Court: “mere busybodies” failed to prove how are they affected
by the Regulations
By Our Technology Analysts,
DAR ES SALAAM and NAIROBI, 30-05-2018,
THE Government of Tanzania yesterday (28 May 2018) won a
court case filed to seek Courts consent for orders of judicial review
challenging newly signed Electronic
and Postal Communications (Online Content) Regulations, passed on 16 March 2018.
The High Court in Mtwara, a
region in South-East of Tanzania, dismissed the application by a coalition of media
and civil society originations as immaterial since the facts and deponed in the
affidavits filed by the applicants failed to establish locus stand of the
rights organizations.
This was confirmed
yesterday by the Tanzania Government Spokesperson, Dr Hassan Abbasi, who tweeted
the news.
“A team of government Solicitors
under the new Office of the Solicitor General, argued to the satisfaction of
the Court that the coalition of civil societies and the media stakeholders who
filed the application were ‘mere busy bodies’ who failed to present persuading
facts as to how the new Rules would affect their personal rights-a legal
requirement and judicial review Rules,” said in a brief Daily News Online interview.
The High Court had earlier
this month (May) issued a temporary
injunction restraining the use of the Online Content Regulations registration
order which were to be in effect on the 5th of May, 2018.
The Government of Tanzania,
respecting the rule of law, complied to the temporary banning, giving way to
the court to deliver justice to either party, a move some saw as a pinnacle of
democracy in the country.
Earlier, the court had on 30th
April this year, issued the injunction to enforce the online regulations following
an application filed by Six Civil societies and Media stakeholders.
During the Judicial Review
application, six civil society organizations and Media stakeholders filed a
case against the Minister of Information, the Tanzania Communications
Regulatory Authority (TCRA) and the Attorney General.
In their primary
application, the applicants requested the High Court to review the Regulations
based on the claims that the minister exercised legal authority outside his
jurisdiction (ultra vires), that the regulations violated the principles of
natural justice, violated the freedom of expression, the right to be heard and
the right to privacy.
The firms that filed the
application were the Tanzania Human Rights Defenders (THRDC), the Legal and
Human Rights Cente (LHRC), the Media Council of Tanzania (MCT), Jamii Media,
the Tanzania Media Women’s Association (TAMWA) and Tanzania Editors Forum
(TEF).
Affected Parties or Mere
Busy Bodies?
In his brief but well
reasoned judgment, Justice Dr. Fauz Twaib avoided the term “mere busy bodies”
in reference to the applicants as suggested by a Senior State Solicitor,
Advocate Komanya.
However, the Judge went on
to affirm that such are common terms used to describe institutions or
individuals who enjoy frequenting judicial corridors without justifiable
causes.
Bloggers Continue to Comply
While this application is
being rejected as immaterial, bloggers in numbers continue to comply with the
law and recently TCRA organized a grant reception to issue the first batch of
certificates to a handful of bloggers.
“A blogger would only pay a
registration fee of 100,000/- (US$44) and an initial fee of 1,000,000/-
(US$443), therefore, to operate, a blogger would only have to pay 1,100,000/-
(US$487) that lasts for about 2 years (24 months) of service,” James Kilaba,
TCRA Director General clarified.
“Once the registration fee of
100,000/- (US$44) and initial fees of 1,000,000/- (US$443) were paid, the
blogger will again visit TCRA cashier to make their annual fees after 12
months,” said Ms Fortunata Mdachi, Acting TCRA Director for Legal Services.
Not until a publication of the
Electronic and Postal Communications (Online Content) Regulations were gazetted
in 2018 through Government notice No. 133 on 16 March 2018, the bloggers were
unregulated in Tanzania.
“The regulations were in no way
aimed to muzzle free speech in Tanzania but to identify operators in the
industry for helping to ensure the content is appropriate for consumption,
thereby creating a secured online operating environment for everyone,” said
Phillip Filikunjombe, a Senior Legal Officer at TCRA.
Kenya’s Online Content Law
Observers say the
Tanzania’s online regulations were too lenient compared to those in their
neighborhood. In another East African country, President Kenyatta of Kenya
recently signed into law the Computer and Cyber-crime Bill 2018.
The cyber bullies and
stalkers could face 10 years imprisonment or Kenyan Shillings 20 million fine
or both. The law also targets those who alter information through Photoshop.
Other crimes covered under the new law include; cyber espionage, computer
fraud, unauthorized access, interference and interception to security systems
and illegal use of devices and access codes.
Under the new law, sharing
pornographic images and videos on the social media will attract a maximum fine
of Sh300,000 or 30 years in prison or both. Spreading of child pornography will
attract a Sh20 million fine or 25 years in prison or both.
Landmark Online Content Law in German
Germany’s Parliament early this year passed a
landmark law to hold Internet companies accountable for illegal, racist,
slanderous material on their social media platforms, requiring them to remove
such content within a specified timeframe, or face fines up to 50 million euro.
Former
German Justice Minister Heiko Maas, the driving force behind the legislation,
declared that “freedom of speech ends where the criminal law begins.”
Maas who is now Federal Minister for Foreign
affairs, had said the legislation intended to make the rules that apply in the
real world, equally enforceable in the digital world. In Tanzania, some of the
rules in the current regulations were in the penal code.
EU intervenes to protect its citizens, Calls Zuckerberg to speak in
Parliament
In Brussels, the European Union (EU) raised
concerns about the social media business. EU Justice Commissioner Vera Jourova
has announced to have held a “constructive and open discussion” with Facebook
Chief Operating Officer (COO) Sheryl Sandberg about the Cambridge Analytica
scandal.
 |
| Deo Balile Chairman of Editors Forum |
It was followed up by Mark Zuckerberg’s meeting
at the European parliament recently, which is described to end in acrimony amid
a chorus of complaints that the Facebook founder was allowed to evade questions
and to those he responded, he gave vague answers. Social media has been a
concern for everyone.
US newspapers temporarily
unavailable in Europe after new EU online Rules
 |
| Kajubi Mukajanga Director Media Council of Tanzania |
Some leading
newspapers also published online were temporarily unavailable in Europe after
the new EU data protection rules came into effect recently. The Chicago Tribune
and LA Times were among those saying they were currently unavailable in most
European countries.
Meanwhile complaints
were filed against US tech giants within hours of the General Data Protection
Regulation (GDPR) taking effect. GDPR gives EU citizens more rights over how
their information is used. It is an effort by EU lawmakers to limit tech firms'
powers.
Under the rules,
companies working in the EU - or any association or club in the bloc - must
show they have a lawful basis for processing personal data, or face hefty
fines. There are six legal bases for using personal data, including getting
express consent from consumers. However, in most cases firms must also show
that they need the personal data for a specific purpose.
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