Menu

Regulatory

Malawi_Flag_featured

Malawi’s top judges affirm media freedom in defamation decision

, ,

 

A landmark victory for freedom of expression has been celebrated, with the High Court of Malawi (sitting as a Constitutional Court) declaring Section 200 of the Malawi Penal Code, which criminalised defamation, unconstitutional.

The court’s decision stems from the case of Joshua Chisa Mbele v The Director of Public Prosecutions & The Attorney General in which Mbele challenged the constitutionality of the now void section. The challenge was made amidst pending criminal proceedings against him for alleged defamatory statements concerning a public official.

The Section reads, ‘Any person who, by print, writing, painting, effigy or by any means otherwise than solely by gestures, spoken words, or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, shall be guilty of the misdemeanor termed “libel”.’

Mbele argued that the provision infringed on his right to freedom of expression under Section 35 of the Constitution and was inconsistent with Malawi’s obligations under regional and international human rights law.

The ruling marks a pivotal moment for media freedom and democratic discourse in Malawi. For decades, MISA Malawi has been advocating for the repeal of criminal defamation laws, recognising their chilling effect on journalists, activists, and ordinary citizens, stifling legitimate public discourse and critical reporting

The threat of arrests and imprisonment for alleged defamatory statements has long been a significant barrier to the free flow of information and the holding of public officials accountable.

In its judgment, the Constitutional Court affirmed that the right to freedom of expression is a foundational value in Malawi’s constitutional democracy. We call upon the Malawi Government to immediately affirm the position of the court and resist any temptation to appeal the ruling.

The Court rightly found that civil remedies for defamation provide a less restrictive and more proportionate alternative to criminalisation. It also highlighted that criminal defamation, particularly with the threat of imprisonment, disproportionately limits freedom of expression and is not the least restrictive means available for protecting reputation.

This judgment aligns Malawi with progressive regional and international human rights jurisprudence, which strongly supports the decriminalisation of defamation

As the Court noted, the breadth of Section 200, its potential for arbitrary enforcement, and its deterrent effect on legitimate public discourse rendered it incompatible with constitutional guarantees.

MISA Malawi applauds the Constitutional Court for upholding the principles of justice and freedom, and for recognising that in an open and democratic society, civil remedies are sufficient to address reputational harm. We particularly commend Mbele for taking a bold step in challenging the undemocratic laws and Justices Chifundo Kachale, Fiona Mwale and Mzondi Mvula for their courageous and progressive ruling.

With Section 200 of the Penal Code now unconstitutional and void, and with no further prosecutions to be brought under it, journalists and all Malawians can exercise their right to freedom of expression more freely and without fear of criminal sanctions. This is a monumental step forward for press freedom and democratic accountability in Malawi.

MISA Malawi remains committed to working with all stakeholders to ensure that media freedom and freedom of expression are fully protected and promoted in Malawi.

GOLDEN MATONGA
CHAIRPERSON, MISA MALAWI

This was first published here

David Omwoyo

MCK CEO David Omwoyo elected to helm East African Press Councils

, ,

 

The Media Council of Kenya (MCK) Chief Executive Officer, David Omwoyo, has landed a new role at the East African Press Councils (EAPC). In a press statement on 16 July, the EAPC said Omowyo was chosen at the election of its leadership team for the 2025-2027 term.

The regional body, which is dedicated to media regulation and content moderation, announced that the MCK boss is now its second Chairperson, and will succeed Kajubi Mukajanga of Tanzania.

The announcement was made during a strategic meeting of media regulators from the East African Community (EAC) on 15 July on the sidelines of the second Pan-African Media Councils Summit in Arusha

‘Omwoyo, previously the EAPC Secretary, brings extensive experience in advocating for uniform media standards across the region,’ read its statement. ‘His leadership is expected to bolster the EAPC’s mission to foster a free, accountable, and professional media landscape.’

Omwoyo, Sungura and Jabweli assume new EAPC roles

At the same time, the regional body said that the Executive Secretary of the Media Council of Tanzania (MCT) and Chairperson of the Network of Independent Media Councils in Africa (NIMCA), Ernest Sungura, assumes the role of Vice-Chairperson. Peter Okello Jabweli of the Media Council of Uganda has been appointed as Secretary.

Established in 2023, the EAPC unites media councils from EAC Partner States, including Kenya, Tanzania, Uganda, Rwanda, the Democratic Republic of Congo and Somalia.

According to the body, the trio will serve two-year terms, guiding it towards the ambitious goals of its 2024-2027 Strategic Plan.

‘The plan focuses on five key areas:

  • fostering robust and independent journalism
  • embracing innovation to adapt to the evolving media landscape
  • ensuring the economic sustainability of media organisations
  • promoting high-quality, diverse and collaborative journalism, and
  • strengthening the EAPC’s long-term capacity and impact

The new leadership is expected to, among other things, advocate for harmonised accreditation for EAC member states through the development of a regional media protocol and to undertake a state-of-the-media survey for the region

During the EAPC inaugural Strategic Plan launch, Omwoyo described it as a significant milestone in the pursuit of media regulation and content moderation guided by common regional principles.

‘I am pleased that the resolve of media regulators in East Africa in 2019 to have a media that operates within values that we respect is finally achieved.’

The new Chairperson said the EAPC’s mission was geared towards ‘less of regulation and more of press freedom’.

BY JASON NDUNYU

THE KENYA TIMES

PICTURE: Courtesy Media Council of Kenya

This article was first published here

GSS_1306

‘Media councils must rise to rebuild trust, integrity in journalism’

, ,

 

Tanzania’s Vice-President Dr Philip Mpango has warned that unchecked spread of disinformation, hate speech and unethical journalism, particularly through digital platforms, is eroding public trust and threatening the future of independent media across Africa.

He issued the warning yesterday when officiating at the opening of the Network of Independent Media Councils in Africa (NIMCA) conference in Arusha. The event coincided with the 30th anniversary of the Media Council of Tanzania (MCT).

The network gathers media regulators and practitioners from across the continent to address challenges facing journalism in a rapidly changing media environment, such as that which the VP said Africa is witnessing, along with an increasing erosion of trust in the media.

He said the spread of disinformation, hate speech and divisive narratives is weakening traditional media credibility and diminishing the authority of media councils, calling for urgent reforms in media regulation frameworks

These structures account for the growing impact of AI in news production, editing and distribution, he said, acknowledging AI’s potential to change journalism, ‘despite that it is being misused to create and disseminate false content at alarming speeds’.

‘I urge this conference to propose legal and policy frameworks that enable Africa to benefit from AI while safeguarding journalistic ethics, the right to accurate information and freedom of expression,’ he told the gathering.

To counter disinformation and strengthen journalism, media councils need to actively enforce professional ethics, handle public complaints transparently and invest in periodic training to equip journalists for the modern news landscape, he specified.

‘Media councils must rise to the challenge of rebuilding trust and integrity in journalism. Ethical reporting must be non-negotiable,’ the VP intoned, insisting that media councils need to uphold strong accountability mechanisms.

Tanzania is hosting the conference, the first since NIMCA’s formation in 2024 in Cape Town, South Africa. Mpango described this as an honour for the country and for the MCT.

The council worked closely with Information authorities to reformulate media policy, he said, reiterating that the core mandate of media councils is to regulate the conduct of media houses, enforce ethical standards and protect the integrity of the journalism profession

‘In doing so, media councils build public trust and help raise standards of journalism across the continent,’ Mpango confirmed, noting, however, that financial difficulties face many African media houses. ‘This often leads to sensationalism and ethical compromises in pursuit of revenue and popularity.’

Sustainable development in the media sector requires robust legal and institutional frameworks that uphold freedom of expression and the right to access information, he stated.

Prof Palamagamba Kabudi, Tanzania’s Information, Culture, Arts and Sports minister, said the 4Rs agenda has helped strengthen media freedom, praising MCT for its close collaboration with the ministry in improving the media framework.

Susan Namondo, United Nations Resident Coordinator in the United Republic of Tanzania, praised the government for its legal reforms, particularly recent amendments on cybercrime and media service laws

Ernest Sungura, MCT Executive Director and the first Chairperson of NIMCA, said Africa’s media sector faces serious challenges that require a unified voice and coordinated solutions, including media sustainability and press freedom.

He said stronger institutional support to ensure media houses maintain their watchdog role while upholding ethics and professionalism, is vital.

THE GUARDIAN

PICTURE: Media Council of Tanzania Executive Director Ernest Sungura urges stronger institutional support for the media

This article was first published here

Screenshot_20250714_201605_Gmail

Top African human rights protector heralds NIMCA’s contributions

, ,

 

Keynote address for the Pan-African Media Councils Summit and the inaugural Annual General Meeting of the Network of Independent Media Councils in Africa

Ourveena Geereesha Topsy-Sonoo, Commissioner at the African Commission on Human and Peoples’ Rights

Distinguished representatives of media councils, distinguished guests, ladies and gentlemen,

I am honoured to participate in and deliver the keynote address.

At the outset, allow me to express my regret at not being able to be with you in person at this august gathering due to unavoidable circumstances. However, I commend the organisers for convening this important meeting under the theme of ‘Advancing Media and Communication Regulations for Journalism Excellence in Africa’.

Allow me to introduce myself. I am Ourveena Geereesha Topsy-Sonoo, Commissioner at the African Commission on Human and Peoples’ Rights. In addition, I serve as the Commission’s Special Rapporteur on Freedom of Expression and Access to Information in Africa, a special mechanism with the mandate to oversee the implementation of Article 9 of the African Charter on Human and Peoples’ Rights on the right to receive information and the right to express and disseminate opinions within the law.

Ladies and gentlemen, distinguished participants,

Freedom of expression gives special rights and duties to the media. The media informs society on matters of public interest and creates an important platform for public debate, scrutiny, and reflection

It can be said that independent media and quality journalism are considered to be watchdogs of a democratic society.

The Commission has consistently reiterated the importance of free expression and press freedom. These standards are reflected in the Declaration of Principles on Freedom of Expression and Access to Information in Africa, which was adopted by the Commission to give effect to Article 9, reaffirming in the preamble, and I quote: ‘ .. The key role of the media and other means of communication in ensuring full respect for the right to freedom of expression, promoting the free flow of information and ideas, assisting individuals in making informed decisions, and facilitating and strengthening democracy.’

It is for this reason that I hereby heartily commend the establishment of the Network of Independent Media Councils in Africa, or NIMCA, which was officially launched in May 2024 at the inaugural meeting of African media councils in Cape Town, South Africa.

NIMCA, a continental initiative, was founded to unite independent media content regulatory bodies across Africa, whose core values include freedom of expression and credible and accountable media, in addition to adherence to the Commission’s Declaration which includes several principles, but above all, stresses the importance of creating an enabling environment to achieve an independent media.

Ladies and gentlemen,

The media is entrusted with a very important role: to inform society about matters that are important to it and to create a platform for public debate, reflection, and scrutiny. A key aspect of media independence is the ability to regulate itself

It is for this reason that the Declaration includes principles on media independence.

The following are excerpts of its principles:

Principle 12 on Media Independence provides that, and I quote: ‘States shall guarantee the right to establish various forms of independent media, including print, broadcast and online media.’

‘Any registration system for the media shall be for administrative purposes only and shall not impose excessive fees or other restrictions on the media.

‘States shall develop regulatory environments that encourage media owners and media practitioners to reach agreements to guarantee editorial independence and to prevent commercial and other considerations from influencing media content.’

Furthermore, Principle 16 provides that ‘States shall encourage media self-regulation, which shall be impartial, expeditious, cost-effective and promote high standards in the media’.

‘Co-regulation may also be encouraged by states as a complement to self-regulation, founded on informed collaboration between stakeholders, including the public regulatory authority, media, and civil society’

These principles highlight the critical role played by independent media councils, in addition to the importance of media self-regulation mechanisms which are independent from government control and committed to upholding the ideals of a free press.

In addition to this, a crucial aspect of media independence is the ability of journalists and other media practitioners to work in environments conducive to their important work. It is for this reason that the Declaration stresses the important role that states play in ensuring such an enabling environment.

Specifically, Principles 19 and 20 call on States to ensure both the protection and safety of journalists and other media practitioners. Principle 20 specifically calls on States to guarantee the safety of journalists, take proactive measures to ensure their safety, raise awareness, build the capacities of journalists and policymakers, and – lastly – take legal and other measures to investigate and prosecute attacks against journalists while ensuring access to effective remedies.

Accordingly, the Declaration affirms the principles for anchoring the rights to freedom of expression and access to information in Africa, guided by hard and soft law standards drawn from African and international human rights instruments and standards, including the jurisprudence of African judicial bodies.

It seeks to enhance the promotion and protection of the rights enshrined in Article 9 of the Charter by State parties. However, it is equally important for stakeholders, including the media and civil society, to utilise the Declaration and its principles as a yardstick to gauge the extent to which these rights are protected.

Read ‘The Special Rapporteur on Freedom of Expression and Access to Information in Africa celebrates 20 years’, here

Ladies and gentlemen, distinguished participants,

The Commission has also undertaken other initiatives aimed at enhancing press freedom in Africa. For example, cognisant of emerging threats within the digital space, the Commission adopted Resolution 591 on the need to undertake a study on digital violence against women’s rights in Africa, in order to assess the underlying causes, manifestations, and impacts of digital violence against women in Africa.

The study will undoubtedly take note of the specific situation of female journalists in Africa, highlighting their concerns and proposing recommendations on the measures which can be taken to ensure their protection

In addition, an ongoing initiative of the special mechanism, as mandated by the Commission, is to advocate for the decriminalization of defamation and similar laws in Africa, as stated in Resolution 169 on Repealing Criminal Defamation Laws in Africa.

Criminal defamation laws constitute a serious interference with freedom of expression and impinge on the role of the media as a watchdog, preventing journalists and media practitioners from practicing their profession without fear and in good faith.

This standard is similarly reflected in Principle 22 of the Declaration, providing inter alia that ‘States shall repeal laws that criminalise sedition, insult and publication of false news, in addition to amending criminal laws on defamation and libel in favour of civil sanctions, which must themselves be necessary and proportionate’.

Accordingly, the Commission, through its various interventions, is committed to working with States and other stakeholders to address all legal restrictions that violate the right to freedom of expression and access to information in Africa, as well as infringe on press freedom.

Ladies and gentlemen, distinguished participants,

As you dwell on the various discussions under the global theme of this gathering, I hope you will continually consult the Declaration and indeed other soft law documents of the Commission, such as its Resolutions, which highlight the importance of freedom of expression and press freedom

While I am not with you in person, I am certain that the constructive deliberations which will be held will yield fruitful insights on the various ways to ensure media independence and press freedom in Africa.

I once again commend the various organisers of this important gathering and look forward to receiving the outcome document, which I hope will include recommendations on how we can work together to ensure the right to free expression for all, and to address the importance of the role played by independent media councils in Africa.

I thank you for your kind attention.

 

 

pexels-ilabappa-20434739

Last reprieve for radio stations in Ghana operating outside regulations

, ,

 

The Ghana government has granted an additional 30-day grace period to 18 radio stations that were recently shut down by the National Communications Authority (NCA), the industry regulator, due to regulatory violations.

This extension aims to support the stations in rectifying the issues that led to their closure last month.

On 12 June 12 2025, President John Mahama had previously extended leniency to 64 radio stations that the NCA had also shut down for various regulatory infractions. However, during an update at the Ministry of Information in Accra, Minister for Communications, Digital Technology and Innovation Samuel Nartey George noted that only 18 of the 62 stations have initiated discussions and shown efforts to comply with the regulatory requirements outlined by the NCA following the President’s clemency.

The Minister expressed concern that many operators may be unable to meet the requirements before the new 30-day deadline expires. To ensure fairness, he announced that the NCA would provide these 18 stations with a formal notice of the extension

‘To avoid the perception of a deliberate attack, we have instructed the NCA to extend the deadline for these stations to complete the requirements,’ he stated.

George also highlighted that while some stations continue to operate under test transmissions to complete their processes, serious consequences await those that fail to address their regulatory issues once the nine days leading up to the new deadline pass. ‘Once the nine days expire, enforcement measures will be enacted. It’s unlikely that the President will exercise further leniency,’ he warned.

He emphasised that, as businesses in Ghana, all radio stations are legally obligated to file their taxes, and urged operators not to deem these requirements as cumbersome, particularly since many have been operating under their licences for more than five years

Furthermore, the Minister mentioned ongoing discussions with PayPal regarding the expansion of services to Ghana and reiterated the importance of compliance with the Bank of Ghana.

He also shared his recent meeting with TikTok’s West African Government Relations Team on 26 June, which focused on implementing age restrictions, safeguarding minors and promoting responsible content creation as part of efforts to foster a safe and inclusive digital creative economy.

BROADCAST MEDIA AFRICA

PICTURE: Ila Bappa Ibrahim/Pexels

This article was first published here

African media

Implementation of Resolutions on digital rights instruments underway

, ,

 

The African Commission on Human and Peoples’ Rights (ACHPR)’s Special Rapporteur (SR) on Freedom of Expression and Access to Information, Commissioner Ourveena Geereesha Topsy-Sonoo, has begun the implementation of Resolutions 620, 630 and 631.

These Resolutions aim to develop African digital rights instruments for freedom of expression, access to information and information integrity solutions.

The SR is working with the African Alliance for Access to Data (AAAD), Media Monitoring Africa (MMA) and the SOS Coalition which are the implementing organisations for each of the Resolutions.

The AAAD is leading Resolution 620, which focuses on promoting and harnessing data access as a tool for advancing human rights and sustainable development in the digital age

For this Resolution, the SR Mandate includes consulting broadly around the continent to examine and develop appropriate normative standards to guide data collection, deployment and access issues concerning data and to support efforts that promote and protect access to data across Africa.

MMA, with the support of UNESCO, is leading Resolution 630, which is concerned with developing Guidelines to assist States to monitor technology companies in respect of their duty to maintain information integrity through independent fact checking

Here, the SR Mandate entails developing Guidelines with all interested parties, such as civil society, regulatory bodies and technology companies, to enable States Parties to effectively monitor the platforms’ performance in order to inform of the efforts to advance information integrity online, including the role of independent fact-checking in the African context.

SOS is leading Resolution 631, which is aimed at working towards the assessment of public service content (PSC) in this digital era and developing guidelines to ensure a public interest element for all platforms operating in Africa

Interested individuals and parties are invited to submit their views on Resolution 631 here.

As such, the SR Mandate is to consult with African role players with an interest in broadcasting, freedom of expression, media freedom, digital rights, access to information policy and lawmaking to assess their concept of PSC in current times.

This extends to developing Guidelines for Member States to assist them in developing a future focused policy framework for universal access to PSC in Africa.

These Resolutions all launched at the 2025 Digital Rights Inclusion Forum (DRIF) in Lusaka Zambia, which is hosted by the Paradigm Initiative (PIN). They have similar processes which include broad consultation at key African conferences.

Read ‘Digital rights, inclusion conference highlights human rights elements’, which looks at DRIF 2025, here

These sessions feature expert panelists who offer in-depth insights, while also allowing for broader participation by creating an opportunity for conference delegates to contribute during and after the sessions.

Each Resolution has a Google form where individuals can contribute their unique perspectives and to help shape the development of these Guidelines.

Organisations working in digital rights, broadcasting, media freedom, civic technology, journalism, access to information policy and lawmaking, internet governance and related fields are encouraged to participate in these consultations

The ACHPR, along with the implementing organisations, further urges funders to support this critical work, financially or otherwise, keeping in mind that the digital space has become central to civic engagement, democratic participation and access to services.

These instruments will ensure a rights-based approach to internet governance in Africa and further benefit African States while potentially advancing freedom of expression and access to information in the digital age.

For more information:

SOS COALITION

PICTURE: ‘Tell the African Story’ (DW Akademie)

pexels-awet-amine-269808428-13026996

Posts on Somaliland current affairs on Facebook under examination

, ,

When people have exhausted Meta’s appeals process on Facebook, Instagram or Threads, they can challenge the company’s decision on a piece of content by appealing to the Oversight Board. Meta can also refer cases to us.

Once we have selected a case, our Board Members examine whether Meta’s decision to remove or leave up content was in line with its policies, values and human rights commitments.

While we refer to Meta’s content policies and values as we consider cases, we sometimes question those policies when we believe they do not comply with Meta’s own commitment to protecting freedom of expression and other human rights.

Today, the Board is announcing a new case for consideration. As part of this, we invite people and organisations to submit public comments.

Case selection 

As we cannot hear every appeal, the Board prioritises cases that have the potential to affect lots of users around the world, are of critical importance to public discourse or raise important questions about Meta’s policies.

The case we are announcing today is:

Reporting on Somaliland Current Affairs

A user appeal to restore content 

To read this announcement in Somali, click here.
Si aad u akhrido ogeysiiskan af Soomaali, guji halkan.

In January 2025, four posts in Somali were published on a Facebook page, discussing Somaliland politics. Somaliland self-declared its independence from Somalia in 1991. No country has recognised its statehood.

The Facebook page describes itself as belonging to freelance journalism and has about 90 000 followers. It is not part of Meta’s cross-check programme to prevent enforcement errors, that also includes additional levels of review for certain entities, including journalistic and civic entities.

The four posts describe and discuss recent socio-political events concerning Somaliland.

Two of the posts are about Somaliland President Abdirahman Mohamed Abdillahi’s recent foreign policy engagements. The posts include photos of a foreign trip with captions stating that media coverage was prohibited

Two other posts relate to a public, official ceremony in Somaliland and a political conference, with descriptive captions.

Two users reported the page under Dangerous Organisations and Individuals and Hateful Conduct policies, and it was enqueued for a review. When a page is enqueued for review, Meta evaluates key elements of the page, such its name, bio details and cover photo, and its posts.

A human reviewer found the page violated the Hateful Conduct policy and it was ‘unpublished’ (a measure similar to account deactivation). None of the four posts were reported, but each was removed for individually violating the Hateful Conduct policy.

After the Board selected the cases, the company reviewed its initial decision to unpublish this page and also determined that it incorrectly removed all four posts. Consequently, Meta restored all posts, re-published the page and reversed the strike against the posting user’s account and page.

In their appeal to the Board, the posting user stated that their intention was to share information, not to attack or discriminate against any individual or group and that their posts did not violate the Hateful Conduct policy

The Board selected these enforcement errors to examine the impacts of Meta’s moderation on media freedom in the Horn of Africa, in the context of its approach to the governance of pages.

These cases fall within the Board’s Elections and Civic Space priority.

The Board would appreciate public comments that address:

  • media freedom and safety of journalists in Somaliland, the role of social media and the situation for freedom of expression
  • challenges in preventing wrongful enforcement against journalistic content, pages and accounts, especially in non-English speaking regions where freedom of expression is heavily restricted, and
  • good practices for ensuring access to adequate remedies for journalists and media organisations locked out of pages or accounts as a result of wrongful enforcement

In its decisions, the Board can issue policy recommendations to Meta. While recommendations are not binding, Meta must respond to them within 60 days. As such, the Board welcomes public comments proposing recommendations that are relevant to these cases.

Public comments 

If you or your organisation feel you can contribute valuable perspectives that can help with reaching a decision on the cases announced today, you can submit your contributions here.

Please note that public comments can be provided anonymously.

The public comment window closes at 23.59 Pacific Standard Time (PST) on Tuesday 15 July 2025.

OVERSIGHT BOARD

PICTURE: Awet Amine/Pexels

This announcement was first published here

pexels-smadar-bergman-1529782-8442928

‘Indigenous nudity content on platforms needs exception guidelines’

, ,

 

The Oversight Board has overturned Meta in three out of four cases that demonstrate the disproportionate impacts of the Adult Nudity and Sexual Activity policy on users who share images of bare-chested indigenous women, when such nudity is part of the Indigenous Peoples’ beliefs and customs. It has also upheld a decision to leave up content in a third case due to the newsworthiness allowance.

Meta’s complete prohibition on posting images of bare-chested indigenous women in non-sexual contexts, along with granting ad hoc exceptions, does not result in necessary and proportionate restrictions on expression.

Rather, users’ right to expression, including that of Indigenous Peoples for whom such nudity is part of their culture, is disproportionately restricted.

Meta should make public its Adult Nudity and Sexual Activity policy exception allowing content depicting bare-chested indigenous women in some circumstances, when such nudity reflects socially accepted custom and belief, and does not misrepresent these practices

The Board has reviewed four cases with imagery showing bare-chested indigenous women in non-sexual contexts.

In the first case, an Instagram user posted an image in July 2024 featuring two bare-breasted women in the traditional attire of the Himba people of Namibia. The post includes an English quote and caption referencing the Himba.

The user appears to be a visitor or tourist, rather than Himba. An automated nudity and pornography classifier removed it. The user appealed the removal. Following a human review, Meta confirmed its decision.

The second case involves an Instagram user posting a short video in July 2024 featuring a Himba man dancing, with bare-chested women in traditional Himba attire in the background. The caption includes references to Himba people and culture. After automated and human reviews, Meta removed the content.

In the third case, a Brazilian political party’s official Instagram account in March 2023 posted an image of bare-chested indigenous women in traditional Yanomami clothing. The accompanying text praises government efforts to combat illegal mining on Yanomami lands.

A user reported the post and a classifier identified it before a human reviewer removed it for violating the Adult Nudity and Sexual Activity policy. The posting user appealed via a personal contact at Meta. Meta restored it under the newsworthiness allowance, finding the content’s public interest value outweighed the harm, with a newsworthy label.

In September 2024, Meta referred the case to the Board.

In the fourth case, the administrator of a German newspaper’s Facebook page posted an image in May 2023 of a bare-chested indigenous woman holding a child. The caption and text overlay in German describe an American journalist’s visit to a Mayan village and her perspectives on different cultures’ parenting approaches, and the post links to an article.

The image of the indigenous woman seems to belong to a photo agency, appearing in online collections of the Karo people of Ethiopia.

A user reported the content to Meta and two human reviewers agreed it violated the Adult Nudity and Sexual Activity policy.

As this account is in the cross-check programme, the post was sent for additional review. Meta then determined the content should receive a spirit of the policy allowance and remain on Facebook, as, even though it violated Meta’s nudity rules, keeping it up was in line with the policy rationale.

Meta referred the case to the Board in September 2024.

Key findings

While Meta prohibits images of indigenous women with ‘visible female nipples’ in non-sexual contexts, it sometimes allows this content via the spirit of the policy and newsworthiness allowances.

In the Yanomami post, Meta was right to keep this post up as newsworthy content due to its public interest value and limited risk of harm. The Yanomami have a social and cultural practice of bare-chested nudity and in the image there are indicators of consent.

Regarding the two Himba posts, the Board finds that Meta was wrong not to apply a spirit of the policy allowance. Meta did not follow its own exception guidelines concerning implicit consent in the context of indigenous nudity which focus on whether bare-chested nudity forms part of the beliefs and customs of an Indigenous People and are socially accepted.

Nudity is a socially and historically accepted aspect of Himba custom, and both posts show sufficient indications of implicit consent to being photographed or recorded to justify the allowance

In the Maya/Karo post, the majority of the Board finds that the fact that the image was shared by a news outlet is not a decisive factor in establishing consent. In this case, there is a clear disparity between the subject of the article (Mayan peoples) and the individual in the image (a Karo woman).

The content, focused on parenting practices in Mayan cultures, does not relate to a social or historical tradition of nudity. Allowing the content to remain on the platform is therefore inconsistent with Meta’s policy rationale.

A minority of the Board disagrees, finding that Meta made the right decision to keep the post up, as the nudity in the image aligns with the cultural norms of the depicted indigenous group. For the minority, the disparity between images was a minor mistake that does not diminish the public interest in the post.

Removing the Himba posts and keeping the Maya/Karo post up was also inconsistent with Meta’s human rights responsibilities. Meta’s complete prohibition on posting images of bare-chested indigenous women in non-sexual contexts and granting ad hoc exceptions disproportionately restricts expression.

It disproportionately impacts indigenous women’s right to self-expression and sharing information about cultural practices, and restricts others’ access to that information. The Board underscores the importance of representing indigenous cultures in ways that avoid distortion or decontextualisation

The Board is concerned that the spirit of the policy and newsworthiness allowances have significant limitations of accessibility and predictability. Therefore, it believes a clearly defined exception is preferable.

The Board considers that Meta could develop internal guidelines to assist at-scale reviewers to escalate indigenous nudity content that could potentially benefit from such exceptions, using objective criteria, such as relevant hashtags or visual clues including cultural symbols.

The Oversight Board’s decision

The Board overturns Meta’s decision to take down the two Himba women and Himba people dancing cases. The Board also overturns Meta’s decision to leave up the Maya/Karo case. The Board upholds Meta’s decision to leave up the Yanomami case.

The Board also recommends that Meta:

  • Make public its Adult Nudity and Sexual Activity policy exception allowing content depicting bare-chested indigenous women in some circumstances. This exception should be applied on escalation only. The exception should allow such nudity where it reflects socially accepted custom and belief, and does not misrepresent these practices.

OVERSIGHT BOARD

PICTURE: Smadar Bergman/Pexels

This decision was first published here