Togo
Togo currently has no specific legislation to counter disinformation. However, there are three laws that include restrictions on disinformation: the Penal Code, Loi N° 2018-026 sur la cybersecurity et la lutte contre la cybercriminalité, and Loi n°2020-001 relative au code de la presse et de la communication.
These laws raise substantial concerns from a human rights perspective. They are all ill-defined in their scope, meaning that authorities could interpret them as giving them power to restrict a wide range of speech, and they pursue aims which would not be considered legitimate according to international human rights standards—for example, restricting speech which might disturb the discipline or morale or the armed forces (Penal Code). These laws also carry penalties which are potentially disproportionate in their severity, and may result in a chilling effect on freedom of expression.
We assess these laws individually in detail below, as well as an example of the enforcement of the provisions in the Penal Code.
No. Article 497 of the Penal Code broadly criminalises the dissemination of news that is false or falsely attributed to third parties when done in bad faith and when it disturbs public peace or is likely to do so. It also prohibits false news that disturbs or is likely to disturb the discipline or morale of the armed forces, or obstruct a war effort.
It is not clear how to determine whether information is “false” or the scope of something that is likely to disturb the discipline or morale of the armed forces, or obstruct a war effort. Article 497 thus fails to provide clear guidance for individuals to conform their behaviour and provides an overly wide degree of discretion to those charged with the enforcement of this law.
No. Speech should only be restricted where some clear, objective public harm might be caused. Whilst restrictions made under Article 497 that are aimed at public order and national security could be legitimate, it is unlikely that restrictions relating to the discipline or morale of the armed forces would be. The potential scope of these latter objectives is likely to be much broader than what is normally considered to fall under public order.
Yes. Article 497 requires that the offence be committed in bad faith. The court could therefore make a determination on the knowledge or intention behind the action. It also is likely that the accused would have an opportunity to establish the truth of the information or demonstrate that they had good reason to believe it to be true.
Yes. This is a criminal offence and will be decided by a court of law.
Potentially. Violation of Article 497 may be punished by imprisonment for six months to two years, and a fine between CFA 500,000 to CFA 2,000,000, or both. If the court determines that the individual is the original author of the false news, then they could be punished by imprisonment for one to three years, and a fine of CFA 1,000,000 to CFA 3,000,000, or both. This same penalty applies for violations of Article 497 that are likely to disturb the discipline or morale of the armed forces, or obstruct a war effort.
If the maximum fines and prison sentences are imposed without taking into account the circumstances of the offence, then sanctions could be disproportionate. Any sanction would be disproportionate if made in pursuance of an illegitimate aim. However, there is an absence of information as to how these penalties are imposed in practice, which makes it difficult to determine whether they are proportionate.
N/A.
No. Article 25 criminalises the electronic dissemination of false information which would make it appear that the destruction of property or harm to another person has been (or will be) committed, or regarding an emergency situation. It is not clear how to determine whether information is “false”. It is also unclear what is included in the scope of information which would make it appear that the destruction of property or harm to another person has been (or will be) committed. Article 25 thus fails to provide clear guidance for individuals and provides an overly wide degree of discretion to those charged with the enforcement of this law.
No. Speech should only be restricted where some clear, objective public harm might be caused. The aims pursued by Article 25 would appear to be targeted at public order and therefore legitimate. However, it is unlikely that anything which would make it appear that the destruction of property or harm to another person has (or will) take place would fall within this aim. The potential scope of these terms is therefore much broader than what is normally considered to fall under public order and would thus be illegitimate.
No.
Yes. This is a criminal offence and will be decided by a court of law.
Potentially. Violation of Article 25 may result in a fine between CFA 1,000,000 and CFA 3,000,000, or imprisonment between one and three years, or both. These penalties also apply to accomplices. If content or speech is restricted in pursuance of an illegitimate aim, then any response would be disproportionate. If legitimate aims are pursued, the proportionality of the sanctions would depend on the specific circumstances of the offence. If the maximum fines and longest prison sentences, or both, are imposed without taking into account the circumstances of the offence, then sanctions may be disproportionate.
In the absence of information as to how these penalties are imposed in practice, it is difficult to determine whether they are proportionate.
N/A.
No. Article 153 prohibits the dissemination or publication of information “contrary to reality” for the purpose of manipulating consciences or to distort information or facts. It is not clear how one would determine whether information is “contrary to reality”, or whether it was shared with intent to manipulate consciences or distort facts. Article 153 thus fails to provide clear guidance for individuals and provides an overly wide degree of discretion to those charged with the enforcement of this law.
No. Speech should only be restricted where some clear, objective public harm might be caused. Whilst Article 153 appears to be directed at the aim of ensuring that individuals have access to accurate information, the potential scope of its objectives is much broader than what would be permitted under international human rights law and makes no reference to any clear, objective public harm being caused. Article 153 could therefore potentially permit restrictions made in pursuance of illegitimate aims.
Potentially. Article 153 specifies that false information is prohibited when disseminated “for the purpose of manipulating consciences or to distort information or facts”. This would imply that intention to deceive is a prerequisite to the offence.
Yes. This will be decided by a court.
Potentially. Article 153 imposes a fine of 500,000 CFA to 1,000,000 CFA (USD 850 to 1,700). The same fine and a temporary suspension of a broadcasting or publishing licences of between 15 days and three months can be levelled against a national media body that “reproduces information at variance with reality, published or broadcasted by foreign media sources”. These penalties can be doubled in the case of a repeat offence. If the maximum fine and suspension were imposed without taking into account the circumstances of the offence, the sanctions are likely to be disproportionate. This is particularly the case where no harm actually occurs. However, there is an absence of information as to how these penalties are imposed in practice, which makes it difficult to determine whether they are proportionate.
No. Article 139 states that legal entities hosting or making accessible information or messages online are only criminally or civilly responsible for their content if they have failed to act “promptly to prevent access to such content” once notified of its illicit nature by a judicial authority. Furthermore, Article 3 explicitly exempts social networks from the provisions of the law.
Ferdinand Ayité and Joel Eghan, the publishing directors for news outlets L’Alternative and Fraternité, were arrested and detained in December 2021 on grounds of defamation, outraging authority and dissemination of false news. Isidore Kouwonou, a third journalist, was placed under judicial control following complaints from two government ministers about critical remarks made by the journalists during the YouTube programme “L’Autre Journal”. Ayité and Egah were released after three weeks and placed under judicial supervision. In March 2023, Ayité and Kouwonou were summoned to court for sentencing in relation to this case, and both fled the country and went into hiding. Both were sentenced in absentia to three years in prison and ordered to pay a fine of 3 million CFA Francs (about USD $5000); the journalists’ legal counsel has appealed the court decision.
Unclear. Reports indicate that the journalists were originally prosecuted under articles 490, 491, 492 and 497 of the Penal Code. However, the authorities later changed these charges and made reference to the Loi n°2020-001 du 7 janvier 2020 relative au code de la presse et de la communication, which only imposes civil penalties. In March 2023, Ayité and Kouwonou were summoned to court for sentencing in relation to this case, and both fled the country and went into hiding. Both were sentenced in absentia to three years in prison and ordered to pay a fine of 3 million CFA Francs (about USD $5000); the journalists’ legal counsel has appealed the court decision.
No. Restricting speech may be legitimate if made in the pursuance of a legitimate aim, including for respect of the rights or reputations of others, for the protection of national security or of public order, or of public health or morals. In this case, reports indicate that the arrests were politically motivated and reflect a sustained effort to silence legitimate criticism of the government. L’Alternative was suspended for four months in early 2021 after allegedly publishing false news which exposed embezzlement in the Togolese oil sector. The action therefore did not have a legitimate aim.
No. In the absence of a legitimate aim, no response would be necessary or proportionate.