Introduction
Sometime in April 2021, the Information and Communications Technology Authority (ICTA) of Mauritius proposed amendments to the ICT Act which were supposedly aimed at ‘regulating the use and addressing the abuse and misuse of social media in Mauritius’.
Having analysed the proposed amendments, MISA Zimbabwe makes the following submissions to the government of Mauritius, the Ministry of Information Technology Communication and Innovation and ICTA, submissions of which are informed by the need to create safe online spaces while protecting digital rights, more specifically freedom of expressions, access to information and the right to privacy.
Analysis
MISA Zimbabwe noted that the consultation paper did not provide any clarity with regards to what entails abuse and misuse of social media. Although reference was made to the prevalence of offensive and illegal content, no explanation was given to precisely describe such content.
Section 18 of the ICT Act which gives ICTA the authority to take steps to regulate or curtail harmful and illegal content on the internet, also does not define what kind of content that is and neither does the interpretation section in Section 2.
One key requirement for any proposed laws, policy or regulation is clarity on what is considered lawful or unlawful. Such clarity is therefore critical as it will also properly inform whether or not the proposed new framework is necessary, or, whether other alternatives should be considered.
It should also be noted that not all offensive language should be or can be punishable at law, but only communication which in their particular circumstances and context, are regarded in the wider society as grossly offensive.
From the consultation paper, the Authority seems unsatisfied with the current existing approach to content moderation online, which is the self-regulation approach wherein the government through the responsible authorities should report to the social media platforms for such content to be taken down.
MISA Zimbabwe agrees with the observation by ICTA that social media platforms are not merely technical platforms, in the sense that, although being private companies, they are playing a critical public interest role in facilitating the exercise of digital rights.
However, MISA Zimbabwe is also cognisant of the existing policies developed by the social media platforms. For instance, Facebook has Community standards that define what is objectionable content. This content includes hate speech, cruel and insensitive content and violent and graphic content, among others. These standards are significant towards the creation of safe online spaces.
It is, however, impractical to measure the policies against the laws and policy of every country.
If anything, the policies and the procedural mechanisms that are in place for purposes of content moderation (the removal of content online), should be tested against the internationally recognised three-pronged test. This is so because as noted earlier, the internet and social media platforms have created a global village where information is shared and received between and among persons in different jurisdictions.
MISA Zimbabwe is not in support of the interference by governments in the content moderation processes by social media companies.
In that regard, multi-stakeholder engagement with civil society, the government and social media companies for purposes of transparency and review of the processes by social media platforms. This will improve on the turnaround times of their responses to complaints which seems to be the key challenge noted through the self-regulation approach.
Under the heading, ‘Impact of Social Media Platforms’, reference was made to several incidents of killings in India and New Zealand resulting from the spread of hate speech and disinformation on platforms like Facebook and YouTube.
MISA Zimbabwe acknowledges that such incidents have become prevalent in the digital age, but does not encourage the overregulation of the internet or of social media as the ideal solution.
In this instance, ICTA seems to be condemning the tools instead of condemning specific behaviour.
In that regard, instead of implementing the proposed framework, MISA Zimbabwe suggests that the government should be more deliberate around the education and capacitation of the public for purposes of fostering digital citizenship.
MISA Zimbabwe calls for a nationwide drive to encourage responsible use of social media platforms by flagging the conduct and content that is inappropriate and unlawful and also calling for the respect of the rights of other citizens.
This is premised on the realisation that despite there being instances of misuse of social media platforms, the internet and social media platforms, in particular, remain key tools for freedom of expression and access to information on individual and key national issues.
Where disinformation is concerned, this can be curbed through the development and deployment of fact-checking and information verification tools and also capacitating citizens to adopt such tools instead of using the legislative framework to criminalise free expression and promoting censorship.
ICTA also argues that laws providing takedown notices or removal orders would not be effective in Mauritius as there are no offices or representatives of the social media companies in Mauritius.
Respectfully, this view is misleading as internet users around the globe have relied on the same digital mechanisms for relief where an account or content is believed to be violating the community standards or the rights of others.
It is important that where content is believed to be unlawful in the local context, the government, through the responsible authority may intervene and request the social media companies to take reasonable action.
What is undesirable, however, is an environment where the government is given the authority to interfere, control and influence the content on the social media platforms as such a mechanism can be abused to the detriment of the citizens’ capacity to receive and impart information.
MISA Zimbabwe is of the view that the proposed framework by ICTA poses a threat to the right to privacy and the right to freedom of expression of citizens in Mauritius and will pose a dangerous jurisprudence on internet governance in Africa and the rest of the world.
The new framework seeks to deploy a technical toolset that will, among other things, be relied on for the decryption of encrypted traffic on social media platforms by segregating from all incoming and outgoing internet traffic in Mauritius and social media traffic.
This process as proposed, will involve the decryption, re-encryption and archiving of data for inspection purposes as and when required.
The investigation powers will be vested in ICTA and from the proposed operational framework, it is clear that ICTA will not rely on the police service or judicial authorities for the said investigations.
The nature of investigations proposed involves violations or limitation of rights thus judicial oversight is critical. No mention of such oversight mechanisms is provided for. The absence of safeguards against abuse, questions on the independence of the Authority, and the potential interference by the Executive, are also key considerations that are not provided for in the proposed framework.
The above framework is paving way for intrusive and mass surveillance of all citizens in Mauritius. This blanket approach to interception and the collection, processing, transmission and storage of data, frowns upon the principles of data protection and data privacy.
More so in the context of the internationally recognised three-pronged tests for the limitation of rights, hinged on proportionality, legality and necessity. The proposed framework is not proportionate and therefore not justifiable in a democratic society.
Further, the consultation paper is proposing the setting up of the National Digital Ethics Committee (NDEC), which will be the decision making body on content-related issues and provides that Section 32 (5) shall be applicable in its operations, being that:
“Nothing in this Act shall prevent a public operator or any of its employees or agents from intercepting, withholding or otherwise dealing with a message he has reason to believe is indecent or offensive….”
Too much discretion is being vested in the NDEC, to decide in its opinion whether online content under consideration is harmful and illegal. This resonates with earlier suggestions on the need for clarity on what entails content that is harmful and illegal instead of leaving the terms wide worded and vague and open to the interpretation of the NDEC.
Further, if ICTA goes ahead and sets up the NDEC, it will also be important that the members or position holders in that Committee be appointed through public nominations and public interviews. Such oversight mechanisms are critical for the protection of the rights of citizens taking into consideration the functions that the Committee will be undertaking.
The proposed framework intends to also block fake profile pages and also determine who created the fake profile. Another key emphasis is that online anonymity is a human right. In addition, what entails fake profiles can include instances of impersonation, but also instances where an individual uses a pseudonym, hence the need for further clarity on what a fake profile is in the view of the Regulator in Mauritius.
In a 2015 Report by the UN Special Rapporteur on Freedom of Expression, it was noted that encryption and anonymity are leading instruments for online security and they enable people to exercise their rights to freedom of opinion and expression, and the right to privacy in the digital age.
“In the contemporary technological environment, intentionally compromising encryption, even for arguably legitimate purposes, weakens everyone’s security online,” said the Special Rapporteur
The proposed framework, however, is advocating against encryption and anonymity.
The Constitutional provisions in Mauritius are also critical as we discuss this proposed framework. Section 12 (1) of the Constitution notes:
“Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference and freedom from interference with his correspondence.
Conclusion
Although the said rights can be subject to limitations as earlier discussed, such limitation should be done in the public interest, the interest of public order and public health, among others.
In that regard, the proposed framework does not fall within the lawful ambit of limitations. This proposed framework entrenches surveillance and censorship.
MISA Zimbabwe recommends the following to the relevant stakeholders in Mauritius:
- Refrain from imposing blanket or mass surveillance as it is neither necessary nor proportionate.
- Not to pave way for provisions that make identification of users a condition for one to access or use online services
- Ensure that judicial oversight is provided for in every instance where limitation of rights is provided for.
- Clarify through legislation the conduct that amounts to abuse or misuse of social media and the content that is harmful and offensive, taking note that not everything that is considered immoral should be illegal.
- Avoid the abuse of the legislative wheels towards overregulation of the internet.
- Ensure that any restriction on encryption and anonymity is on a case by case basis where it is necessary and proportionate, and where the authority concerned has reasonable suspicion that an offence has been committed.
