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Proposed Online Content Regulations stifles freedom of expression - MCT

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The Draft Electronic and Postal Communications (Online Content) Regulations which have been published by the Government unreasonably restrict the right to freedom of expression and media freedom.

They also restrain editorial independence which is a sacred foundation of journalism.

This is observed in an analysis on the Regulations carried by the Media Council of Tanzania (MCT).

The Council has noted that while it had taken the Government seven years to come up with the Draft Regulations, the authorities had called a meeting of stakeholders on short notice and asked them to come up with their contributions within two days.

 The few stakeholders who managed to attend the meeting called by the Government at the Julius Nyerere Convention Centre in Dar es Salaam on September 28, 2017 asked for more days to present their views – oral or written.

 The Government had called on the stakeholders by a Press Release issued on September 26, 2017 and were expected to come up with their opinion.

 Following the request of stakeholders, the government agreed and postponed the exercise to October 6, 2017.

 Since the government had taken more years to come with the proposed Regulations, “surely it can wait and provide more time to stakeholders to make their input.

According to the analysis by the Council, the provisions of these Regulations fall short of the acceptable regional and international standards on the right to freedom of expression on the Internet.

“They are equally short of the Constitutional standards as provided for under Article 18 of the Constitution”, the analysis further pointed out.

 It is therefore recommended by MCT that stakeholders advocate for the amendment of these Regulations or commence a judicial review suit to test the validity of these Regulations before the High Court of Tanzania and other regional bodies.

The full analysis on the Proposed Regulations on online content is as follows:-

 

SPECIAL REPORT: Proposed Online Content Regulations: Another noose around freedom of expression

On September 26, 2017, the Ministry of Information, Culture, Art and Sport issued a press release giving a two day notice to stakeholders to congregate in Dar es Salaam at the Julius Nyerere Convention Centre and present their oral or written submissions regarding the Draft Electronic and Postal Communications (Online Content) Regulations which had been published a few days before.

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

In this special report, the MEDIA COUNCIL OF TANZANIA (MCT) analyses the Draft Regulations with the aim of 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 Tanzania Constitution.

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1. Introduction

This is an analysis of the Electronic and Postal Communications (Online Content) Regulations, 2017. This analysis 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 regulations were made under section 103(1) of the Electronic and Postal Communication Act, 2010 (also loosely referred to as EPOCA). The Regulations are divided in five parts with a total of 16 regulations. Part one provides for the preliminary provisions; part two deals with general obligations of the Authority; part three is on general obligation 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.

2. The Extent to which the Regulations Constrain Editorial Independence, Media Freedom and 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.

Starting with editorial independence, this is constrained by the provisions of Regulation 12(1) (a)-(l) which provide for a list of contents which are prohibited (The regulation is discussed further in part 3 of the report). The list is too long and contains matters which are so wide and capable of multiple interpretation and manipulation. It is opined that through this regulation, the government can decide the type of content they want to be published and that which they don’t. Through this long 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 of mandatory registration is deemed as a 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 the source of content. This may affect the source of the information and individuals may not be willing to provide information for fear that their identity may be disclosed. (Further discussion in part 3 of the report).

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 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 malafide 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 café to put in place a filtering mechanism to prevent access to prohibited content. This requirement is too general and likely to affect the rights of the individual to access certain information and consequently affect their right to freedom of expression. (Further Discussion in part 3 of the report).

In short, 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.

3. Regulations Conformity to the International Standards and Constitution of the United Republic of Tanzania

Internationally, the right to freedom of expression is provided for under Article 19 of the Universal Declaration of Human Rights, 1948.[1] 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 General Comment 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, affirming, 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 International Covenant on Civil
and Political Rights.

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:

(a) For respect of the rights or reputations of others; and

(b) For the protection of national security or of public order, or of public health or morals.

  • Those are the only permissible restriction 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 conformity 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) 1987 guarantees the right to freedom of expression in Article 9 using the following terms:

  1. Every individual shall have the right to receive information.
  2. Every individual shall have the right to express and
    disseminate his 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 provides that:

  1. 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.
  2. Everyone shall have an equal opportunity to exercise the right to freedom of expression and to access information without discrimination.

At this point we have seen that in international as well as regional declarations, the right of freedom of expression has been recognized to include the expression through the medium of Internet. However, the international community especially the Special Rapporteur on the Right to Freedom of Expression has shown their concern on government grip on the flow of the information on the Internet and thus recommended some standards which shall be observed in regulation of the Internet content.

First, journalists and bloggers shall not be subjected to registration or licensing requirements.[2] 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. In the same line there should not be licensing or registration of the 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.[3]

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

 Second, 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.[4]

 The Regulations fall short of this standard in that they provide very broad latitude of prohibited content which may jeopardize 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 as compared to permissible exceptions under the international standards. What is worse is, some exceptions are open-ended which means that they can be used injudiciously. Also, some of these exceptions are too wide, for instance prohibition of content on bad language is very unreasonable and ambiguous because the regulation does not stipulate exactly 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 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 which is 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 a kind of unnecessary censorship which only seeks 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. It is said that, such involvement of private actors represents two major problems in regards to 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 on freedom of expression criticized 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 the content which 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 service provider shall suspend or terminate the subscriber’s account access. This is quite strange. The law does not even require the service provider 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/herself through the Internet. This is contrary to international standards as said earlier.

 

Moreover, the provisions of Regulation 8(b) requires 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 are no any safeguards or requirement for the content host to satisfy himself that the reported content is a prohibited one. Again, even if this was the case, the international standard is clear that these bodies are not judicial bodies. They have no requisite expertise of deciding whether this content is really illegal or not. That is why it is required under international standards 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 really in jeopardy.

 Fourth, filtering systems which are not end-user controlled – whether imposed by a government or commercial service provider - are 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. [5]

On this aspect, there is a regulation which requires online content provider to provide users with content filtering mechanism and parental control. This is provided under Regulation 13(b). This is an end user filtering mechanism as required in international standards; however, the Regulations do not require the 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 café to put in place a filtering mechanism to prevent access to prohibited content. In short, the regulation has to large extent failed to accommodate this requirement.

 Fifth, exercise of the right of freedom of expression through hidden identity or anonymity.[6] 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.

Regulations fall short of this standard for restricting the rights of individuals to post on social media through anonymity. Regulation 7(1)(c) places an obligation upon bloggers and online forums to set a mechanism for the identification of the source of content. Technically, this means that blogs or forums which allowed users to post their content through anonymity or other hidden identity can no longer operate on that basis. This is because they are required by law to set mechanism to identify source of their content, which means to identify the users who are posting on their blogs or forums. This is a serious attack to the right to freedom of expression through Internet. Anonymity provides a privacy zone for individuals to express their opinions.

 

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

Coming to Tanzania, the provisions of Article 18 of the Constitution of the United Republic of Tanzania, 1977 provides for the right to freedom of expression. What is interesting about this article is that it does not contain any restrictions or limitations on the exercise of this right. It guarantees everyone a right to freedom of opinion and expression of ideas and right to seek, receive and impart information regardless of the national frontiers.

These Regulations fall short of the constitutional provisions of this article. The regulation 7(1)(a) which provides for mandatory registration of online bloggers and forums goes contrary to the spirit of this article. Regulation 7(1) (c) which removes the curtain of anonymity also contravenes the provisions of Article 18 because they restrict unreasonably the right to freedom of expression. Also Regulation 9 falls in this list because it provides very broad exceptions on ground of 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 the United Republic of Tanzania, 1977.

 

4. Impact of the Regulations on Online Communications and work of Bloggers, Forums and Online Media

Generally, the Regulation largely impact on online communications, works of bloggers and online media.

First, because they put in place stringent requirements which may in turn affect their operation. For instance, the requirement for the bloggers and online forum to put in place mechanism for identification of the source of content, which by implication requires the blogger to identify users or individuals who are posting on their blogs or forums may affect the business of these bloggers. Individual may fear to use or post on these forums and consequently the bloggers may lose their business. Also, the requirement of registration and several obligations to discharge increase the hardships.

Second, the penalty provided by the regulations is hefty and likely to create an atmosphere of fear. Regulation 16 provides for a fine of not less than 5 million or not less than 12 months imprisonment or both for an offence of failing to comply with the provisions of the Regulations. This penalty is huge and likely to affect the operations of the bloggers and online media.

5. Summary of the Analysis

v Regulations unduly restrain editorial independence by containing a long and broad list of prohibited content which is open ended. This is provided under Regulation 12.

v Regulations unduly restrain media freedom by requiring mandatory registration of the bloggers and online media via regulation 7(1) (a) and also through regulation 7(1)(c) which abrogates the right of privacy of the source of the content.

v Regulations unduly restrict the right to freedom of expression through regulation 6(1)(b), (3) and (4) which requires the service provider to demand removal of the content from the subscriber’s account and suspend or terminate the access to the account. Also, regulation 9(c) which requires internet café to put in place filtering mechanisms for prohibited content.

v Generally, these regulations fall short of the acceptable regional and international standards on the right to freedom of expression on the Internet. The acceptable standards as proposed by the special rapporteur have not been reflected by these regulations.

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

v Regulations may affect the works of the bloggers and online media through stringent registration requirement and operation, also through imposition of hefty fines and punishment in the event of non-compliance.

6. Conclusion

In conclusion, it can be said that to a large extent the Regulations unreasonably restrict the right to freedom of expression and media freedom. They also restrain editorial independence which is a sacred foundation of journalism. The provision of these Regulations fall short of the acceptable regional and international standards on the right to freedom of expression on the Internet. They are equally short of the Constitutional standards as provided for under Article 18 of the Constitution. It is recommended that stakeholders advocate for the amendment of these Regulations or commence a judicial review suit to test the validity of these Regulations before the High Court of Tanzania and other regional bodies.

 

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