Mauritius’ Social Media Regulation Proposal Centres State-Led Censorship

By Daniel Mwesigwa |

In Sub-Saharan Africa, Mauritius leads in many aspects. It is the only country on the continent categorised as a “full democracy” by the Economist Intelligence Unit Democracy Index for 2020. Additionally, it has the second highest per capita income (USD 11,099) and one of the highest internet penetration rates in the region (72.2%).

However, the recently published consultation paper on proposed amendments to the country’s Information and Communications Technology (ICT) law, purportedly aimed at curbing abuse and misuse of social media, could place Mauritius among the ranks of regressive states. The proposed establishment of a National Digital Ethics Committee (NDEC) to determine what content is problematic in addition to a Technical Enforcement Unit to oversee the technical enforcement of NDEC’s measures has potential surveillance and censorship implications.

The social media regulation proposals by Mauritius are made in light of increasing calls for accountability of technology platforms such as Google and Facebook by western countries. Indeed, the consultation paper cites Germany’s Network Enforcement Act (colloquially known as the Facebook Act), which requires social media platforms to remove “illegal content” from their platforms within 24 hours of notice by users and complaint bodies. Non-compliance penalties are large – with fines ranging between five  million and 50 million euros.

The paper states that, unlike in Germany and other countries like France, the United Kingdom, and Australia, complaints by Mauritian local authorities to social media platforms “remain unattended to or not addressed in a timely manner”. Moreover, it adds, cooperation under the auspices of domestic laws and regulations is only effective in countries where technology companies have local offices, which is not the case in Mauritius. As such, according to the Authority, “the only practical solution in the local context would be the implementation of a regulatory and operational framework which not only provides for a legal solution to the problem of harmful and illegal online content but also provides for the necessary technical enforcement measures required to handle this issue effectively in a fair, expeditious, autonomous and independent manner.”

However, the Authority’s claims of powerlessness appear unfounded. According to Facebook’s Transparency report, Mauritius made two requests for preservation of five user accounts pending receipt of formal legal processes in 2017. In 2019, Mauritius made one request to Facebook for preservation of two accounts. Similarly, the country has barely made any requests for content take down to Google, with only a total of 13 since 2009. The country has never made a user information or content takedown request to Twitter. In comparison, South Africa made two requests to Facebook for preservation of 14 user accounts in 2017 and 16 requests for preservation of 68 user accounts in 2019. To Google, South Africa has made a total of 33 requests for 130 items for removal since 2009 while to Twitter, it has made six legal demands between 2012 and 2020.

Broad and Ambiguous Definitions

According to section 18(m) of Mauritius’ Information and Communication Technologies Act (2001, amended multiple times including in 2020), the ICT Authority shall “take steps to regulate or curtail the harmful and illegal content on the Internet and other information and communication services”.

Although the consultation paper states that the Authority has previously fulfilled this mandate in the fight against child pornography,  it concedes that it has not fulfilled the part of curtailing illegal content as it is not currently vested with investigative powers under the Act. The consultation paper thus proposes to operationalise section 18(m) through an operational framework that empowers the Authority “to carry out investigations without the need to rely on the request for technical data from social media administrators.”

The amendments to the ICT Act will relate to defining a two-pronged operational framework with the setting up of: i) a National Digital Ethics Committee (NDEC) as the decision making body on illegal and harmful content; and ii) a Technical Enforcement Unit to enforce the technical measures as directed by the NDEC.

However, neither the existing Act nor the consultation paper define what constitutes “illegal content”. Whereas the consultation paper indicates that the Chairperson and members of NDEC would be “independent, and persons of high calibre and good repute” in order to ensure transparency and public confidence in its functions, the selection criteria and appointing Authority are not specified, nor are recourse mechanisms for fair hearing and appeals against the decisions of the proposed entity.

An Authoritarian Approach to Internet Architecture

Through a technical toolset (a proxy server), proposed under section 11, the regulator will be able to identify social media traffic which will then be automatically decrypted, archived, and analysed. For instance, the technical toolset would undermine HTTPS in order to inspect internet traffic. This means that information of all social media users pertaining to device specifics, content type, location, among others, would be available to the authorities. The regulator expects that once a complaint regarding social media is received, they will be able to block the implicated web page or profile without necessarily needing the intervention of social media platforms.

Additionally, the Authority expects social media users to accept installation of a one-time digital certificate on their internet-enabled devices to facilitate the re-encryption of traffic before it is transferred to the social networking sites. In other words, the Authority wants internet users in Mauritius to replace their own padlocks used for their home security with ones given to them by the Authority, which it has open and unfettered access to.

On the other hand, Mauritius’ commitments to freedom of expression, data protection and privacy potentially collide with these social media regulation proposals. In particular, Mauritius’ Data Protection Act (2017) requires informed consent of users, prohibits disproportionate collection of user data, and mandates fair and lawful processing of user data. The Data Protection Act was enacted to align with the European Union’s General Data Protection Regulation (GDPR). In March 2018,  Mauritius also ratified the African Union Convention on Cybersecurity and Personal Data Protection, although the Convention is yet to be enforced due to lack of quorum. Moreover, in September 2020, Mauritius signed and ratified the Council of Europe’s Convention for the Protection of individuals with regard to automatic processing of personal data.

Indeed, the Authority is aware of the potential infractions of the proposed technical measures on basic freedoms — stating in the paper that “the proposed statutory framework will undoubtedly interfere with the Mauritian people’s fundamental rights and liberties in particular their rights to privacy and confidentiality and freedom of expression”. Its seeking views and suggestions of “an alternative technical toolset of a less intrusive nature” may very well be an open solicitation for more surreptitious ways of monitoring social media data, with fundamental rights still at stake.

 Democracy and Local Investment

While Mauritius runs a multiparty system of government, its human rights record has been steadily deteriorating, according to the United States Department of State’s Human Rights Report 2020. Moreover, basic freedoms such as freedom of expression are being curtailed through digital taxation and clampdown on social media dissent. Recently, Twitter cited stability and democracy as the key reasons for the opening of its first Africa offices in Ghana. Although Mauritius is strategically placed as a regional and economic hub in Africa, and has been positioning itself as a “Cyber Island”, legal frameworks such as the proposed ICT law amendments and mixed rankings on democracy alongside high rankings on internet access and ease of doing business may likely undermine the country’s international competitiveness and internet freedom standing.

Accordingly, the Authority would do well to immediately discontinue these plans to employ technical measures to monitor social media and internet traffic as they would amount to multiple breaches of fundamental freedoms. The proposals also run counter to the Data Protection Act which prioritises minimisation of data collected and informed user consent. Moreover, the technical proposal would promote self-censorship and undermine the basic workings of the institutions of democracy.

Further, although social media regulation could be paved by good intentions such as the need to stamp out inflammatory content, it could be more beneficial to explore alternative options with a range of stakeholders to promote more fair and transparent content moderation practices in line with international human rights law. Mauritius has already proved that aligning domestic and international laws and practices is necessary by fashioning its data protection law along the lines of the GDPR. Additionally, Mauritius could leverage existing partnerships with other countries of regional economic blocs such as The Common Market for Eastern and Southern Africa (COMESA) to form a coalition of fact-checkers that have direct access to social media platforms.

Finally, the Authority could collaborate with technology platforms such as Facebook to support Creole language human moderators. This could be a necessary step to enhancing content moderation through automated decisions and more so for “low resource” groups of languages including Mauritian Creole.

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.

Apply To Participate in Disinformation and Human Rights Online Training Series

Call for Applications |
To allow for interactive discussion about specific cases and in-country contexts, we are limiting participant numbers to 20. Please see below for eligibility criteria and details about how to apply.Details:
This online training series is aimed at expert and non-expert members of civil society with an interest in tackling misinformation and disinformation using a rights-respecting approach.
The training series will consist of two interactive workshops to be held via Zoom on:
Thursday 5 November, 2-4pm EAT and Wednesday 11 November, 2-3pm EAT;
Wednesday 18 November 2-4pm EAT and Wednesday 25 November, 2-3pm EAT.
Participants will also be invited to participate in a one hour follow up call during December.
The series will be delivered by international, regional and local experts on disinformation and human rights and seeks to:

      1. Increase participants’ understanding of human rights issues relating to disinformation and misinformation.
      2. Increase participants’ understanding of policy and legal responses to disinformation in their region.
      3. Introduce participants to basic tools and methodologies to detect mis/disinformation
      4. Increase participants’ capacity to engage with representatives from government, business and journalism on disinformation and human rights (particularly the right to freedom of expression and the right to privacy) in policymaking processes and debates relating to disinformation and misinformation.

Please note that sessions will be delivered in English.
Eligibility criteria:
Applicants from the following countries are eligible to apply: Burundi, Comoros, Djibouti, Eritrea, Ethiopia, Ghana, Kenya, Liberia, Madagascar, Malawi, Mauritius, Nigeria, Rwanda, Seychelles, Sierra Leone Somalia, Somaliland, Tanzania, Uganda.
Applicants affiliated to NGOs, social enterprise companies and think tanks are eligible to apply. Media, academic and non-affiliated applicants will also be considered.
Applicants from governments and private companies (except social enterprises) are not eligible for this training series. 
Selection criteria:
Eligible applicants will be assessed by the quality of their motivation to participate in the training, as set out in answer to their application.
We particularly welcome applications from individuals and organisations that are interested in engaging in this policy area within the region and/or their countries in the longer term.

Coalition of Civil Society Groups Launches Tool to Track Responses to Disinformation in Sub Saharan Africa

Press Release |
Today, Global Partners Digital (GPD), ARTICLE 19, the Collaboration on International ICT Policy for East and Southern Africa (CIPESA), PROTEGE QV and  the Centre for Human Rights of the University of Pretoria jointly launched an interactive map to track and analyse disinformation laws, policies and patterns of enforcement across Sub-Saharan Africa.
The map offers a birds-eye view of trends in state responses to disinformation across the region, as well as in-depth analysis of the state of play in individual countries, using a bespoke framework to assess whether laws, policies and other state responses are human rights-respecting.
Developed against a backdrop of rapidly accelerating state action on COVID-19 related disinformation, the map is an open, iterative product. At the time of launch, it covers 31 countries (see below for the full list), with an aim to expand this in the coming months. All data, analysis and insight on the map has been generated by groups and actors based in Africa.

Countries currently covered by the map: Benin, Botswana, Burkina Faso, Cameroon, Côte d’Ivoire, Democratic Republic of the Congo, Eswatini, Ethiopia, Gambia, Ghana, Guinea, Kenya, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritius, Mozambique, Namibia, Niger, Rwanda, Senegal, Seychelles, Sierra Leone, South Africa, Tanzania, Togo, Uganda, Zambia and Zimbabwe.

For further details, contact [email protected]
Quotes from groups:
Commenting on the launch, Article19 said: “Disinformation constitutes a major threat to the freedom of expression and the right to access information and it is geared to mislead the population and influence their opinions and views. The fight against disinformation requires a multifaceted approach ranging from education, awareness raising, proactive disclosure of public interest information, fact checking; independent regulation and effective self-regulation by legacy media and social media platforms among others. With the COVID19 pandemic, it is more important than ever that collective efforts are made to curb the impact of disinformation on public health and the rights of the public to know.”
“National legislation and policies aimed at countering and responding to disinformation should always strike the right balance between the need to protect people against this practice and the respect of human rights especially freedom of expression. Such measures should not be used to interfere or block divergent opinions and dissident voices. We are pleased to have been part of this joint initiative that has enabled us to work together with sister organisations in and outside the continent to publish this disinformation tracker.
This tracker is a start-up that will usher in more in-depth work analysing laws and policies around the disinformation phenomenon in the region, engaging media and civil society in analysis-based advocacy geared towards governments and intermediaries to protect human rights—particularly freedom of expression—in their disinformation response, to ensure any restriction and penalty are always justifiable, proportionate and compliant with international standards.”
The Centre for Human Rights said: “Disinformation is a global phenomenon whose effects are felt across the political, economic and social spectrum. Efforts being undertaken to counter the scourge of disinformation should respect human rights, especially freedom of expression. In addition, a sustained approach is required and should involve different stakeholders employing  legal and other  internationally set standards. The tracker is an attempt to showcase the nature of state regulation of disinformation in sub-saharan Africa and provides a basis for tackling this scourge.”
CIPESA said: “Speculation, false and misleading information circulating online is a challenge, not only in Africa but across the world. Legislative means against misinformation often undermine free speech and media. The tracker is a great resource for activists, to drive evidence based advocacy, policy engagement and litigation.”
GPD said: “Governments around the world have been grappling with how to respond to disinformation—a challenge given new urgency by the COVID-19 crisis. However, many of their responses pose real risks for freedom of expression. We hope that this tracker will support groups in the Africa region working to promote approaches to the disinformation challenge that protect fundamental human rights.”
PROTEGE QV said: “It is the responsibility of states to protect the security of their citizens, in the online space just as in the offline. Among threats to security online, disinformation has particular prominence, and can carry severe consequences. In seeking to tackle it, governments should balance the need to maintain security by promoting accurate information to citizens with the attendant risk of suppressing legitimate forms of expression. This tracker will serve as a key resource for groups working to ensure citizens have access to timely and accurate information.”

Malawi's Democracy and Digital Rights Record to be Spotlighted by the Human Rights Council of the United Nations

By Michael Kaiyatsa and Ashnah Kalemera |

On February 3, 2020 Malawi scored a democracy victory when the Constitutional Court nullified the May 2019 presidential elections and ordered for fresh polls within 150 days. In that time, the country will also undergo its Universal Periodic Review (UPR) by the Human Rights Council, scheduled for May 2020.  Whereas previous reviews did not receive elections-related recommendations, Malawi’s  democratic credentials – freedom of expression, media freedom, and access to information – have come under scrutiny.

At the upcoming review, it is crucial that the country’s democratic credentials are scrutinised and recommendations to the Malawian government reflect explicitly the need to uphold rights and freedoms online and offline, in line with the state’s obligations under Articles 17 and 19 of the International Covenant on Civil and Political Rights (ICCPR).

In recent years, Malawi has made significant policy and structural reforms in the technology sector. The third Malawi Growth and Development Strategy (MGDS III) (2017–2022), recognises Information and Communications Technology (ICT) among the five priority areas in accelerating development. The strategy aims to increase access to ICT services; provide well-developed ICT broadband and infrastructure services; and increase the number of ICT-skilled and industry-ready workforce in public and private sector institutions. Meanwhile, the National ICT Policy, 2013 is dedicated to promoting the use of ICT in the country, and a national fibre optic backbone project was completed in April 2018.

However, the country must  commit towards ensuring a conducive environment for privacy and data protection as well as access to and affordability of the internet and related technology as key enablers of social, economic, and political development.

Freedom of expression

Article 35 of the Malawi Constitution guarantees freedom of expression while  Article 36 makes provisions for a free press. Despite these enabling constitutional provisions, other legislation places restrictions on citizens’ exercise of the right to freedom of expression.

The Electronic Transactions and Cybersecurity Act of 2016 provides for restrictions on online communications to “protect public order and national security”. The law also penalises “offensive communication” via online platforms with fines of Malawian Kwacha (MWK) 1,000,000 (USD 1,352) or a maximum 12 months prison sentence. Section 4 of the Protected Flag, Emblems and Names Act, 2012 makes it an offence to “do any act or utter any words or publish or utter any writing calculated to insult, ridicule or to show disrespect” to the President, the national flag, armorial ensigns, the public seal or any other protected emblem or likeness. The Penal Code penalises sedition (punishable with a fine of up to MWK 354, 845 – USD Dollars 480 – and imprisonment of five years for first time offenders and seven years for subsequent offences), and libel (up to two years imprisonment).

In the previous cycle of the UPR (May 2015), the government of Malawi received three recommendations relating to freedom of expression, opinion and the press from the governments of Austria, Ghana, and Tunisia although none explicitly mentioned the online sphere. Austria and Tunisia’s recommendations to “fully investigate all cases of harassment and intimidation of journalists and human rights defenders with a view of bringing the perpetrators to justice” and “issue a standing invitation to the special procedures of the Human Rights Council and ensure an enabling environment for the activities of journalists, human rights defenders and other civil society actors”, respectively were supported. However, Ghana’s recommendation to “decriminalise defamation and incorporate this into the Civil Code” was only “noted”.

Since then, there have been various instances of restrictions on freedom of expression online with notable arrests and prosecution for allegedly insulting the President and First Lady on Facebook; speech against a marginalised group; circulating forged documents; and treason. In July 2019, the Minister of Information and Government Spokesperson warned that the Electronic Transactions and Cyber Security Act, 2016 would be used to take punitive action against online speech viewed as denigrating to others. Furthermore, in the run up to the now annulled elections, the Malawi Communications Regulatory Authority (MACRA) issued a notice warning the public against disinformation on social media platforms. The notice stated that the regulator would “work with various stakeholders to seek ways of countering the spread of fake news.”

Freedom of information and censorship of content

Citizens’ right of access to information is provided for under Article 37 of the Constitution. The Access to Information Act of 2017 provides for the right of access to information in the custody of public bodies and relevant private bodies, as well as the processes and procedures for obtaining such information.

However the Official Secrets Act under section 4(1) prohibits disclosure of a wide range of information. The Preservation of Public Security Act (1960), under section 3 (Public Security Regulations) makes it an offense to publish anything likely to be “prejudicial to public security; undermine the authority of, or the public confidence in, the government; promote feelings of ill-will or hostility between any sections of classes or races of the inhabitants of Malawi; or promote industrial unrest in the country.” These two outdated laws place restrictions on access to information, in addition to offenses relating to sedition and publication of false information under the Penal Code. Further, Section 46 of the Penal Code empowers the Minister of Justice to prohibit the publication or importation of any publication that he or she considers to be contrary to the public interest.

During the second cycle of the UPR, the government of Malawi received two recommendations from Norway relating to the freedom of information – “Consolidate the policy gains into legal reforms on issues such as treatment of same-sex relations and access to information” (noted) and “Prioritise public education and information as well as capacity building of state institutions as part of efforts to strengthen implementation of national human rights legislation” (supported).

Since the review, instances of restrictions to access to information online include internet outages on election day in May 2019, with reports suggesting that the disruption was ordered by the government to disrupt information flows and keep citizens un-informed during the election. On censorship of content, amidst concerns over “moral standards, values and aspirations as a nation” within the music industry,  in May 2018, the Malawi Censorship Board embarked on a programme to review songs and films with “suspicious moral content” in order to “protect the rights of listeners”. In February 2019, Malawi Police arrested a musician for producing a “blasphemous song”. He was sentenced to two years in jail. According to Freedom House, “several journalists have complained that their articles are sometimes never published online or in print because their editors received directives from officials to refrain from publishing about certain topics”.

Equality and barriers to access

Section 157 of the Communications Act of 2016 mandates MACRA to establish a Universal Service Fund. In October 2019, MACRA announced that it would roll out the Universal Access to Information and Communications Technology (ICT) Services Project starting in 2020 to ensure universal coverage in the country, including to rural and under-served areas.

Despite these efforts, ICT adoption in Malawi remains among the lowest in the world – 25.5 mobile broadband subscriptions for every 100 inhabitants as at 2017, the most recent year International Telecommunications Union (ITU) data is available for. The Inclusive Internet Index 2019 which assesses internet availability, affordability, relevance of content and readiness ranks Malawi 98th out of 100 countries. Malawi is currently ranked 52 out of 61 countries in internet affordability. The average monthly cost of 1GB data is MWK 3,500 (USD 4.8).

The country has maintained a 17.5% value-added tax (VAT) on mobile phones and services, a 16.5% VAT on internet services and an additional 10% excise duty on mobile phone text messages and internet data transfers, introduced in 2015.

In October 2019, the government of Malawi attempted to introduce a 1% withholding tax on mobile money transactions in the 2019/20 National Budget. The proposal was withdrawn following pressure from civil society groups and the private sector.

Data protection and privacy

The right to privacy is enshrined in Section 21 of the Constitution of Malawi, which stipulates that “Every person shall have the right to personal privacy, which shall include the right not to be subject to: (a) searches of his or her person, home or property; (b) the seizure of private possessions; or (c) interference with private communications, including mail and all forms of telecommunications”.

Malawi does not have a standalone data protection law. In March 2018, the then Minister of ICT, Nicholas Dausi, announced plans to draft a bill on data protection in response to the changing media and technological landscape. In the meantime, The Electronic Transactions and Cybersecurity Act of 2016 which aims “to put in place mechanisms that safeguard information and communication technology users from fraud, breach of privacy, misuse of information and immoral behaviour brought by the use of information and communication technology” provides some protections. The Act provides for the processing of personal data (section 71); and the rights of data subjects (section 72) while sections 73 and 74 relate to the obligations of a data controller. Under section 84, the Act criminalises unauthorised access, interception, and modification of data with conviction attracting fines of MWK2,000,000 (USD 2,680) and imprisonment for five years. However, article 29 requires service providers to retain data and disclose it when required by courts.

There is also the Communications Act of 2016 which criminalises unlawful interception or interference, and disclosure of electronic communications (section 176), with penalties upon conviction of a fine of MWK 5,000,000 (USD 6,500) and imprisonment for five years.

Section 20(1) of the Access to Information Act of 2017 requires an information holder to notify third parties if information being requested relates to confidential or commercial interest. Third parties are required to respond in writing within 10 working days from the date of receipt of the notice and indicate whether the requested information is considered confidential and provide reasons for non-disclosure. The Act also prohibits information holders from disclosing information whose disclosure would result in the unreasonable disclosure of personal information about a third party (section 29) or which is likely to result in endangering the life, health or safety of a person (section 31). On the other hand, information holders are prohibited from disclosing legally privileged information unless the data subject (patient, client, source or person entitled to the privilege), consents to the release of the information or has waived the privilege or a court order is made to that effect (section 32).

Section 10 of the National Statistics Act, 2013 empowers the National Statistics Organisation (NSO) to collect all types of information, including personal information, nationwide on behalf of the government.

The major weakness of the current legal and policy framework is the lack of a dedicated data governance framework. This is especially problematic considering ongoing mandatory personal data collection exercises such as SIM card registration and biometric data collection as part of the national identification programme. Meanwhile, the government is reported to have rolled out the Consolidated ICT Regulatory Management System (CIRMS), with perceived surveillance capabilities. In 2017, the Malawi Supreme Court of Appeal dismissed an application by Telekom Networks Malawi (TNM), one of the country’s mobile service providers, to stop the implementation of the CIRMS on privacy grounds.

As part of Internet Freedom and UPR advocacy efforts at the Human Rights Council, the Centre for Human Rights and Rehabilitation (CHRR),  the Collaboration on International ICT Policy for East and Southern Africa (CIPESA), and Small Media made the following recommendations to UN members to consider putting forward to the Malawi delegation during the upcoming review:

  • In compliance with international standards and the right to freedom of expression guaranteed under Article 19 of the ICCPR and section 35 of the Malawi Constitution, guarantee freedom of expression and opinion online as well as offline for media and individuals, including marginalised and discriminated groups by repealing all laws that restrict freedom of expression, including the Protected Flag, Emblems and Names Act, libel and defamation laws.
  • Refrain from implementing internet shutdowns or disruptions under any circumstances.
  • Ensure that the 2017 Access to Information Act is fully implemented and all public bodies are in full compliance in providing their data regularly in accessible formats.
  • Hasten efforts to provide equal access to technology and communications to all citizens, including disadvantaged and marginalised groups of the population, by removing barriers to access and improving affordability, as well as expanding infrastructure and desisting from internet disruptions.
  • Approve the legislation on personal data protection and privacy in order to provide safeguards on the use of personal data and to protect the right to privacy online.