E1M FINE FOR HARMFUL SOCIAL MEDIA POSTS

MBABANE – It might soon be illegal to send messages and post material online that deliberately cause a victim serious emotional distress.

This is because government, through the Ministry of Information, Communication and Technology (ICT) has crafted the Harmful Digital Communications Bill of 2020 whose objects are to deter, prevent, and mitigate harm caused to individuals by harmful digital communications; provide victims of harmful digital communications with a quick and efficient means of redress; and provide for matters incidental thereto. 

The proposed Bill carries a minimum fine of E500 000 and a maximum fine of E5 million or a jail sentence of up to seven years for offenders. 

communication

Section 20 (1) of the Bill stipulates that a person commits an offence if the person posts a digital communication with the intention that it cause harm to a victim; and posting the communication would cause harm to an ordinary reasonable person in the position of the victim; and posting the communication causes harm to the victim. 

A victim, according to the interpretation of the Bill, is the individual who is the target of a posted digital communication.

The most common digital platforms where such communication is posted include social media sites Facebook, Twitter, Instagram and WhatsApp.

Section 20 (3) states that a person who commits an offence against this section is liable on conviction to a fine not exceeding E1 million or to imprisonment for a term not exceeding seven years or both and that is in respect to a natural person. In the case of a corporate body, if found to have committed an offence on this section, it is liable to a fine not exceeding E5 million.

In determining whether a post would cause harm, the court may take into account any factors it considers relevant, including the extremity of the language used; the age and characteristics of the victim; whether the digital communication was anonymous; whether the digital communication was repeated; the extent of circulation of the digital communication; whether the digital communication is true or false and the context in which the digital communication appeared.

This Bill comes at the height of the withdrawal of the controversial Computer Crime and Cybercrime Bill No.19 0f 2020. The Bill, which received backlash from members of the public as well as parliamentarians, was withdrawn this past Wednesday by MP Macford Sibandze, the chairperson of the portfolio committee on ICT.

This was after Members of Parliament debated a report tabled by the portfolio committee, where they argued that the Bill needed to be taken back for proper consultations. 

The withdrawn Bill had similarities with the Harmful Digital Communications Bill in that it stated that any person, who publishes any statement or fake news through any medium, including social media, with the intention to deceive any other person or group of persons, commits an offence. 

conviction

It was spelt out in the withdrawn Bill that the fake news pusher shall be liable on conviction to a fine not exceeding E10 million or imprisonment not exceeding 10 years or both.

The glaring difference was the hefty fine of E10 million which parliamentarians felt offenders would not be able to afford and it only meant rotting in jail for those found guilty.

Human Rights Commissioner Sabelo Masuku said the Bill was no different from the withdrawn Computer Crime and Cybercrime Bill in that it still poses a challenge for would-be offenders in paying the option of a fine as this Bill also carried hefty penalties amounting to E5 million.

He said an option of a fine should be affordable such that offenders are able to pay it to avoid going to jail but in essence, this Bill was simply saying ‘go to jail’. 

“We live in a society where such heavy fines are not common and it is logical to think that people would not afford to pay E1 million as a fine. This merely means people will be going to jail as the option of a fine is not within their means,” he said. 

However, Masuku was cognisant of the fact that this is still a Bill which would go through phases that include debates by legislators in Parliament. He said the public opinions on the Bill should also be considered as it would be directly affecting them. 

Another country that uses the same Bill is New Zealand, where the offence of causing harm by posting digital communication is punishable by up to two years imprisonment or a maximum fine of E782 000 ($50 000) for individuals and a fine of up to E3.1 million ($200 0000) for companies.

Offence of non-compliance 

with order

Sections of the proposed legislation invest powers in the court to make orders against a defendant and an offence of non-compliance to these orders carries a fine of E500 000 or two years imprisonment for a natural person and up to E2 million for a body corporate. 

Section 17 of the Bill states that the court may, on an application, make an order to take down or disable material; an order that the defendant cease or refrain from the conduct concerned and an order that the defendant not encourage any other persons to engage in similar communications towards the affected individual. 

It may also make an order that a correction be published; an order that a right of reply be given to the affected individual and an order that an apology be published.

Section 16 (1) of the legislation states that: “The court may, if the court considers it is desirable to do so, grant any interim orders pending the determination of the application for orders under Section 17. (2) An interim order under this section may do anything that may be done by order under Section 17 and expires when the application under that section is determined.”

Online content hosts 

protected

Online content hosts will be protected under this proposed legislation.

 The interpretation of the Bill refers to an online content host, in relation to a digital communication, as the person who has control over the part of the electronic retrieval system, such as a website or an online application, on which the communication is posted and accessible by the user.

The protection of the online content host is contained in Section 22 (1) of the Bill and it states that no civil or criminal proceedings may be brought against an online content host in respect of the content complained of (the specific content) if the online content host receives a notice of complaint about the specific content; and complies with Subsection (2). 

requirements

Some of the requirements of Subsection (2) include that the online content host shall, as soon as practicable but no later than 48 hours after receiving a notice of complaint, provide the author of the specific content with a copy of the notice of complaint, altered to conceal personal information that identifies the complainant if the host has received confirmation that the complainant does not consent to the host providing that information to the author; and notify the author that the author may submit a counter-notice to the host within 48 hours after receiving that notification.

If the host is unable to contact the author (for example, because the identity of the author is unknown) after taking reasonable steps to do so, the host shall take down or disable the specific content as soon as practicable after taking those steps but no later than 48 hours after receiving a notice of complaint.

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