ICTA, Annoyance & The Constitution
Qs & As
“There is no way in which a citizen can challenge a law voted by Parliament…
… without a referral by a court of law in the course of proceedings. This is definitely a weakness in our constitution”
‘The element of annoyance, which is couched in vague terms, that is without any definition or precision, is still there in the new provision of ICTA’
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By LEX
Following a ruling given by the Supreme Court in the case Seegum J v The State of Mauritius in relation to the offence of using an information and communication service for the purpose of causing annoyance, Lex clarifies certain points about the issue of ‘annoyance’ caused by posts on social media, and about challenging laws made by the National Assembly.
* Justices D. Chan Kan Cheong and K.D. Gunesh-Balaghee have ruled in the matter Seegum J v The State of Mauritius that Section 46(h)(ii) of the Information and Communication Technologies Act (as it stood at the time of the offences, that is in 2012), in relation to the offence of using an information and communication service for the purpose of causing annoyance, for which Vinod Seegum was prosecuted, “must be struck down as unconstitutional.” In essence what is the core finding of this ruling besides the test of constitutionality?
The court decided nothing else except the constitutionality of section 46(h)(ii) of the ICTA by holding that it was a vague provision that did not drive home to an accused the constituent elements of the offence.
* Is this ruling important in light of the recent consultation exercise of ICTA and its earlier proposals to tackle social media abuse?
The consultation was about how to monitor social media so as to prevent the spread of messages of a spurious nature. Had the ruling dealt with the freedom of information aspect, it might have been relevant.
* Will it however have an impact in any way on cases relating to offences that may today fall under the amended version of the law, with particular reference to the redrafted section 46(h)(ii) of the ICTA, as amended by Act No.14 of 2018?
The element of annoyance, which is couched in vague terms, that is without any definition or precision, is still there in the new provision of ICTA. If cases are prosecuted under the amended version, the issue of constitutionality may still be raised.
* What could have been the reasoning behind the amendment of the earlier version of section 46 of ICTA, which made it an offence for “using an information and communication service for the purpose of causing annoyance” to read thereafter “… which is likely to cause annoyance…”?
The word ‘likely’ connotes the idea that something might happen or probable but which may not happen. Whereas the words ‘for the purpose’ connote the idea of intentionally wanting to do something.
When we say somebody is sending a message for the purpose of causing annoyance, it means he wants to achieve that result and that must be proved by the prosecution.
When we say that somebody is sending a message that is likely to cause annoyance, it would suffice to prove he sent it and leave it to the court to deduct from the evidence that the message was likely to cause annoyance.
It would appear that in a prosecution against a person by averring that he sent a message that was likely to cause annoyance (though annoyance has not been caused), proof of the offence is more easily done.
* Justices Chan Kan Cheong and Gunesh-Balaghee state in their ruling with reference to the earlier version of section 46(h)(ii) of the ICTA that “in Mauritius, a single message sent for the purpose of causing annoyance is caught by section 46(h)(ii), even if the content of the message is true, while in the UK, the offence is only committed where the offender knows that the message is false or persistently makes use of a public electronic network… In India, the offence is committed where the message is false and is sent persistently.” Does the same risk exist with the amended version of the law?
The judges are right. Any message, true or false, are caught by section 46(h)(ii). That would be so under the law as amended.
* What if a person were to circulate on social media what could amount to a news-breaking story relating to the arrest of a VVIP in a drug busting or prostitution sting operation by the police, which ultimately turns out to be false? Would that contain the elements likely to cause annoyance and would therefore amount to an arrestable offence?
Of course, especially if the message turns out to be false. In such a case the person who is targeted may also resort to court by suing for defamation. Unless the author pleads good faith.
* Does the offence of “causing annoyance” (which is not defined in the ICTA) and defamation carry the same weight in the eyes of the law, or is annoyance the first step to defaming an individual/institution?
In a number of cases it has been held that in determining whether words have a defamatory meaning or not “…what does matter is what the adjudicator at the trial thinks is the one and only meaning that the readers as reasonable men should have collectively understood the words to mean.”
A British judge laid down the test as follows: “…whether the words would tend to lower the plaintiff in the estimation of right-thinking members of society generally”. In a defamation case, the plaintiff must establish a « faute ». But once this is done, it is for the defendant who sets up good faith as a defence — to prove that he was acting in good faith.
If a person feels offended by a message posted on social media and feels defamed by it, he can still sue for defamation.
* We note that lots of cases are brought before the Supreme Court to seek its guidance or to test the constitutionality of some particular law. Could it be said that our Constitution, and in particular its principles, drafted and adopted a little more than 50 years ago, are still relevant in essence in today’s society?
There are a number of matters that need to be reviewed in the constitution. But this is another debate. Suffice it to say that the provision of the constitution that permits a citizen to challenge a law can only be invoked as a result of proceedings before a court.
Section 84 (1) of the constitution provides: “(1) Where any question as to the interpretation of this Constitution arises in any court of law established for Mauritius (other than the Court of Appeal, the Supreme Court or a court martial) and the court is of opinion that the question involves a substantial question of law, the court shall refer the question to the Supreme Court.”
It should be noticed that there is no way in which a citizen can challenge a law voted by Parliament without a referral by a court of law in the course of proceedings. This is definitely a weakness in our constitution because until a law is challenged it remains on the statute book and may be used.
* Published in print edition on 1 June 2021
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