TRUTH ON TRIAL IN GHANA’S DIGITAL AGE: RETHINKING MISINFORMATION AND DISINFORMATION

INTRODUCTION

In the digital age, where information travels faster than it can be verified, the pursuit of truth has become both more urgent and more vulnerable. In Ghana, increasing concerns over digital falsehoods have sparked calls for new “cybersecurity” laws to address online deception. However, such reactions often overlook a foundational principle of sound lawmaking: good law should remain technology-neutral. As society grapples with the growing influence of online content, it is essential to distinguish between two commonly conflated terms—misinformation and disinformation—since legal responses must be guided by intent and harm, not the medium of communication. While the digital space may amplify the speed or reach of harm, it does not alter the legal character of the act.

In this context, misinformation refers to false or misleading information shared without the intent to deceive. It typically arises from error, haste, or misunderstanding—such as a journalist misquoting a statistic or a citizen sharing outdated news. Disinformation, by contrast, involves the deliberate creation and dissemination of falsehoods intended to mislead, manipulate, or cause harm. The distinction lies not merely in the content but in the intent—and it is this intent that carries significant legal and ethical implications.

A thoughtful, technology-neutral legal framework—encompassing civil remedies and targeted criminal provisions—already exists and can be effectively applied to harmful disinformation without compromising foundational liberties such as freedom of speech and press. Crucially, the same legal standards that protect speech and conduct offline must also apply online. The mere fact that a falsehood is disseminated through digital means does not justify categorising it as a new offence. Treating online misinformation as a criminal offence—when it would not be treated as such offline—risks distorting established legal protections and undermining the principle that law should target harmful intent, not the mode of communication.

Understanding the legal boundary between honest mistake and malicious intent is not a matter of semantics; it is the essential starting point for a balanced approach to protecting the digital information ecosystem while upholding democratic values.

As Ghana navigates the digital age, the distinction between misinformation and disinformation carries real legal consequences. This article argues that while the law should refrain from criminalising innocent error, it must be equipped to address the deliberate and harmful nature of disinformation. It further contends that Ghana does not require reactive new laws that merely prefix existing offences with “cyber.” Doing so risks reintroducing criminal sanctions against free expression through the backdoor of “cybersecurity”—a move that would undermine the country’s hard-won progress in decriminalising speech.

MISINFORMATION: THE CASE AGAINST CRIMINALISATION

Misinformation refers to false or inaccurate information shared without malicious intent. It typically results from human error, haste, or misunderstanding. For example, a local journalist misquoting a figure in a complex report or a citizen forwarding an outdated weather alert are acts of honest mistake, not malice.

Criminalising such speech would be a disproportionate and counterproductive response—more damaging to democratic discourse than the error itself. There are three core reasons:

• Chilling Effect on Free Speech: The threat of prosecution for an unintentional mistake would stifle investigative journalism and suppress public discourse. Who would dare scrutinise those in power or report on complex matters if a single factual error could invite criminal charges?
• State as Arbiter of Truth: Empowering the government to define and enforce a legal version of “truth” is characteristic of authoritarian regimes. It creates a pathway for silencing dissenting voices by branding inconvenient reports as "false."
• Existence of Proportionate Remedies: Appropriate responses to misinformation lie in civil law and professional ethics. Defamation claims, public corrections, reputational consequences, and enhanced media literacy are more democratic tools for addressing errors. Criminal law, by contrast, is a blunt instrument best reserved for conduct involving malicious intent.

To criminalise misinformation is to punish error rather than correct it—undermining the openness, accountability, and vibrancy essential to a free society.

While Section 208(1) of the Criminal Offences Act (Act 29) appears to limit liability to those who knowingly or recklessly spread falsehoods, Section 208(2) undermines this safeguard by reversing the burden of proof. It denies an accused person the defence of ignorance unless they can prove that they took reasonable steps to verify the information. This provision effectively criminalises unintentional error—bringing misinformation under the scope of criminal law. In legal terms, this risks criminalising negligence in speech, where false information is shared not with intent to deceive, but through carelessness, haste, or a failure to verify.

Such negligence may be reckless—like forwarding unverified claims—or inadvertent, such as misquoting a statistic. While these acts may have civil consequences, such as in defamation or reputational harm, they should not attract criminal penalties unless malicious intent is clearly established. Criminal law requires mens rea, or a guilty mind. Allowing the State to apply criminal sanctions to mere carelessness conflates honest mistake with deliberate manipulation and punishes error rather than protecting society.

The contradiction is clear: the first subsection requires intent, while the second punishes negligence. This doctrinal inconsistency blurs the legal boundary between disinformation and innocent mistake, exposing journalists and citizens to criminal liability for speech made without any intent to deceive.

Such a structure is dangerous. It can have a chilling effect on journalists, who may avoid publishing sensitive investigations; on citizens, who may refrain from public discourse for fear of missteps; and on civil society, which thrives on open debate and accountability.

Moreover, this provision risks breaching Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which stipulates that any restriction on expression must be lawful, necessary, and proportionate. Criminalising mere error fails this test and undermines Ghana’s commitment to free expression under international law.

Although Ghana repealed its criminal libel laws in 2001 to safeguard press freedom, Section 208 now risks reintroducing similar restrictions. By criminalising the publication of false information regardless of intent, it can be used to punish journalists, activists, or citizens for honest mistakes. Vague language such as causing “fear and alarm” or disturbing “public peace” echoes the broad, subjective terms once used to silence critical voices under criminal libel laws.

Consider a citizen who shares an outdated government directive, believing it to still be in effect. Though the information is inaccurate and may cast the government in a negative light, the error stems from confusion—not intent to mislead. Under Section 208, it would be alarmingly easy for the State to treat this as an offence. In a democracy, the appropriate response is not prosecution but correction—alerting the individual and requesting that the information be revised or removed.

Intent—not factual precision—must be the legal and moral threshold. Criminalising speech that lacks intent to deceive risks turning a democratic society into one governed by fear and censorship.

DISINFORMATION: THE CASE FOR TARGETED LAWS

Disinformation presents a fundamentally different challenge. It involves the deliberate creation and dissemination of false information with intent to deceive, cause harm, or achieve personal, political, or financial gain. This is not a journalist’s error but a calculated act by a malicious actor—such as fabricating a story to manipulate public opinion, exploit vulnerable populations, or incite unrest.

In such cases, the argument for criminal sanctions is far more compelling. The concern is not simply that the content is false, but that it is a weaponised lie directly linked to demonstrable and imminent harm.

However, this does not justify vague, sweeping offences such as a generic “fake news” crime. Instead, existing legal frameworks should be applied and adapted to hold perpetrators accountable when disinformation drives specific, recognised harms, including:

• Electoral Fraud: Knowingly spreading false information about voting procedures with the intent to disenfranchise voters.
• Incitement to Imminent Violence: Fabricating conspiracies that lead directly to riots, attacks, or civil unrest.
• Mass Fraud: Using coordinated disinformation campaigns to deceive for financial gain.
• Threats to Public Safety: Falsely reporting emergencies with the intent to cause panic or disrupt services.

In each case, it is not the falsehood alone that justifies legal consequences, but the combination of malicious intent and foreseeable harm.

GHANA’S EXISTING LEGAL TOOLKIT

One of the most compelling arguments against creating new, broad “fake news” laws is that Ghana already possesses a capable legal framework to address harmful disinformation in the digital space. This existing architecture—spanning civil and criminal law—can distinguish between unintentional misinformation and malicious disinformation when properly applied. However, certain provisions—notably Section 208(2) of the Criminal Offences Act—undermine this balance by exposing even negligent speech to criminal sanction. Reforming such provisions would enable the legal system to meet digital challenges without compromising constitutional freedoms.

The Civil Takedown – A Swift Remedy via the Electronic Transactions Act

Section 94 of the Electronic Transactions Act, 2008 (Act 772), provides a key civil mechanism. Its “Notice and Takedown” procedure facilitates the swift removal of “illegal or unlawful” content published electronically.

This procedure is particularly suited to cases where disinformation crosses into legally actionable territory, including:

• Defamatory content that harms personal or institutional reputations.
• Fraudulent schemes that deceive individuals for financial gain.
• Incendiary falsehoods likely to provoke violence or unrest.

Importantly, Section 94 includes safeguards against misuse. Subsection 94(3) imposes penalties on those who submit false claims—protecting against the “meta-lie”: using legal tools to silence truthful reporting. This ensures the takedown mechanism remains a precise remedy, rather than a blunt instrument.

The Criminal Arsenal – Prosecuting Harm under the Criminal Offences Act

When disinformation causes serious or lasting harm, Ghana’s criminal laws offer an intent-focused prosecutorial framework. The Criminal Offences Act, 1960 (Act 29), generally targets conduct involving deceit, fraudulent intent, or threats to public order—rather than abstract falsehoods. With the exception of Section 208(2), these provisions appropriately emphasise intent and demonstrable harm.

Key sections include:

• False Pretences (Sections 131–133): Targeting false representations made with intent to defraud—typically to induce someone to part with money or rights. When disinformation is used to extract economic benefit, these provisions offer precise legal recourse.
• Forgery (Sections 158–167): Addressing the deliberate creation or use of falsified documents. In digital contexts, this includes fake certificates, forged government directives, and altered digital records used to mislead or incite unrest.
• Charlatanic Advertisement (Section 275): Criminalising knowingly false commercial claims. This is particularly relevant in cases involving fake medical cures or deceptive “miracle products” exploiting public fears.
• Spreading False Rumours (Section 208): While sometimes invoked to curb false rumours disturbing public peace, this provision—especially Subsection (2)—poses serious concerns. As previously discussed, its reversal of the burden of proof and lack of intent requirement demand reform.

In addition, the Electronic Transactions Act criminalises technological enablers of malicious disinformation, including:

• Unauthorised System Access (Section 124)
• Interference with Electronic Records (Section 125)

Collectively, these laws form a robust legal toolkit. Properly interpreted and enforced, they allow authorities to respond to digital disinformation without sweeping new statutes. Crucially, any application of criminal sanctions must uphold the distinction between deliberate falsehoods and honest mistakes.

A Coherent System, Not a Legal Vacuum

These provisions constitute a coherent legal framework. While Act 772 offers civil remedies for rapid response, Act 29 enables criminal prosecution where harm is significant.

Importantly, this framework already filters out unintentional “false news” (misinformation), which lacks mens rea (criminal intent). It rightly focuses state power on disinformation weaponised to defame, defraud, or destabilise.

The issue is not the absence of law, but:

• Gaps in enforcement capacity,
• Limited digital investigation resources, and
• The need for strategic application of existing legal tools.

This approach reflects a foundational principle: the law should remain technology-neutral. A lie crafted to deceive is fraudulent—regardless of whether it is whispered in private, printed in a pamphlet, or posted on social media. The medium does not redefine the harm.

We must avoid legislative duplication by resisting the urge to create “cyber” versions of existing offences. Not only is this redundant, but it also risks generating a bloated and contradictory legal system. Ghana’s focus should be on strengthening the implementation of current laws in digital contexts—not rewriting them under a digital prefix.

That said, some emerging technologies may introduce novel harms unanticipated in the offline world—such as large-scale algorithmic manipulation or bot-driven disinformation. In such cases, new legislation may be necessary, but only where the harm is clearly distinctive and unaddressed by current tools.

Technology-neutrality does not require legal stagnation. Rather, it promotes deliberate, proportionate evolution of law—responding to new types of harm, not just new delivery methods.

THE ULTIMATE DECEPTION: LABELLING TRUTH AS “FAKE NEWS”

Among the most insidious forms of disinformation is not the fabrication of lies but the deliberate mislabelling of truth. Specifically, the act of taking a factual, substantiated report and knowingly branding it as “fake news.” This tactic is itself a dangerous form of disinformation, meeting the very definition of the term: a deliberate falsehood, spread with intent to deceive and harm.

The Mechanism: A public figure—often a politician—is confronted with credible evidence of wrongdoing. Instead of addressing the substance of the report, they dismiss it as “fake news” without evidence. This is not a misunderstanding but a strategic “meta-lie,” intended to:

• Discredit factual reporting,
• Mislead the public, and
• Undermine trust in media and institutions.

The Consequence: This tactic destroys shared reality, making it difficult for societies to agree on basic facts. It fosters impunity, protects power from scrutiny, and silences legitimate criticism. Most dangerously, it creates a false equivalence between truth and deception.

Weaponising the term “fake news” is perhaps the most corrosive disinformation trend because it attacks not specific content, but the very concept of objective truth. When truth is repeatedly framed as falsehood for political convenience, public discourse becomes manipulated and vulnerable to authoritarian distortion.

POLICY RECOMMENDATIONS: STRENGTHENING INTENT-BASED LEGAL RESPONSES

To safeguard Ghana’s digital information ecosystem without compromising democratic freedoms, the following targeted policy actions are recommended:

1. Reform Section 208 of the Criminal Offences Act (Act 29)
   Amend or repeal Section 208(2), which reverses the burden of proof and risks criminalising innocent error. Any legal provision addressing false information must clearly require proof of intent to deceive, in order to comply with constitutional and international free speech protections.
2. Affirm the Principle of Technology-Neutrality
   Laws should address harmful conduct consistently, regardless of whether it occurs online or offline. The digital nature of a statement should not alter its legal status. This ensures coherence in legal doctrine and prevents unnecessary duplication.
3. Avoid Vague “False News” Offences and Misuse of “Fake News”
   Legislative efforts to criminalise “false news” in sweeping or undefined terms should be avoided, as they risk becoming tools of censorship. The law must distinguish clearly between intentional disinformation and honest error or dissent. Legal responses should target deliberate falsehoods causing identifiable harm—not satire, opinion, or unintentional mistakes.

Equally important, legal and policy frameworks must protect against the strategic misuse of the “fake news” label to discredit accurate but inconvenient reporting. This tactic constitutes disinformation and must be recognised and treated as such.

4. Strengthen Civil Remedies under the Electronic Transactions Act (Act 772)
   Promote the effective use of the “Notice and Takedown” mechanism in Section 94 of Act 772 as a proportionate civil remedy for unlawful digital content. The provision’s built-in safeguards—such as penalties for false claims—should be actively enforced.
5. Promote Media Literacy and Public Education
   Develop national initiatives aimed at enhancing public understanding of how to identify and verify information sources. Media literacy is a long-term, democratic strategy for building societal resilience against misinformation.
6. Protect and Strengthen Journalistic Freedoms
   Reaffirm Ghana’s commitment to press freedom by ensuring that legal frameworks do not criminalise honest reporting. Journalists must not face criminal liability for unintended factual errors made without malicious intent.

 

CONCLUSION: TARGET INTENT, NOT ERROR

Should both misinformation and disinformation be criminalised? The answer—grounded in legal principle, sound doctrine, and Ghana’s existing frameworks—is a firm and nuanced no.

The criminalisation of misinformation, which involves honest error without intent to deceive, must be unequivocally opposed. Punishing such mistakes would suppress free speech, deter civic engagement, and erode the open discourse essential to democratic society. The appropriate responses lie in correction, civil accountability, and public education—not criminal prosecution.

As discussed, provisions such as Section 208(2) of the Criminal Offences Act (Act 29) risk penalising innocent communication and must be revised to ensure that carelessness or negligence—absent malicious intent—is not treated as a criminal offence.

Conversely, the legal system must remain vigilant against disinformation: the calculated, weaponised spread of falsehoods designed to mislead, defraud, or incite harm. In such cases, proportionate legal sanctions are justified. However, these must be specific, intent-based, and narrowly defined—avoiding vague or sweeping offences like a generic “fake news” crime.

Equally troubling is the rise of a more subtle form of disinformation: the deliberate labelling of truthful, critical, or inconvenient information as “fake news.” This tactic seeks not only to discredit individual reports but to undermine the very idea of objective truth. A legal framework suitable for the digital age must be capable of recognising and resisting this threat to democratic discourse.

Ghana is not operating in a legal vacuum. Existing civil and criminal laws—when applied with precision and fairness—are adequate to address harmful disinformation. Any new offence must be introduced only where a distinct digital harm exists that cannot be addressed by current tools. This is the threshold for legislation—not the novelty of the digital medium.

This embodies the principle of technology-neutrality: a lie does not become a new crime merely because it travels through new channels.

The path forward is clear. Legal and policy responses must focus on malicious intent, not innocent error. Rather than duplicating existing offences under a cyber-prefix, we must strengthen and refine the laws we already have—sharpening our tools without rewriting the rulebook.

The battle against the pollution of the digital information ecosystem is urgent—but it must be waged with discipline, proportionality, and an unwavering commitment to constitutional freedoms. The law must remain a guardian of truth—not by punishing mistakes, but by holding deception to account.