Tanzania: Court Gives Nod on Enforcing Online Regulations

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 30^th 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.