“ICTA is purely and simply sowing the germs of pre-censorship in the realm of social media”

Qs & As

Regulating Social Media

‘It is a hardly a secret how institutions filled with political nominees function. What criteria will the NDEC use to determine whether the content of a social media site is illegal or harmful’

The dust has not settled on the controversy raised by the amendments that the Information and Communication Technologies Authority is proposing to put forward to the Government, as contained in its Consultation Paper released for public circulation, with a view to regulating the use and addressing the abuse and misuse of social media in Mauritius. It’s not likely to settle any time soon in view of the intention of Opposition parties to challenge any such amendments before the Supreme Court. While most stakeholders are in favour of some form of regulation to address the abuse and misuse of social media, doubts have been expressed about the real motivation behind these proposals. Will they serve to control what gets circulated on social media and silence any opposition to the government?


* Though it’s a welcome and laudable initiative to have circulated its Consultation Paper on proposed amendments to the ICT Act, one cannot help wondering why the Government chose, through ICTA, to take this route rather than press ahead as it is wont to do to get the amendments voted by Parliament on the strength of the strength of its comfortable majority. What could be the reasoning behind the Government’s initiative?

Possibly the ICTA wants to show its good faith by giving the impression that it wants to engage in a dialogue with the public before suggesting any amendments. We know how much abuse has been made under the legislation with the arrest of individuals on mere complaints from members of government.

* Does it look like the proposed amendments in their current form, as proposed in the Consultation Paper, go against the provisions in relation to our democratic values and freedom of expression as enshrined in the Constitution of Mauritius?

Social media freedom is covered by the provision in relation to freedom of expression just like press freedom. Any fundamental right may be derogated from provided the derogations are justifiable in a democratic society.

The Information and Communication Technologies Authority (ICTA) regulates or curtails the harmful and illegal contents on the internet and other information and communication services.

* If we were to go by the values – ideological, philosophical, etc – of our judiciary, can it be anticipated what would likely be the position of our Judiciary on the proposed amendments to the ICT Act? What do past judgements of our Supreme Court inform us about the values it feels strongly about?

The Supreme Court has always struck down legislation that it considered incompatible with constitutional provisions. The Constitution is the supreme law of the land by virtue of section 2 of the Constitution which reads as follows: ‘This Constitution is the supreme law of Mauritius and if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency, be void.’

* Most social media users and the public generally might agree on the principle in favour of some form of oversight over social media content, as several jurisdictions cited as examples in the Consultation Paper are undertaking, but others are plainly against any form of oversight. Is that an option?

That social media should be regulated in order to prevent any abuse is necessary, even laudable – provided that the regulations comply with the Constitution.  There should not be any regulation that removes or severely restricts the right to freedom of expression

* With a view to “addressing the abuse and misuse of social media in Mauritius”, ICTA contends that “not only legal but also technical enforcement measures would be required”. Thus, its proposal to intervene upstream by first identifying “whether the online content is an illegal and harmful content” before taking the action to curtail such content. Sounds reasonable to the layman, but could that be construed as an usurpation, by an executive organ, of judicial power that can only be exercised by a court of justice?

By proposing to intervene before a message isreleased in order to determine whether it is illegal or harmful, the ICTA is purely and simply sowing the germs of pre-censorship in the realm of social media.

* The other contentions, which ICTA has put forward to justify its proposals concern the language barrier with offensive and abusive online content posted in Creole and which “remain unattended or are not addressed in a timely manner” by the social media administrators, the absence of regional offices of the same administrators on Mauritian soil. Most victims of abusive content and hate speech are likely to support the first justification. What’s your take on that?

Section 46 of the ICT Act makes it an offence to use an information and communication service, including telecommunication service to send, deliver or show a message which is grossly offensive or of an indecent, obscene or menacing character; or which is likely to cause or causes annoyance, humiliation, inconvenience, distress or anxiety to a person.

The law is there. What is required is to detect the culprits and punish them. But that section is being used to hunt down the political opponents of the regime.

* Most of the jurisdictions which have implemented measures or envisaging to address the issue of abuse and misuse of social media have, as mentioned in the Consultation Paper itself, promulgated laws to make social media companies “take more responsibility for the safety of their users and tackle harm by content” by removing such content within 24 or 36 hours of it being uploaded online, failing which substantial fines are imposed. It appears that few or none have gone as far as intervening upstream to address the issue of social abuse. Why is that so?

Given the widespread use of social media it may be difficult to address abuse in a rational and comprehensive manner.

When Facebook’s chief executive, Mark Zuckerberg, testified before the US Congress in 2018, the Senators expressed their skepticism that Facebook would be able to regulate itself. The Senators and threatened to enact privacy rules and other regulations.

The matter is very complex. Even if you have rules and regulations, there will always be hackers that will breach any rule or control.

* Could it be that these jurisdictions have the clout to make sure that the social media companies comply with their duty of care as promulgated in their respective domestic laws, which is clearly not the case here? It would appear that Facebook has not even responded to ICTA’s request for its comments to its proposed amendments to the relevant ICT law…

In spite of regulations there have been all kinds of abuses by private individuals, especially politicians. We witnessed this phenomenon during the election campaign of 2019.

Facebook and other social media platforms are in a chicken and egg situation. On the one hand, they feel that freedom of expression should have its way unhindered and they rely on the good sense of people. On the other hand, if social media platforms come up with many restrictions, they may see a drop in the use of their platforms. This will mean a drop in profits. Do not forget the colossal sums of money social media platforms generate in terms of commercials and other related matters.

* Given the current atmosphere of trust deficit in the Government, the National Digital Ethics Committee (NDEC) as the decision-making body on social media contents, and the selection of the Chairperson and members of the NDEC (deemed to be “independent, and persons of high calibre and good repute”) have, as expected, not gone down well since it is feared that political nominees might do the bidding of the political masters. Right?

I can do no better than to quote what Vinod Boolell wrote in l’Expresson 22 April when he said:
“The pressing and vital question to be addressed is how will the members of the NDEC be appointed? No doubt they will be political appointees. No doubt the law establishing the NDEC will spell out that the members should act independently. But it is a hardly a secret how institutions filled with political nominees function. What criteria will the NDEC use to determine whether the content of a social media site is illegal or harmful.”

To that, I may add another question: Will the NDEC take orders from Big Brother who will keep constant watch on not only social media platforms but also on the NDEC itself?

* The deadline for submission of comments on the Consultation Paper falls on 5 May 2021. What are the options available to concerned stakeholders if the Government goes ahead and votes the amendments? Would a judicial challenge be entertained by our Courts or would the principle of parliamentary supremacy prevail?

 There will be no option. The law will be voted by all the yes men on the government benches without their realizing what they are voting for. Little do they realise that there may be a boomerang effect.

Once the law is voted, it stays on the Statute Book until the Supreme Court gets an opportunity to determine whether it is constitutional or not.

* Published in print edition on 23 April 2021

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