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Over-regulation of the internet threat to digital rights

27 Apr, 2021
It is reported that the Minister of Information, Publicity and Broadcasting Services, Senator Monica  Mutsvangwa, was recently asked in parliament what the government is doing to ensure and enforce cybersecurity and also punishing internet abusers.

One of the reasons that contributed to the increased levels of Internet penetration in Africa and in Zimbabwe was that the internet space was perceived as a ‘free and unregulated space’ for freedom of expression and access to information.

It was also viewed as a platform that provided the freedom, security and privacy for free expression and exchange of ideas and information.

This, however, has never been the true state of affairs as far as the Internet is concerned.  Social media platforms have policies that regulate user behaviour on their platforms.

In Zimbabwe, existing laws have also been used to punish certain behaviour online, especially through the Criminal Law (Codification and Reform) Act.

Internet regulation has been characterised by different forms of ‘regulation’ that seemingly point at limiting freedom of expression. This includes restrictions on connectivity as was noted on a large scale during the 2019 Internet shutdown in Zimbabwe, intimidation and violence, censorship and surveillance, among others.

It is reported that the Minister of Information, Publicity and Broadcasting Services, Senator Monica  Mutsvangwa, was recently asked in parliament what the government is doing to ensure and enforce cybersecurity and also punishing internet abusers.

The minister reportedly responded by saying the government is aware of the havoc which is caused by fake news on social media among families, communities and countries.

In that regard, the government is crafting a Cyber Bill which would soon be enacted to make sure that those who get on social media will be accountable and can be followed for what they would have written on social media and be dealt with if it is causing havoc and disharmony among the people.

It is MISA Zimbabwe’s position that the terms internet or social media abuse are very vague terms hence if any intention is expressed to punish conduct online, it would be important to specify that conduct.

This does not take away the need for responsible behaviour online, but neither does it mean every conversation or communication should be an offence or punishable at law.

The Internet space is, however, peculiar because the information is shared easily and quickly and has enabled other forms of expression like what is now known as digital activism or online movements.

In Zimbabwe, such notable movements have been the #ThisFlagMovement and also the #TajamukaMovement, which were aimed at advocating for the promotion of human rights and demanding improved access to basic needs.

Be that as it may be, regulation of the internet should not be centred on the tool, but rather on behaviours that can be justifiably identified as wrongs.

The first arrest based on social media communication was that of Vikazi Mavhudzi, who was charged with allegedly attempting to subvert a constitutionally elected government in 2011, although the case was dismissed for lack of evidence.

Since then, a trend of several arrests has been noted based on online communication, including that of  Pastor Evan Mawarire, and more recently, that of freelance journalist Hopewell Chin’ono.

There seems to be a pattern of arrests in Zimbabwe which have promoted self-censorship and fear among citizens to freely express themselves, especially online. If anything, this trend is pointing more towards abuse of the legislative process and the criminal justice system.

For instance, following the #ZimbabweanLivesMatter campaign, an online campaign that was aimed at advocating against human rights violations in Zimbabwe, there was a proposition for the drafting of a Patriotic Bill, to criminalise ‘campaigning against one’s own country’.

MISA Zimbabwe position

MISA Zimbabwe’s key position is that any form of regulation of the Internet should be aimed at creating safe online spaces for the exercise of rights.  More so, safe spaces for women and children who have largely been victims of online violence instead of being centred on the criminalisation of online communication under the guise of internet abuse.

The Cybersecurity and Data Protection Bill which was gazetted in May 2020, should therefore not be couched from the perspective of dealing with internet abusers.

The preamble of the Bill states that it is an Act to provide for data protection with due regard to the Declaration of Rights in the Constitution, public and national interest,  and to establish a Cybersecurity and Data Protection Authority, and to provide for their functions.

That human rights centred approach is what should shape legislation in Zimbabwe.

Likewise, it is critical to also highlight that cybersecurity does not mean, and neither is it restricted to national security,  although a culture of cybersecurity will create safe online spaces, promote digital rights and also promote national security.

It is notable that the gazetted Bill provided for offences like sending threatening data messages, cyberbullying and harassment, the transmission of false data messages intending to cause harm, the transmission of intimate images without consent, and child pornography, among others.

However, MISA Zimbabwe stands by its earlier position as noted in its commentary on the Bill.  The provisions should not be wide and vague, particularly the provisions on cyberbullying and harassment, false information, the transmission of data messages inciting violence or damage to property.

These provisions were relied on to infringe on free expression through the now-repealed Access to Information and Protection of Privacy Act, and also through the existing Criminal Law (Codification and Reform) Act.

Pertaining to false information, it is not disputed that the spread of false information has been prevalent, more so during COVID-19.  The World Health Organisation has also noted what is termed as an ‘infodemic’ as being an overabundance of information, which has resulted in the prevalence of misinformation.

Of note, is that there already exists a constitutional court order, in the case of  Chimakure and 2 others v Attorney General,  where the court noted that false news offences are unconstitutional as they infringe on freedom of expression and promote self-censorship.

The current framing of the provision in the Cyber bill is equally wide and vague, and will potentially resuscitate criminal defamation and promote self-censorship, which was similarly outlawed in the case of Madanhire and Another versus the Attorney General.

It should be noted that where false information has been spread, it is either misinformation or disinformation. Misinformation differs from disinformation in that disinformation is aimed at deliberately misleading, while misinformation can be through the genuine belief that the information is true.

The law should clearly distinguish the two and provide for possible defences which can include lack of knowledge of falsity.

Further, there are several ways of curbing the spread of false news that the government can implement which includes an open-door policy to providing substantive and accurate information. The government can also invest in innovative tools for fact-checking and information verification while also raising awareness and capacitating the public on the use of such tools.

This limits the risk of the overregulation of the internet space.

Above all, the golden rule is that any limitation of rights should be lawful, proportionate and necessary in a democratic society based on openness, justice, human dignity, equality and freedom.

About MISA

The Media Institute of Southern Africa (MISA) was founded in 1996. Its work focuses on promoting, and advocating for, the unhindered enjoyment of freedom of expression, access to information and a free, independent, diverse and pluralistic media.

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