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By \xa0Kofi Anokye Owusu-Darko(Dr)

In today’s digital era, where information spreads quicker than it can be checked, seeking the truth has grown more critical yet more at risk. In Ghana, rising worries about online misinformation have led to demands for new “cybersecurity” regulations to tackle digital deceit. Yet, these responses frequently ignore a key aspect of effective legislation: strong laws must stay impartial toward technology. As communities deal with the expanding impact of online material, it is crucial to differentiate between two often confused concepts—misinformation and disinformation—since legal actions should be based on intention and damage, rather than the method of communication. Although the online environment can increase the speed or extent of harm, it does not change the legal nature of the action.

In this context, misinformationinvolves the dissemination of inaccurate or deceptive content without the intention to mislead. it often results from mistakes, rush, or confusion—like a reporter incorrectly citing a figure or an individual spreading old news.Disinformation, in contrast, refers to the intentional production and spread of false information aimed at deceiving, influencing, or causing damage. The difference is not just about the information itself but also about the purpose—and it is this purpose that has substantial legal and moral consequences.

A carefully considered, technology-agnostic legal structure—covering civil solutions and specific criminal clauses—already exists and can be successfully used against damaging misinformation without affecting essential freedoms like free speech and press. Importantly, the same legal principles that safeguard expression and behavior in the physical world should also be enforced in the digital realm. The mere fact that a false statement is shared via digital channels does not warrant classifying it as a distinct crime. Labeling online false information as a criminal act—when it would not be treated similarly in offline contexts—could disrupt existing legal safeguards and weaken the idea that laws should focus on harmful intent rather than the method of communication.

Grasping the legal line between genuine error and deliberate wrongdoing is not just a matter of language; it is the fundamental basis for a fair strategy to safeguard the digital information environment while maintaining democratic principles.

As Ghana moves through the digital era, the difference between false information and misleading information has significant legal implications. This article suggests that although the law should not punish unintentional mistakes, it needs to be capable of handling the intentional and damaging aspects of disinformation. It also claims that Ghana doesn’t need new laws that simply add “cyber” to current offenses. Such actions could lead to hidden criminal penalties for free speech under the guise of “cybersecurity”—a step that would weaken the nation’s achievements in reducing speech-related criminal charges.

MISINFORMATION: THE ARGUMENT AGAINST MAKING IT A CRIME

False or incorrect information spread without any harmful intention is known as misinformation. It often occurs due to mistakes, rushing, or confusion. For instance, a local reporter incorrectly quoting a number in a detailed report or a person sharing an old weather warning are examples of innocent errors, not deliberate harm.

Making such speech illegal would be an excessive and ineffective reaction—more harmful to open debate than the mistake it aims to address. There are three main explanations:

• Negative Impact on Free ExpressionThe risk of being prosecuted for an accidental error could hinder investigative reporting and limit open discussion. Who would have the courage to examine those in authority or cover intricate issues if a minor factual mistake might lead to legal consequences?
• Declare as Judge of Reality: 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 RemediesSuitable reactions to false information are found within civil law and professional standards. Suing for defamation, issuing public corrections, facing damage to one’s reputation, and improving media literacy serve as more democratic methods of dealing with mistakes. In contrast, criminal law is a crude tool that should be used only for actions involving deliberate harmful intent.

Making false information a crime means penalizing mistakes instead of addressing them—harming the openness, responsibility, and energy that are vital for a free society.

Although Section 208(1) of the Criminal Offences Act (Act 29) seems to restrict liability to individuals who knowingly or recklessly disseminate false information, Section 208(2) weakens this protection by shifting the burden of proof. It prevents the accused from using ignorance as a defence unless they can demonstrate that they made reasonable efforts to check the information. This clause essentially makes unintentional mistakes punishable under criminal law. In legal terms, it poses a risk of criminalising careless speech, where false information is shared not with the intention to mislead, but due to negligence, haste, or an omission to confirm the facts.

This carelessness might be careless—like sharing unconfirmed information—or unintentional, for example, incorrectly citing a number. Although these actions could lead to legal repercussions, such as in cases of defamation or damage to one’s reputation, they shouldn’t result in criminal punishment unless there is clear evidence of malicious intent. Criminal law demandsmens rea, or a guilty mind. Letting the State impose criminal penalties for simple negligence equates genuine error with intentional deception and penalizes mistakes instead of safeguarding the public.

The contradiction is evident: the first section demands intent, whereas the second imposes penalties for carelessness. This legal inconsistency creates ambiguity between false information and honest errors, putting journalists and individuals at risk of criminal charges for statements made without any intention to mislead.

This kind of framework is risky. It might discourage reporters from releasing critical reports; make people hesitate to engage in public conversations due to concerns about mistakes; and hinder non-governmental organizations, which depend on free discussion and transparency.

Furthermore, this clause could violate Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which states that any limitation on freedom of expression must be lawful, essential, and balanced. Punishing simple mistakes does not meet this standard and weakens Ghana’s dedication to free speech as outlined in international law.

Even though Ghana removed its criminal defamation laws in 2001 to protect media freedom, Section 208 could lead to similar limitations being put in place again. By making it a crime to publish false information without considering intent, it might be used to penalize journalists, activists, or ordinary people for unintentional errors. Ambiguous phrases like “causing fear and alarm” or “disrupting public peace” resemble the wide-ranging, subjective language that was previously used to suppress dissent under criminal defamation laws.

Imagine a citizen who spreads an old government rule, thinking it is still valid. Even though the information is incorrect and could make the government look bad, the mistake comes from misunderstanding—not from a desire to deceive. According to Section 208, it would be disturbingly simple for the State to consider this as a crime. In a democratic society, the right reaction is not to take legal action but to fix the error—informing the person and asking them to update or delete the information.

The legal and moral standard should focus on intent rather than factual accuracy. Punishing speech that lacks the intention to mislead could lead a democratic society towards one controlled by fear and suppression.

DISINFO: THE ARGUMENT FOR SPECIFIC LAWS

Misinformation poses a completely distinct problem. It refers to the intentional production and spreading of false information aimed at misleading, causing damage, or gaining personal, political, or financial benefits. This is not a mistake made by a journalist, but rather a deliberate action by an harmful entity—like inventing a narrative to influence public perception, take advantage of weak groups, or provoke chaos.

In these situations, the case for criminal penalties becomes much stronger. The issue is not merely that the information is incorrect, but that it constitutes a harmful lie with clear and immediate consequences.

Nevertheless, this does not validate ambiguous, broad-based offenses like a general “fake news” charge. Rather, current legal systems should be utilized and modified to ensure those responsible are held accountable when misinformation leads to particular, acknowledged damages, including:

• Electoral FraudIntentionally distributing misleading details regarding voting processes with the goal of preventing voters from casting their ballots.
• Incitement to Imminent ViolenceCreating false conspiracies that directly result in riots, assaults, or societal turmoil.
• Mass FraudEmploying synchronized false information strategies to mislead for monetary benefit.
• Threats to Public SafetyDeliberately reporting false emergencies with the purpose of creating fear or interfering with services.

In every instance, it is not merely the falsehood that leads to legal repercussions, but the blend of malicious intent and anticipated damage.

GHANA’S EXISTING LEGAL TOOLKIT

One of the strongest reasons to avoid establishing wide-ranging “fake news” laws is that Ghana already has an effective legal system in place to handle harmful misinformation online. This current structure—covering both civil and criminal law—can differentiate between accidental false information and deliberate disinformation when used appropriately. Nevertheless, some clauses—particularly Section 208(2) of the Criminal Offences Act—jeopardize this balance by subjecting even careless speech to criminal penalties. Updating these clauses would allow the legal system to tackle digital issues without endangering constitutional rights.

The Civil Strikeback – A Quick Solution Through the Electronic Transactions Act

Section 94 of the Electronic Transactions Act, 2008 (Act 772), outlines a crucial legal process. The “Notice and Takedown” framework enables the rapid elimination of “unlawful” material shared online.

This process is especially appropriate for situations where false information enters the realm of legal consequences, such as:

• False information that damages the reputation of individuals or organizations.
• Scams designed to trick people into giving money.
• False statements that could incite violence or disorder.

Crucially, Section 94 contains measures to prevent abuse. Subsection 94(3) applies consequences to individuals who present misleading claims—safeguarding against the “meta-lie”: employing legal methods to suppress genuine reporting. This guarantees that the removal process stays a targeted solution, instead of a general tool.

The Criminal Armory – Prosecuting Damage under the Criminal Offences Act

If false information leads to significant or long-term damage, Ghana’s criminal laws provide a prosecution approach that focuses on intent. The Criminal Offences Act, 1960 (Act 29), typically addresses actions involving deception, fraudulent intentions, or threats to public order—rather than mere false statements. Except for Section 208(2), these sections correctly highlight the importance of intent and proven harm.

Key sections include:

• False Pretences (Sections 131–133): Focusing on misleading statements created with the intention of deceiving—usually to convince someone to give up money or assets. When false information is utilized to gain financial advantage, these laws provide specific legal options.
• Forgery (Sections 158–167): Tackling the intentional production or utilization of fabricated documents. In digital settings, this involves fake certifications, counterfeit official instructions, and modified digital records aimed at deceiving or provoking disorder.
• Charlatanic Advertisement (Section 275): Making it illegal to knowingly make false business statements. This is especially important in situations where fake medical treatments or misleading “miracle” products take advantage of public anxieties.
• Spreading Untrue Stories (Section 208): Although occasionally used to prevent false rumors that disrupt public order, this clause—particularly paragraph (2)—raises significant issues. As mentioned earlier, the shift in the burden of proof and the absence of an intent requirement require changes.

Furthermore, the Electronic Transactions Act makes illegal the technological tools that facilitate harmful misinformation, such as:

• Unauthorized System Entry (Section 124)
• Disruption of Digital Records (Section 125)

Together, these laws create a strong legal framework. When understood and implemented correctly, they enable officials to address online misinformation without requiring broad new laws. Importantly, the use of criminal penalties must maintain the difference between intentional lies and genuine errors.

A Logical Framework, Not a Legal Gap

These clauses form a consistent legal structure. Although Act 772 provides civil solutions for quick action, Act 29 allows for criminal charges when damage is substantial.

Notably, this framework automatically excludes unintentional “false news” (misinformation), which is absentmens rea(criminal intent). It appropriately directs state authority towards misinformation that is used to slander, deceive, or create unrest.

The problem is not the lack of legislation, but:

• Gaps in enforcement capacity,
• Restricted digital forensic capabilities, and
• The importance of utilizing current legal instruments in a planned manner.

This method embodies a core concept: the law must stay impartial toward technology. A falsehood created to mislead is considered deceitful—no matter if it is spoken in secret, written in a brochure, or shared on social media. The channel does not alter the damage caused.

We need to prevent overlapping legislation by avoiding the temptation to establish “cyber” versions of existing crimes. This approach is not only unnecessary but also could lead to an overly complex and conflicting legal framework. Ghana’s attention should be on enhancing the enforcement of existing laws within digital environments—rather than rephrasing them with a digital label.

Nevertheless, certain new technologies could bring about unique dangers not previously seen in the physical world—like widespread algorithmic influence or misinformation spread by automated accounts. In these situations, new laws might be required, but only if the harm is distinctly different and not already covered by existing measures.

Technology neutrality does not imply legal inaction. Instead, it encourages thoughtful, balanced development of laws—addressing emerging forms of harm, not merely new ways of delivering services.

THE GREATEST DECEPTION: CATEGORIZING TRUTH AS “FALSE INFORMATION”

One of the most harmful types of misinformation is not creating false information, but intentionally mislabeling accurate information. More specifically, the act of taking a verified, factual report and falsely calling it “fake news.” This approach constitutes a serious form of misinformation, fitting the exact definition: a purposeful lie, distributed with the intention to deceive and cause damage.

The MechanismA well-known individual—typically a politician—is faced with valid proof of misconduct. Rather than engaging with the content of the claim, they label it as “fake news” without providing any support. This is not an error but a calculated “meta-lie,” designed to:

• Discredit factual reporting,
• Mislead the public, and
• Erode confidence in the press and organizations.

The ConsequenceThis approach undermines common reality, hindering communities from reaching consensus on fundamental truths. It encourages a lack of accountability, shields authority from examination, and suppresses valid dissent. Most perilously, it establishes a misleading balance between truth and falsehood.

Using the term “fake news” as a weapon is likely the most damaging form of misinformation, as it undermines the idea of objective truth rather than targeting specific information. When truth is consistently portrayed as false for political gain, public discussion becomes distorted and susceptible to authoritarian influence.

POLICY RECOMMENDATIONS: ENHANCING LEGAL RESPONSES BASED ON INTENT

To protect Ghana’s digital information environment while maintaining democratic liberties, the following specific policy measures are suggested:

1. Revise Section 208 of the Criminal Offences Act (Act 29)

   Modify or remove Section 208(2), which shifts the burden of proof and may lead to punishing unintentional mistakes. Any legal rule dealing with false information should explicitly demand evidence of a deliberate attempt to mislead, in order to align with constitutional and global free speech standards.

2. Uphold the Concept of Technology-Neutral Approach

   Laws must handle damaging behavior in a uniform manner, whether it takes place in the digital realm or in person. The online aspect of a statement should not change its legal classification. This promotes consistency within legal principles and avoids redundant processes.

3. Prevent Ambiguous “False News” Charges and Misapplication of “Fake News”

   Efforts by lawmakers to criminalize “false news” using broad or vague language should be avoided, as this could lead to censorship. The law needs to clearly separate intentional misinformation from genuine mistakes or differing opinions. Legal actions should focus on deliberate lies that result in specific harm—not on satire, personal views, or accidental errors.

Equally significant, legal and policy structures need to safeguard against the deliberate abuse of the “fake news” term to undermine truthful yet uncomfortable journalism. This approach represents misinformation and should be identified and addressed accordingly.

1. Enhance Civil Remedies within the Electronic Transactions Act (Act 772)

   Encourage the proper application of the “Notice and Takedown” process outlined in Section 94 of Act 772 as a suitable civil solution for illegal online material. The inherent protections within the clause—like consequences for misleading reports—must be strictly implemented.

2. Encourage Media Awareness and Community Learning

   Create national programs focused on improving the public’s ability to recognize and confirm information sources. Media literacy serves as a long-term, democratic approach to strengthening community resistance to false information.

3. Safeguard and Enhance Press Liberties

   Reaffirm Ghana’s dedication to freedom of the press by making sure that laws do not punish truthful journalism. Reporters should not be held legally responsible for accidental factual mistakes that occur without any harmful intention.

CONCLUSION: FOCUS ON TARGET INTENT, NOT MISTAKES

Should the spread of false information and deliberate misleading content be made illegal? The response—based on legal theory, proper guidelines, and Ghana’s current systems—is a clear and thoughtful no.

The criminalization of false information, including unintentional mistakes, should be firmly rejected. Penalizing these errors would restrict freedom of expression, discourage public participation, and undermine the open debate crucial for a democratic society. The right approach is to address them through correction, civil responsibility, and educational efforts—not through legal punishment.

As mentioned, clauses like Section 208(2) of the Criminal Offences Act (Act 29) have the potential to punish innocent exchanges and should be updated so that carelessness or oversight—without any harmful intention—is not considered a criminal act.

On the other hand, the legal system needs to stay alert to misinformation: the deliberate and harmful dissemination of false information aimed at deceiving, cheating, or causing damage. In these situations, appropriate legal consequences are acceptable. Nevertheless, they should be precise, focused on intent, and clearly outlined—steering clear of broad or general offenses such as a catch-all “false news” charge.

Equally concerning is the emergence of a more nuanced type of misinformation: the intentional classification of accurate, critical, or uncomfortable information as “fake news.” This approach aims not only to discredit specific reports but also to challenge the concept of objective truth itself. A legal system appropriate for the digital era needs to be able to identify and counter this danger to democratic conversation.

Ghana is not functioning without legal framework. Current civil and criminal laws—when implemented accurately and justly—are sufficient to handle harmful misinformation. Any new offense should only be established when a specific digital harm occurs that cannot be managed by existing methods. This is the standard for creating laws—not the innovation of the digital platform.

This reflects the concept of technological neutrality: a falsehood does not constitute a new offense simply because it is transmitted via new methods.

The way ahead is evident. Legal and policy actions should concentrate on harmful intentions, not accidental mistakes. Instead of creating new offenses with a cyber-related label, we need to enhance and improve the laws currently in place—refining our instruments without altering the existing framework.

The fight against the pollution within the digital information environment is critical—but it needs to be conducted with discipline, balance, and a strong dedication to constitutional rights. The law should act as a protector of truth—not by penalizing errors, but by addressing falsehoods.

The writer is a champion for Digital Rights, showing significant interest in the overlap between law, public policy, digital evolution, and governance—especially how legal systems adjust to new technologies. He has an EMBA in IT Management, a Bachelor of Laws degree, and a Master of Laws focused on IT and Telecommunications Law. Using this varied expertise, he explores legal and policy matters from a digital governance angle. Blog: kofianokye.blogspot.com | kofidarko2.blogspot.com; Email: kofidarko18@gmail.com ; Website: Kaodconsult.com

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