be held responsible for forwarding false messages? Please guide me as I want to take solid action.
TT, Dar

The Q&A with FB Attorneys team has been asked similar questions more than once, but there is a twist to your question this time, and hence we respond to it again. It is important that you read this response to the end as it may save a lot of readers, most of whom are on facebook and whatsapp, a lot of trouble.

We begin by quoting section 16 of the Cyber Crimes Act 2015 that states any person who publishes information or data presented in a picture, text, symbol or any other form in a computer system knowing that such information or data is false, deceptive, misleading or inaccurate, and with intent to defamethreaten, abuse, insult, or otherwise deceive or mislead the public or counselling commission of an offence, commits an offence, and shall on conviction be liable to a fine of not less than five million shillings or to imprisonment for a term of not less than three years or to both.

The facebook or whatsapp message needs to be either false, deceptive, misleading or inaccurate, and which causes defamation or misleads the public for it to be a criminal offence. It is quite clear that what you have described falls within all fours of this section and the persons responsible can be reported to the police who will proceed with appropriate arrests and prosecution. The jail time is 3 years if found guilty.

We have noted that people take this very lightly but you must know that there are a number of cases of people who have been arrested and charged in Courts in Tanzania for offending section 16 of the Cyber Crimes Act. For example, if someone circulates a false message about your business, or yourself, or about anything, there is a high chance that person is offending the law and can be sentenced to upto 3 years imprisonment. The law has been enacted specifically to counter the growing usage of technology, and it is not hard to find out the origin of the message.

For those forwarding messages in groups, including group administrators, can also be liable under the same section. The defence of simply saying that they forwarded a message, or that they are merely group administrators and hence not the perpetrators, is not a valid defence. Hence, those on whatsapp as administrators or as members, or running facebook groups, must be aware that any message that is false, deceptive, misleading or inaccurate which leads to defamation, threats, abuse, insult, or with intent to mislead the public can lead to a criminal prosecution.

The police forces has a special no nonsense unit that deals with cyber crime. Therefore, before posting, reposting and/or forwarding a message, one must be very careful. Group administrators must also closely monitor what is going on in their groups as they can also be charged.

In addition to the criminal sanctions above, where the police and prosecutor will take charge, you also have some civil measures at your disposal.

Since you now know these persons, you can proceed file a defamation suit amounting to millions or even billions of shillings against them, including likely against facebook and whatsapp as publishers. Defamation is an all-encompassing term that covers any statement that hurts someone’s reputation. If the statement is made in writing and published, the defamation is called libel. If the hurtful statement is spoken, the statement is slander.

To win in a defamation case, you must prove that (i) someone made a statement, (ii) that the statement was published, (iii) the statement caused you injury, (iv) the statement was false and finally that the statement doesn’t fall into a privileged category ie was not made in Court or parliament.

Having read your question, we believe that the above are provable by you, and considering that you have proof of where the statements originated from (proof is on you) you can, in addition to reporting this to the cyber crime unit in the police forces, proceed to sue the individuals.

Lastly, a piece of advise for all those who are overactive on facebook and whatsapp and get carried away, sometimes ‘innocently,’ in forwarding messages (sometimes without reading them) that are potentially harmful, be aware of what you forward. It is one thing forwarding a joke which is harmless, but a serious crime to forward something along the lines we have described above. If you receive a message that is false, deceptive, misleading or inaccurate and potentially defamatory, it is better to delete it then to forward it as you may end up in jail. The few minutes of pleasure you derive from forwarding it, might cost you your freedom for 3 years. The same applies to the administrators of groups.