New Tax on Online Services A Threat to Internet Freedom in Mauritius

By Thomas Robertson |

Under the premise of Covid-19 austerity measures, the government of Mauritius passed a new tax on digital services in August 2020. The “Liability to Value Added Tax on Digital and Electronic Services” is one of the several amendments to the Value Added Tax (VAT) Act introduced in the July 2020 Finance Bill.

The Act defines “digital or electronic service” as any service supplied by “a foreign supplier over the internet or an electronic network which is reliant on the internet; or by a foreign supplier and is dependent on information technology for its supply.”

The penalties for failure to comply with VAT that are outlined in the original VAT Act (which are unchanged in the amendment that extended the tax to digital services) include a fine of up to 50,000 rupees (USD 1,255) or imprisonment of up to five years.

The digital VAT introduction is the latest in Mauritius’ move towards internet regulation that has already manifested in restrictions to freedom of expression through the Information and Communication Technology (ICT) Act and application of expanded surveillance technologies in tourist areas.

The Bumpy Legal Road to Mauritius’ Blossoming ICT Sector

 Mauritius’ economic success and a strong culture of democracy have allowed for the development of an emerging ICT sector. In 2019, the ICT sector contributed up to 5.8% to the country’s Gross Domestic Product (GDP) amounting to over 800 million US dollars. This is not surprising given that Mauritius has set out to be the world’s first Cyber Island and has fulfilled that goal by establishing Africa’s first Cybercity. Additionally, a conducive legal framework is in place, including laws on cybercrime, data protection, and ICT usage regulation and democratisation. Mauritius is also implementing a 2018-2022 Digital Government Strategy that aims to integrate technology into government operations and service delivery.

Nonetheless, there has been a series of regressive developments to which the online services tax now contributes. In 2018, a contentious amendment to the ICT Act was passed, which criminalised content perceived to cause “annoyance, humiliation, inconvenience, distress or anxiety to any person,” and established penalties of up to 10 years in prison. However, even before the amendment of the ICT Act, two internet users were arrested in 2016 following a complaint filed by a member of the Mauritian cabinet regarding their Facebook posts. One of the two users arrested in 2016, Farihah Ruhomaully, was arrested again in July 2020 after she called a Member of Parliament a “dirtbag” on Facebook. Both of these arrests were justified as responding to breaches of the ICT Act, indicating that the Act is enforced not just to prevent cybercrime, but also to crack down on dissent.

The ICT Act has also been used to criminalise the dissemination of false news as demonstrated by the arrest of a former government minister on allegations of spreading false information regarding the purchase of Covid-19 medical equipment. Meanwhile, there are reports of the involvement of the Mauritian government in the blockage of social media accounts of critics on grounds of national security.

In addition, the Mauritian government is one of several across Africa to institute a widespread surveillance apparatus. The Safe City project funded by Huawei will install a system of hundreds of closed circuit television (CCTV) cameras in the Port-Louis area purportedly intended to fight crime. This is troubling given Huawei’s reported collaboration with state police forces in Uganda and Zambia to target the political opposition.

Looking Beyond the Tax Act’s Impacts on Internet Affordability and Free Speech

Mauritius boasts relatively high internet access rates compared to much of sub-Saharan Africa – 59% internet penetration as of 2018, according to the World Bank and the International Telecommunication Union. The country is also ranked favourably in internet affordability by the Alliance for Affordable Internet (A4AI) Affordability Report: 13th out of 61 countries assessed worldwide and first in Africa.

Without a list of the range of digital services under the scope of the new VAT provisions, it is unclear which services will be affected, though Netflix and Google Drive are among the services speculated to be taxed. At 15% of the value of “digital or electronic services”, the levy will likely increase the price of affected services – putting them out of reach for many Mauritians. Indeed, similar VAT modifications on online services in Mexico and Chile demonstrate the effects of the increased tax burden on consumers.

With a strong history of democracy and rule of law, legislative constraints that stifle free speech online and expand surveillance show regression into authoritarianism. The introduction of VAT on online services resembles the likes of the Ugandan government’s social media tax and the Zambian government’s  tax on internet voice calls. The timing of the tax also seems peculiar given that many Mauritians are relying on digital services during the Covid-19 pandemic. Furthermore, digital platforms have recently been utilised to mobilise opposition against the Mauritian government’s response to the Wakashio oil spill, resulting in over 50,000 citizens participating in an anti-government protest in August 2020.


Thomas Roberston is a 2020 CIPESA Fellow focussing on digital expression and China-Africa relations.

Regulating Freedom of Expression Amidst the Covid-19 Response in South Africa

By Tusi Fokane |

The global infodemic accelerated in part by the Covid-19 pandemic has raised important debates on how best to respond to the proliferation of false and misleading information online. The Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression addressed the critical issue of misinformation, noting that some actions undertaken by various governments to contain the spread of the coronavirus may fail to meet the test of legality, necessity and proportionality. The report cautioned against the introduction of vague and overly-broad laws to combat misinformation, proposing instead that governments provide reliable information to citizens.

Six months after a National State of Disaster was declared in South Africa, the government on September 16, 2020 eased the lockdown, removing “as many of the remaining restrictions on economic and social activity as it is reasonably safe to do.” One notable restriction still in place  is the criminalisation of the publication of “any statement through any medium including social media, with the intent to deceive,” pursuant to Regulation 11(5), under the Disaster Management Act, which was issued in March 2020. The offense is punishable with an unspecified fine, imprisonment of up to six months, or both.

The regulations were followed by directives from the Minister of Communications and Digital Technologies compelling communications service providers to “remove Covid-19 related fake news from their platforms immediately after it is identified as such”. Within days of its passing, several individuals were arrested for spreading false information about Covid-19. In one case relating to a Covid-19 interview, the Broadcasting Complaints Commission of South Africa fined two broadcasters South African Rand 10,000 (USD 660).

Whilst various activists initially raised their voices in support of   governments’ efforts to halt the spread of the disease, they also cautioned against overly restrictive conditions that limit human rights including  freedom of expression, access to information and public accountability.

Civil Society Reactions to the Regulations on “Fake News”

The debate about the impact of South Africa’s Covid-19 regulations on  free speech came into focus when a leading academic and member of the Covid-19 Ministerial Advisory Committee, Professor Glenda Gray made public comments about the effectiveness of the lockdown restrictions. The Minister of Health declared the academic’s views false and misleading. This prompted leading academics to conclude that “the government has repeatedly stressed that its primary goal in managing the pandemic is to save lives. But it needn’t kill speech to save lives.”

In April 2020, the Right2Know Campaign (R2K) wrote to the National Coronavirus Command Council regarding the “fake news” provisions of lockdown regulations. Whilst noting the potentially deleterious effects of false information, R2K made  proposals to amend the regulations to ensure the protection of the right to freedom of expression. Among the amendments proposed by R2K was the definition of “fake news”  to be clarified as the “dissemination of false information with the intention to deceive…”

Further, R2K noted that the “criminalisation of speech inevitably has a chilling effect on the right to freedom of expression.” It proposed administrative penalties, rather than criminal sanctions, for disseminating false information. Another key proposal was that the government should make provision for relevant defences that an offender could rely on when faced with a charge of spreading false information.

Other critics, such as the Free Market Foundation (FMF), rejected the fake news regulations outright, calling on the government to rely on existing common law and constitutional provisions rather than attempting to regulate expression through the introduction of additional regulations. The FMF argued that, “there is simply too much information circulating in society for any centralised body to be entrusted with deciding its accuracy. Instead, we must rely on the decentralised gatekeeping network known as ‘the market’ to assist us in judging what is true and what is false.”

Meanwhile, Media Monitoring Africa (MMA) stated in a statement in March that the regulations were narrowly defined, and proposed a high standard on the state to prove “intention to deceive.” The group  said the real challenge would be the government’s ability to implement and enforce the fake news regulations.

None of these proposals were taken into account and the current regulations remain in force under the extension of the state of national disaster, imposing undue restrictions on the right to freedom of expression.

Enforcement of the “Fake News” Regulations

As part of measures to enforce the regulations, the government established a multi-stakeholder monitoring and evaluation platform and Digital Complaints Committee to monitor and respond to misinformation and fake news related to Covid-19.  Then Acting Communications and Digital Technologies Minister, Jackson Mthembu, stated that the platform aims to assess misinformation complaints, take down fake news items, and submit cases to the police for investigation and prosecution.

According to MMA Director, William Bird, the task of combating fake news should not be left to government and platform providers. Since 2019, MMA has maintained Real411, an independent digital platform for reporting suspected misinformations. Thandi Smith, MMA’s Head of Programmes, explains that complaints are assessed by a team of three voluntary reviewers with legal, technology, and media expertise. The reviewers then make a recommendation to a five-member secretariat based on a set of assessment criteria.

Upon completion of an investigation, the secretariat recommends a range of actions which may include issuing a take-down notice, fact-checking verification, and publishing a counter-narrative infographic. Bird said the secretariat reports hate speech cases to the South African Human Rights Commission for further action. Extreme cases of misinformation would be reported to the South African police, but to-date no complaints warranting police investigation have been received. Complaints about the media and editorial content are referred to the relevant regulatory authority. Smith noted that there is an appeal process headed up by a retired Constitutional Court judge.

 Assessing the Effectiveness of Criminalising Misinformation

It may be difficult to assess the effectiveness of fake news regulations on Covid-19 given the rapid spread of information in the digital environment. This raises philosophical and policy issues on whether free expression online should even be regulated at all, and by whom.

Indeed, Ghalib Galant, Deputy National Coordinator & Head of Advocacy for the R2K Campaign, maintains that the challenge with South Africa’s Covid-19 misinformation regulatory framework is that government’s response was to criminalise behaviour rather than focusing on educating and supporting South Africans to understand the impact of the pandemic. As he puts it, “Government policed people, rather than healing a health pandemic.”

Galant suggested that administrative penalties may be a better deterrent than criminal sanctions. This would ensure the protection of the right to freedom of expression whilst the country debates whether or not new rules are needed for regulating false information, or a “re-imagining of section 16 of the Constitution.” Galant suggests that perhaps this could be within the purview of a statutory institution such as the Information Regulator.

Section 16(1) of South Africa’s Constitution states that “Everyone has the right to freedom of expression, which includes freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research.” Section 16(2) restricts speech related “to propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”

The head of legal, policy and research at the FMF, Martin van Staden, said fake news regulations have not been effective as they are difficult to enforce. From his perspective, any prohibition on freedom of expression beyond Section 16(2) Constitutional limitations would amount to censorship. He stated: “The Constitution is unequivocal about the scope of the right to freedom of expression, and it does not include a provision that only ‘factual’ expression is allowed. This means that misinformation is constitutionally protected expression in South Africa, and must be left alone.”

He recommends that the government should instead provide accurate and reliable information, and develop a strong counter-narrative strategy, which would enable South African citizens to reach their own conclusions on the veracity of any information they receive.

Van Staden cautioned against the state’s “paternalism” and future attempts to introduce legislation aimed at ensuring the truthfulness of information that is disseminated. “The right to freedom of expression is meant to protect the uncomfortable, the unpopular, and the offensive,” he said.

Threats to Freedom of Expression Beyond Covid-19 Regulations

There is uncertainty on whether the National State of Disaster will be extended again beyond December 15, 2020, given concerns of a second wave of Covid-19 infections in the country. Freedom of expression experts have warned that whilst fake news may be decriminalised by a declaration of the end of the State of Disaster,  the government may attempt to use impending legislation to further regulate free speech online.

For example, in July 2020, the Minister of Communications and Digital Technologies released a call for comments on the gazetted draft Film and Publications amendment regulations, (commonly known as the internet censorship bill), which introduces a requirement for pre-classification of online content with the Film and Publications Board.

Another key piece of legislation in the pipeline is the Prevention and Combating of Hate Crimes and Hate Speech Bill, which lapsed and is currently on hold, pending judgment on the Qwelane hate speech Constitutional Court challenge which was heard on  September 22, 2020.

Qwelane contends that the prohibited grounds listed in section 10(1) of the Promotion of Equality and Protection of Unfair Discrimination Act (Equality Act) are overly broad, go far beyond the limitations set out in section 16(2) of the Constitution, and unjustifiably limit the right to freedom of expression.

The outcome of the Qwelane case will be important in clarifying the limitations on free speech for South Africans given ongoing debates on the regulation of freedom of expression both online and offline. This is particularly important in setting clear parameters for free speech and false and misleading information in South Africa. This will assist in ensuring that unprotected speech is very narrowly defined and does not unjustifiably limit the Constitutional right to freedom of expression.


Tusi Fokane is a 2020 CIPESA Fellow focussing on the the availability and use of digital technologies to combat the spread of Covid-19 in South Africa. She is also  studying the country’s readiness for electronic voting to comply with social distancing and other movement restrictions during the upcoming local government elections.

Civil Society Groups Denounce the European Union’s Involvement in Surveillance in Africa

Open Letter |

The increasing involvement of foreign entities in undermining democracy and respect for human rights in the digital sphere in Africa is widely documented. Whereas these schemes have mostly been attributed to spyware vendors and data analytics firms, recent disclosures have implicated the European Union (EU).

Investigations by Privacy International have revealed the use of EU aid and cooperation programmes to train and equip security forces in Africa with surveillance techniques. The disclosures reveal that the European Union Agency for Law Enforcement Training (CEPOL) has trained police and security agencies in Algeria, Morocco and Tunisia in phone and internet surveillance, including social media monitoring, telecommunications metadata analysis, device investigations and data extraction. According to Privacy International, whereas cybersecurity, terrorism and violent extremism are threats in the countries that CEPOL is supporting, “the absence of effective privacy and security safeguards and in contexts where security agencies arbitrarily target activists, journalists and others, surveillance techniques and tools pose a serious threat to people’s rights and their work.”

In Algeria, Egypt, Niger, Libya, Morocco, and Tunisia, EU bodies are reportedly training and equipping border and migration authorities with surveillance tools, including wiretapping systems and other phone surveillance tools, in a bid to “outsource” the EU’s border controls. Further, support for the development of biometric identity systems in Cote d’Ivoire, Mali and Senegal with EU aid funds is raising serious privacy concerns.

In response to the revelations, Privacy International, the Collaboration on International ICT Policy for East and Southern Africa (CIPESA), together with 12 civil society organisations from Europe and Africa have submitted a letter to the European Commission calling for urgent reforms to EU aid and cooperation programmes to ensure they promote privacy protections in non-member countries and do not facilitate the use of surveillance which violates fundamental rights.

In the letter, the civil society organisations call on the European Commission to enact strict due diligence and risk assessment procedures, and to agree to transparency, parliamentary scrutiny and public oversight measures aimed at protecting human rights in non-member countries.

A copy of the letter is available here.

Three Days of Digital Rights: Here’s What’s Happening on Day One of FIFAfrica20!

FIFAfrica20 |

Not yet registered? Click here to gain an all-access pass into the Forum on Internet Freedom in Africa 2020

Day 1: Monday, 28 September 2020 

The Forum on Internet Freedom in Africa 2020 (FIFAfrica20) kicks off on Monday, 28 September 2020 which is also the International Day for Universal Access To Information (IDUAI). An opening panel of key actors in Africa’s digital landscape will explore the digital opportunities amidst the ongoing Covid-19 pandemic and implications on digital rights. The opening panel lineup includes Simon Allison, who in the midst of Covid-19 launched the Award-winning weekly publication The Continent, which introduced a unique disruption to journalism through its use of Whatsapp as a distribution platform.

Techprenuer and founder of the global enterprise application solutions provider AppsTech, Rebecca Enonchong will also share insights on some of the interesting digital shifts in Africa that have emerged in the wake of Covid-19. She will also reflect on the prevailing technology landscape and where we could potentially be heading as a continent.

#FIFAfrica20 Goodybag: As part of the Forum, we look forward to sharing the spirit of internet freedom in Africa. We have a few goody bags for standard attendees of the Forum!  So go ahead and share your vision for internet freedom in Africa (#InternetFreedomAfrica) and what stands out for you at #FIFAfrica. See what some of our friends have done Prudence Nyamishana, Nashilongo Gervasius, and Adéṣínà Ayẹni (Yoruba/English)
For more on the Forums including past events, visit: www.internetfreedom.africa

The African Freedom of Expression Exchange (AFEX) will host a session on data protection and privacy concerns in the fight against Covid-19  which will highlight some of the rushed Covid-19 related laws that emerged and their implications on freedom of expression, access to information and digital rights. The session will aim to make recommendations to civil society and other actors on how to advocate for the laws to be repealed or in some cases amended.
As strategic litigation continues to gain prominence as a tool for pushing back against regressive digital rights policy and practice in Africa, the Catalysts for Collaboration (C for C) have become a key resource for best practices and case studies on collaborating across disciplines in strategic litigation to advance digital rights. In 2017, the first version of the Catalysts for Collaboration was presented at FIFAfrica in Johanessburg, South Africa. Since then, the Catalysts have informed multiple training and learning sessions, including at FIFAfrica18 in Accra, Ghana and FIFAfrica19 in Addis Ababa, Ethiopia.

In response to numerous requests, the Catalysts have now been translated from English into French, Spanish and Russian, making them accessible to a wider audience. At FIFAfrica20, the new C for C website will be formally launched. Lawyers, activists and others involved in some of the case studies will briefly present some of their learnings in collaborative strategic litigation projects, followed by an interactive discussion.

As part of an ongoing project, the Center for Digital Resilience (CDR) is supporting civil society to crowdsource and understand disinformation within communities. In a session titled  What the world needs now is a way to crowdsource the fight against disinformation, the CDR will introduce the FIFAfrica20 audience to Waterbear – a suite of tools that makes it easy to gather, analyse, and access data needed to expose disinformation patterns. The session will also share relevant disinformation resources from global partners, such as a 101 toolkit for NGOs/CSOs, and a roadmap for the civil society sector’s efforts to detect and respond to online manipulation.

Meanwhile, the rapid expansion of digital technologies across the globe has profoundly transformed the way in which citizens engage with one another. Yet, beyond the attractive benefits of many of these new tools are hidden costs and broader implications for digital rights that must be considered. The adoption of certain technologies may impede digital rights, such as issues relating to data protection or built-in mechanisms that allow unethical surveillance of citizens. As new technologies continue to be introduced across Africa, it is crucial that governments and citizens alike closely examine the risks and digital rights considerations for all new technologies. The Center for International Private Enterprise (CIPE) will host a session titled Buyer Beware: Understanding Implications of Technology for Digital Rights that will examine the primary considerations and risks that citizens should be aware of when it comes to adopting new technologies; actions that governments should take to protect the data of their citizens; and how international norms and standards can help governments and technology companies ensure that new technologies are deployed in a way that respects digital rights.

Similarly, the  Global Network Initiative (GNI) will explore Trends in Content Regulation in Africa and Beyond based on a recent study conducted over a dozen governmental initiatives on Content Regulation & Human Rights.

Day one of the forum will also feature two skills-building sessions. Virtually, CIPESA, in partnership with CIPE and Data4Change will host a Data Skills Foundation Course which will introduce participants to a  4-step data workflow. Through practical exercises and interactive quizzes, students will learn how to source secondary data through online research, how to format data and perform basic calculations using Google spreadsheets and how to create a simple data visualization suitable for publication on social media. The course will conclude with an assignment for each participant to write and pitch an idea for a data-driven project at their organisation. Secondly, at a remote hub in Kinshasa, Democratic Republic of Congo, the Digital Security Group will be upskilling investigative journalists and human rights activists in risk assessment and digital security.

Lastly, look out for the daily Digital Security Hub, featuring multi-lingual (English, French and Arabic) tech security experts from across the continent, on hand to provide personal and organisation digital security support. You can find them in the exhibitor center or through the chat widget on the internetfreedom.africa website. The Digital Security Hub is a collaboration of DefendDefenders, Defenders Protection Initiative, Access Now, Greenhost, Digital Society of Africa, and the Digital Security Alliance.

 

The Forum on Internet Freedom in Africa 2020 (FIFAfrica20) is Open For Registration! 

FIFAfrica20 |
On September 28-30, 2020, the seventh edition of the annual Forum on Internet Freedom in Africa (FIFAfrica) will be co-hosted by the Collaboration on International ICT Policy for East and Southern Africa (CIPESA) and Paradigm Initiative (PIN).
FIFAfrica20 will be a hybrid event featuring online and offline engagements. In-country satellite events will be hosted in the Abidjan (Côte d’Ivoire), Kinshasa (Democratic Republic of Congo ), Dakar (Senegal) and Dar es Salaam (Tanzania).
We look forward to the lineup of speakers from a diversity of organisations across the world coming together to deliberate on issues such as misinformation, network disruptions, the impact of Covid-19 on digital rights (including on issues such as education, elections, access to information) through to online content moderation, strategic litigation, diversity and inclusivity online, consumer protection, artificial intelligence, and the continued concerns on data privacy.
As has been a constant, the Forum will also feature practical skills and knowledge for human rights defenders, media workers and policy makers on relevant topics. We will also host a digital security hub where participants can directly engage virtually with experts on their digital security concerns and questions.
Meanwhile, in support of digital rights advocacy and research communities of practice, we will host a Digital Rights Networks’ Convention aimed at showcasing and strengthening linkages between collaborative movements on digital rights in Africa.
Register for the Forum here