Online Content Regulations will strangle freedom of expression - 1

04Oct 2017
The Guardian Reporter
The Guardian
Commentary
Online Content Regulations will strangle freedom of expression - 1

On September 26, 2017, the Ministry of Information, Culture, Art and Sport issued a press release giving stakeholders a two-day notice to meet in Dar es Salaam and present their oral or written submissions regarding the Draft Electronic and Postal Communications ..........

(Online Content) Regulations published a few days earlier.

A few stakeholders made it on the day and asked the government to give them more time to prepare themselves. It was argued that it had taken the government seven years to come up with the draft regulations, and surely it could wait for a few more days for members of the public to consider the proposals and come up with some input. The government agreed and postponed the exercise to October 6, 2017.

The Media Council of Tanzania (MCT) analyses the draft regulations, with a view to establishing whether and to what extent 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.

IntroductionThis analysis of the Electronic and Postal Communications (Online Content) Regulations, 2017 presents the level and extent to which the Regulations constrain editorial independence, media freedom and freedom of expression in general. It assesses the Regulations’ conformity to regional and international standards and the Constitution of the United Republic of Tanzania as well as its impact on online communications and the work of bloggers, forums and online media.

These sixteen regulations were made under section 103(1) of the Electronic and Postal Communication Act, 2010 (also loosely referred to as EPOCA) and are divided in five parts. Part one provides for preliminary provisions’ part two deals with general obligations of the Authority, part three is on general obligations for online content, part four is on complaint handling, and part five is on miscellaneous provisions.

Briefly, the regulations cover matters relating to registration of online content providers, content of online communications, complaints handling mechanisms as well as offences and penalty thereof.

Although the Regulations were made specifically to regulate online content for the sake of ensuring that digital platforms are not used as a conduit for commission of offences and immoral activities, they contain provisions which overly restrict the right to media freedom and freedom of expression in general. 

There are some regulations which impose unnecessary censorship of content, others that prohibit anonymity, and still more that make requirement for registration of the bloggers and online content providers. 

There is also concern for the wide scope of the prohibited content and also the provision to giving intermediaries of power to interfere with the freedom of expression of members of the public.

Regulations versus Freedom of Expression

Indeed, there are some of the provisions of these regulations which constrain or impact negatively on editorial independence, media freedom and freedom of expression in general.

Editorial independence is constrained by the provisions of Regulation 12(1) (a)-(l) listing and elaborating on the prohibited contents. (The regulation is discussed further in part 3 of the report). The list is long indeed and contains matters capable of multiple interpretation and manipulation. Through this regulation, the government could decide the type of content it would want to see – or not to see – published. Through this list of what contents are prohibited, the regulations interfere with editorial independence.

Media freedom is constrained by the provisions of Regulation 7(1) (a) which requires the mandatory registration of bloggers and online media. The requirement is deemed as tactical censorship which may be used to restrain press freedom.

Also, it is constrained by the provisions of Regulation 7(1) (c) which places an obligation to bloggers and online forums to set up a mechanism for the identification of their sources of content. This may affect the source of the information and individuals may not be willing to provide information for fear that their identity might be disclosed. 

On the part of the freedom of expression generally, the provisions of Regulation 6(1) (b) and 6(3), which empowers the application service licensee to inform the subscriber to remove prohibited content within 12 hours after the notification and suspend or terminate the subscriber’s access to the respective account in event of failure to remove the content, interferes with the right to freedom of expression.The regulation does not provide any safeguards against dishonest or deceitful intention by individuals who may use that loophole to curtail the rights of other individuals to express their opinion.

Also, Regulation 9(c) requires internet cafés to put in place a filtering mechanism to prevent access to prohibited content. This requirement is way too general and likely to affect the rights of the individual to access certain information – consequently affecting their right to freedom of expression.

In a word, some of the provisions of the Regulations as discussed above constrain and thus impact negatively on editorial independence, media freedom and freedom of expression in general.

International Standards, Constitution of Tanzania

Internationally, the right to freedom of expression is provided for under Article 19 of the Universal Declaration of Human Rights, 1948. Also, it is provided for in Article 19 of the International Covenant on the Civil and Political Rights, 1966.

On September 2011, the UN Human Rights Committee issued General Comment No. 34 in relation to Article 19 of the ICCPR. This is particularly instructive about a number of issues relating to freedom of expression on the internet.

Importantly, General Comment No. 34 states that Article 19 of the ICCPR protects all forms of expression and the means of their dissemination, including all forms of electronic and internet-based modes of expression. In other words, the protection of freedom of expression applies online in the same way as it applies offline.

The right to freedom of expression was not designed to fit any particular medium or technology. Regardless of whether it is exercised online or offline, it is an internationally protected right to which almost all countries of the world have committed themselves.

Further, in June 2012, the United Nations Human Rights Council unanimously adopted the landmark Resolution on the promotion, protection and enjoyment of human rights on the internet. It affirmed that the same rights that people have offline must also be protected online – in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice, in accordance with Articles 19 of the Universal Declaration of Human Rights and the ICCPR.

This right is not absolute as it permits some restrictions as stipulated under Article 19(3) of the ICCPR. It may be subject to restrictions, but these shall only be such as are provided by law and are necessary – for respect of the rights or reputations of others; and for the protection of national security or of public order, or of public health or morals.

Those are the only permissible restrictions under international law. Any other kinds of restrictions are not permitted. Any restrictions on the operation of websites, blogs or any other internet-based, electronic or other such information dissemination system, including systems to support such communication, such as internet service providers or search engines, are only permissible to the extent that they are compatible with paragraph 3 of Article 19 of the ICCPR.

Restrictions on internet content, whether they apply to the dissemination or to the receipt of information, should only be imposed in strict compliance with the guarantee of freedom of expression, taking into account the special nature of the internet.

On the regional level, the African Charter on Human and Peoples’ Rights (the African Charter) of 1987 guarantees the right to freedom of expression in Article 9, saying every individual shall have the right to receive information as well as the right to express and disseminate his or her opinions within the law.

This Article is clarified further through the Declaration of Principles on Freedom of Expression in Africa (the African Declaration), 2012. Article 1 of this declaration stipulates that freedom of expression and information, including the right to seek, receive and impart information and ideas, either orally, in writing or in print, in the form of art, or through any other form of communication, including across frontiers, is a fundamental and inalienable human right and an indispensable component of democracy.

It adds that everyone shall have an equal opportunity to exercise the right to freedom of expression and to access information without discrimination.

Thus, in international as well as in regional declarations, the right of freedom of expression has been recognised to include the expression through the internet. But the international community, especially the Special Rapporteur on the Right to Freedom of Expression, has shown serious concern on governments’ grip on the flow of the information on the Internet and thus recommended standards to be observed in regulating Internet content.

First, journalists and bloggers shall not be subjected to registration or licensing requirements. No one should be required to register with or obtain permission from any public body to operate an Internet service provider, website, blog or other online information dissemination system, including Internet broadcasting.

Likewise, there should be no licensing or registration of individual internet users or service providers or content providers unless there is evidence that it is necessary for the maintenance of public order or protection of the rights of others.

The draft regulations fall short of this standard because, in fact, they require the registration of the bloggers, forum and online media. This is provided for under regulation 4(1) (a) read together with regulation 7(1) (a) of the Regulations. Regulation 7(1) (a) provides for the mandatory registration of the blogger and online forum with the Tanzania Communications Regulatory Authority (TCRA), contrary to acceptable international standards.

Secondly, there should be limited scope of the prohibited content. According to the Special Rapporteur, the only exceptional types of expression or content that states are required to prohibit under international law are: (a) child pornography; (b) direct and public incitement to commit genocide; (c) hate speech; and (d) incitement to terrorism.

The Regulations fall short of this standard in that they provide very broad latitudes 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 unnecessarily wide. For instance, the prohibition of content on bad language is unreasonable and ambiguous because the regulation does not specify what may amount to ‘bad language’.

It only gives inclusive instances of where one may be said to have been using bad language. This means that it 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.

•    To be continued.