“By what yardstick will the undesirability of the contents of an online publication be judged? Who will be the judge of that?”
Qs & As
* ‘The Bill makes provision to punish these offences. To that extent nothing sinister or controversial should be read in the Bill’
By LEX
The Cybersecurity and Cybercrime Bill is going through Parliament these days. It is backed by the Budapest Convention for EU countries to which Mauritius has subscribed voluntarily. While the aims are laudable in confronting novel forms of misuse of social media towards a variety of criminal ends, there is mistrust that has been generated by government actions to justify legislators having a closer look at provisions that may restrict normal freedom of speech and opinion or place an unreasonable onus on online administrators. Lex weighs in.
* Parliamentary debates will begin today on the Cybersecurity and Cybercrime Bill, the object of which is to repeal the Computer Misuse and Cybercrime Act. What’s the reasoning behind this initiative of the Ministry of Information Technology, Communication and Innovation?
The reasoning is to be found in the Explanatory Memorandum to the Bill which reads: “The object of this Bill is to repeal the Computer Misuse and Cybercrime Act and replace it by a new Act to provide for – (a) increased compliance with the Budapest Convention on Cybercrime through the provision of additional criminal offences related to cybercrime and cybersecurity, improved investigation techniques and increased international cooperation.”
* Critics have focused on what they consider to be a disguised attempt by the government to go round the resistance that came up earlier this year following the circulation of the ‘Consultation Paper on proposed amendments to the ICT Act’. Are there already provisions in The Information and Communication Technologies Act 2001 for punishing people who make an abuse of information and communication technologies?
The present law contains a number of offences namely, unauthorised access to computer data and access to and interception of computer service as well as unauthorised modification of computer material. There is also the offence of damaging or denying access to computer system and unauthorised disclosure of password. Other offences are electronic fraud and unlawful possession of devices and data and unauthorised modification of computer data. Additional offences appear in the new law like computer-related forgery, cyberbullying, cyber extortion, revenge pornography, cyberterrorism, infringement of copyright and related right; failure to moderate undesirable content.
* It’s a fact however that cybercrime keeps evolving, and is becoming more complex with advances in technology. This new Bill will provide the means and the legal framework to deal with “additional criminal offences related to cybercrime and cybersecurity, improved investigation techniques and increased international cooperation”. Isn’t that reasonable enough?
Indeed. What are we witnessing today? Criminals use technological means to commit a number of high-profile offences. In addition, we have individuals who make an improper use of technology to abuse or threaten people. Any responsible government should react to this kind of issue. Since crimes are committed transnationally, international assistance becomes imperative in the fight against organized crime and other offences.
* Such offences like misuse of fake profile, cyberbullying, cyber extortion, revenge pornography, which can potentially cause tremendous harm to unsuspecting individuals have to be tackled. Doesn’t this Bill provide the remedy/ies to such social ills?
The Bill makes provision to punish these offences. To that extent nothing sinister or controversial should be read in the Bill. Only those with a hidden agenda and whose wings will be clipped by the new law will shout the loudest and create a mayhem.
* There is also the issue of cyberterrorism as well as offences involving ‘critical information infrastructure’ which could result in “the interruption of a life sustaining service such as the supply of water, health services and energy; an important effect on the economy” and in “massive casualties or fatalities”; or the “failure or substantial disruption of the money market”. Cyberspace must not be allowed to become the playground for terrorists, isn’t it?
Of course not. But criminals will not hesitate to use any method to carry out their illegal transaction.
* However, Section 23 of the new Bill may be construed as a threat to freedom of expression, since it becomes the responsibility of the administrator of an online account to moderate undesirable (online) content that “threatens, abuses or misleads the public; threatens public health or public safety” as well as “national security or promotes racism”. In the first instance, it’s newspapers that run the risk of falling foul of the law. What’s your take on that?
This is a controversial provision. It places a heavy responsibility on the administrator of an online account. By what yardstick will the undesirability of the contents of an online publication be judged? Who will be the judge of that? On the face of it, this provision appears to be in the nature of pre- censorship which is abhorrent to the principle of freedom of expression.
* Newspaper editors ‘moderate’ what goes in print, and they can be sued for libel or other offences. Shouldn’t the same logic apply in the case of online administrators should they commit the same offence?
Whether a publication is in print or online the publisher is amenable to the same law of the land. There is not a law for online publication and another law for publication in print.
* However, who decides and on the basis of what criteria will online content be judged as containing threats to public safety, national security or likely to promote racism? Could that open the door to abuse by whichever authority will have the responsibility of oversight?
Under the Bill undesirable content includes any online content that is deceptive or inaccurate, posted with intent to defame, threaten, abuse or mislead the public; threatens public health or public safety; threatens national security; or promotes racism.
Since this is a criminal offence, the investigation will be in the hands of the police, and it will be for the DPP to decide whether to prosecute or not.
* To come back to the issue of freedom of speech, what’s the principle behind this concept?
The right of freedom of speech and expression means that every citizen of a country has the right to express his views, opinions, belief, and convictions freely by word of mouth, in writing or in, print or through any other methods provided he does so in full respect of existing defamation laws or those dealing with threats. This right is protected by section 12 of our Constitution.
* Are there or can there be limits to freedom of expression?
Freedom of expression is a fundamental right. It is not an absolute right like the right to life. It can be derogated from.
The Constitution states that the right can be derogated from in the interests of defence, public safety, public order, public morality or public health; (b) for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, or regulating the technical administration or the technical operation of telephony, telegraphy, posts, wireless broadcasting, television, public exhibitions or public entertainments; or (c) for the imposition of restrictions upon public officers.
But the derogations must be reasonably justifiable in a democratic society.
* In the eventuality that the Bill is voted, is there scope to challenge it on the ground of constitutionality?
As the Bill stands, it will be difficult to challenge most of its provisions. It should be remembered that the Bill copies almost faithfully the provisions of the Budapest Convention on Cybercrime. That Convention is the first international treaty on cybercrime and has been drafted by the Council of Europe. The Council takes into account the provisions of the European Convention on Human Rights. Though it is a European Treaty, a non-European country can ratify it, and this is what Mauritius has done.
* It might surprise the critics of the Bill that most social media users and the public generally might agree on the principle in favour for some form of oversight over social media content, as several jurisdictions have put in place. Is the absence of any form of oversight an option?
Though internet has been a boon in modern society, at the same time many make an improper use of internet platforms. Oversight becomes a must as a reaction to illegal and immoral conduct. In today’s world, an absence of oversight would be catastrophic.
* Most of the jurisdictions which have implemented or envisaging to address the issue of abuse and misuse of social media have promulgated laws to make social media companies to take more responsibility for the safety of their users and tackle harm by content. It could be that it’s the current atmosphere of trust deficit in the Government that’s coming in the way of an otherwise necessary piece of legislation?
No. The government is only implementing its obligation under the Budapest Convention which, amongst others, is the necessity to deter action directed against the confidentiality, integrity and availability of computer systems, networks and computer data as well as the misuse of such systems, networks and data by providing for the criminalisation of such conduct, as described in this Convention, and the adoption of powers sufficient for effectively combating such criminal offences, by facilitating their detection, investigation and prosecution at both the domestic and international levels and by providing arrangements for fast and reliable international co-operation, as it appears in the Preamble to the Convention.
* Published in print edition on 9 November 2021
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