Online Content Regulations will strangle freedom of expression – 2

05Oct 2017
The Guardian Reporter
The Guardian
Commentary
Online Content Regulations will strangle freedom of expression – 2

This is the second and final part of a Media Council of Tanzania (MCT) analysis of the Draft Electronic and Postal Communications (Online Content) Regulations published late last month, with stakeholders and members of the public given until tomorrow....

(October 6) to consider the proposals and come up with their own input meant to enrich. 

This analysis seeks to establish whether the regulations impact on editorial independence, press freedom and freedom of expression in general, and whether they conform to regional and international standards as well as the Tanzanian Constitution. Read on:

Second, there should be limited scope of the prohibited content. According to the UN Special Rapporteur on the right to freedom of expression, the only exceptional types of expression or content that states are required to prohibit under international law are child pornography, direct and public incitement to commit genocide, hate speech, and incitement to terrorism.

The draft Regulations fall short of this standard in that they provide very broad latitude of prohibited content which may jeopardise in substance the enjoyment of the right to freedom of expression. Regulation 12(1)(a)-(l) provides a long list of contents which are prohibited.

This list is very broad relative to permissible exceptions under international standards. Even worse, some exceptions are open-ended, which means that they can be used injudiciously.

Also, some of these exceptions are way too wide for comfort. For instance, prohibition of content on account of presumed bad language is unreasonable and ambiguous because the regulation does not stipulate exactly what may amount to bad language. Rather, it only gives inclusive instances of where one may be said to have been using bad language.

This means that this is an open-ended exception, because what may amount to bad language to one person may not necessarily amount to bad language to another. It is a subjective concept.

Regulation 12(1)(l) prohibits publication of false information likely to mislead or deceive the public unless it is satire and parody or fiction or it is pre-stated that it is not based on facts. This is unnecessary censorship clearly meant to restrict the right to freedom of expression.Thirdly, third party or Internet service providers, bloggers or forums should not act on behalf of the authorities as censors. Such involvement of private actors represents two major problems in respect of freedom of expression.

First, these are not judicially qualified organs to determine whether a certain website or content might contravene the law or whether an individual user might be likely to publish something that is considered to be illegal. When faced with a borderline case, they are likely to err on the side of caution and decide not to host the site.

Second, there are no safeguards to ensure that these third parties do not abuse their powers and there is no system to call them to account. This is problematic, particularly since third parties’ actions will have a critical impact on the right to freedom of expression of those who they decide to refuse access, as well as the right of others to receive information.

In his 2011 report, the UN Special Rapporteur criticised such intermediary liability systems, pointing to the lack of appeals mechanisms, the risk of self-censorship of intermediaries and the fact that private bodies are ill-placed to balance the different fundamental rights when taking decisions on content removal.

The Regulations fall short of this standard because they do allow the service providers and content hosts to remove content they deem to be prohibited. Regulation 6(1)(b) requires the service providers to contain in their agreement with subscribers the right to remove prohibited content.

Furthermore, under Regulation 6(3), the service provider is required upon notification by the Authority or any person affected by the content to inform the subscriber within 12 hours to remove the content complained about. Upon receiving notification, the subscriber is required to remove the prohibited content within 12 hours.

This is according to Regulation 6(4). In the event of failure to remove the said content, the service provider shall suspend or terminate the subscriber’s account access. This is strange, to say the least. The law does not even require the service providers to counter check if the reported content is really prohibited content. They have been given power to decide on the right of the individual to express himself or herself through the Internet.  This is contrary to international standards as said earlier.

Moreover, the provisions of Regulation 8(b) require the content host to remove the hosted content upon notification by a law enforcement agency, the Authority or any person affected by such content.

Again, there is not even a single safeguard or requirement for the content host to satisfy himself or herself that the reported content is a prohibited one. And even if this were the case, the international standard is clear – that these bodies are not judicial bodies and have no expertise with which to decide whether this content is really illegal.

That is why international standards state that orders of removal of content shall be issued by a competent court, and not otherwise. It is plainly clear that, with this kind of provisions, the right to freedom of expression is truly in jeopardy.

Fourth, filtering systems not controlled by end-users – whether imposed by a government or commercial service providers – is a form of prior-censorship and cannot be justified. The distribution of filtering system products designed for end-users should be allowed only where these products provide clear information to end-users about how they work and their potential pitfalls in terms of over-inclusive filtering.

One regulation requires online content providers to provide users with a content filtering mechanism and parental control. This is provided for under Regulation 13(b). Although this is an end user filtering mechanism as required by international standards, the draft Regulations do not require content providers to provide instruction on how these filtering mechanisms work to their users.

Also in some regulations, the service providers are required to put in place a filtering mechanism without stating that it should be end-user oriented. For instance, Regulation 9(c) requires internet cafés to put in place a filtering mechanism to prevent access to prohibited content. In short, the regulation has generally failed to accommodate this requirement.

Fifth relates to the exercising of the right of freedom of expression through hidden identity or anonymity. Anonymity provides an individual with a zone of privacy online to hold opinions and exercise freedom of expression without arbitrary and unlawful interference or attacks.

The draft Regulations fall short on this standard by restricting the right of individuals to post on the social media through anonymity. Regulation 7(1)(c) places an obligation upon bloggers and online forums to put in place a mechanism for the identification of the source of content.

Technically, this means that blogs or forums now allowing users to post content through anonymity or other hidden identity would no longer operate on that basis. This is because they are required by law to have a mechanism to identify the sources of their content, which means identifying the users posting on their blogs or forums. This is a serious attack on the right to freedom of expression through the Internet.

Based on the above discussion, it is generally safe and sound to say that, these draft Regulations do not really conform to international standards on the right to freedom of expression through the Internet.

With respect to Tanzania, the provisions of Article 18 of the country’s 1977 Constitution provides for the right to freedom of expression. Interestingly, this article does not contain any restrictions or limitations on the exercising of this right. In fact, it guarantees everyone the right to freedom of opinion and expression of ideas and the right to seek, receive and impart information regardless of national frontiers.The draft Regulations fall short with regard to the constitutional provisions of this article. Regulation 7(1)(a), which provides for the mandatory registration of online bloggers and forums, runs contrary to the very spirit of this article.

Regulation 7(1)(c), which removes the curtain of anonymity, also contravenes the provisions of Article 18 because they unreasonably restrict the right to freedom of expression. Regulation 9 is similarly flawed in that it provides broad exceptions on prohibited content which are likely to restrict the right to freedom of expression. In short, the above mentioned provisions of the Regulations contravene the provisions of Article 18 of the Constitution of Tanzania.

Impact of the draft Regulations on Online Communications

The draft Regulations greatly impact on online communications, works of bloggers and online media by imposing stringent requirements that may in hamper their operations and business. For instance, the requirement for the bloggers and online forum to put in place a mechanism for identifying sources of content by implication requires bloggers to identify users or individuals posting on their blogs or forums – and this may disrupt the bloggers’ business bloggers. Individuals may fear to use or post on these forums, and the bloggers may consequently lose business.

The registration requirement and several obligations relating to ways of discharging duties make things even more difficult.

Second, the penalty provided for under the draft Regulations is hefty and likely to create an atmosphere of fear among operators and the public. For instance, Regulation 16 provides for a fine of not less than 5 million Tanzanian shillings or not less than 12 months imprisonment or both fine and imprisonment for failure to comply with the provisions of the Regulations. This penalty is unreasonably huge and likely to disrupt the operations of bloggers and online media.

Summary of AnalysisThe Regulations restrain editorial independence unjustifiably as they contain a long and broad open-ended list of prohibited content. This is provided for under Regulation 12.

They unduly restrain media freedom by requiring mandatory registration of bloggers and online media through Regulation 7(1)(a) and also through Regulation 7(1)(c), which abrogates the right of privacy of the source of particular content.

They unduly restrict the right to freedom of expression through Regulation 6(1)(b), (3) and (4), which requires service providers to demand removal of the content from the subscribers’ accounts and suspend or terminate the access to the accounts in question. Regulation 9(c) meanwhile requires internet cafés to put in place filtering mechanisms for prohibited content, which is similarly untenable.Generally, these regulations fall way short of acceptable regional and international standards on the right to freedom of expression on the Internet. The acceptable standards, as proposed by the Special Rapporteur, are not reflected by these regulations.

The Regulations do not conform to the provisions of Article 18 of the Constitution of the United Republic of Tanzania because they needlessly restrict the right to freedom of expression.

Therefore, the Regulations may disrupt the operations of bloggers and online media through stringent registration requirements and the imposition of hefty fines and other forms of punishment in the event of non-compliance.

Conclusion

In conclusion, it can be said that the draft Regulations unreasonably restrict the right to freedom of expression and media freedom. They also restrain editorial independence – which is a sacred foundation of journalism.  In sum, they fall way short of acceptable regional and international standards on the right to freedom of expression on the Internet. As importantly, they fall way short of standards as provided for under Article 18 of the Constitution of the United Republic of Tanzania, 1977.

Accordingly, it is seriously recommended that stakeholders advocate the amendment of these draft Regulations or line themselves for a judicial review suit before the High Court of Tanzania and other relevant regional bodies to test the validity of these Regulations.

Meanwhile, the following four sample scenarios that would be illegal under The Electronic and Postal Communication (Online Content) Regulations, 2017 could help in informing stakeholders’ views on the way forward. They have been drawn up by Twaweza, an independent citizen-centred initiative focusing on large-scale change in East Africa:

•    A journalism student wants to build up her profile and develop her skills so as to make herself more attractive to potential employers. So she decides to start a blog, posting some of her student assignments and other articles about student life. These posts become popular, and her fellow students enjoy commenting on her articles and the photos she shares.

Under the proposed regulations, she would have to register her blog with the Tanzania Communications Regulatory Authority (TCRA). This will probably involve paying a fee, which she cannot really afford. And she would also have to read every comment before it is published, which she does not have the time to do. So she shuts down the blog.

•    A ward councillor has set up a Facebook page for himself. Many of the residents of his ward support him, so they “like” his page. He posts news of his activities in council and around the ward and asks his followers for their comments and suggestions. Under the proposed regulations, he would have to pre-approve every comment and suggestion before it appears on his Facebook page. Facebook does not have the settings that would allow him to do this, so he has a choice: close down the page and lose the useful suggestions of his constituents, or keep the page option and risk prosecution.

•    A junior civil servant discovers information that a well-known businessman is exporting gemstones without paying any taxes and that the permanent secretary of their ministerial department has been paid to keep quiet. The civil servant knows that if she reports this to her boss, she will probably lose her job. And she is worried that if she speaks out in public, the businessman will be angry and will find a way to get back at her. So she joins an online forum, without revealing her name, and shares the information she has on there.

 The corruption is revealed, the authorities can investigate, and the civil servant remains safely anonymous. Under the proposed regulations, the businessman could go to court to force the online forum to find out her name. If the forum owners don’t reveal her name they could go to prison. In fact, even just not knowing her name could earn them a prison sentence. So they tell the businessman her name.

•    A young woman in Dar es Salaam is upset about the poor state of the roads near her house. She posts a photo on Facebook, asking why her member of parliament has allowed this to happen, and accuses him of being lazy. Under the proposed regulations, if the MP is offended by this she could be prosecuted and fined 5 million Tanzanian shillings – or even be given a prison sentence.

•    The first part of this analysis appeared in yesterday’s issue of The Guardian.