Government’s bid to clampdown on social media

For emaSwati who have been politically muzzled for over 40 years, social media provides them with an opportunity to voice out their frustrations on government and the leadership of this country, in particular the king. But that ‘freedom’ may soon come to an end as government makes an attempt to clampdown on social media, VUYISILE HLATSHWAYO reports.

After breathing a sigh of relief when the lawmakers removed the controversial fake news clause from the Computer Crime and Cyber Crime Bill 2020, emaSwati are in for a shock as government takes another shot at social media.

The eSwatini government is now pushing for The Harmful Digital Communication Bill, 2020, which seeks to criminalise false allegation spread on digital media. This will leave many shocked because it disguises fake news as false allegation. Its purpose is twofold. The first is to “deter, prevent, and mitigate harm caused to individuals by digital communications.” The second is to “provide victims of harmful digital communications with a quick and efficient means of redress.”

The bill is piloted by minister of commerce, industry and trade, Manqoba Khumalo, who is standing in for the information, communication and technology minister, Princess Sikhanyiso. The princess is still on maternity leave for more than one year. Yet, Section 102 of eSwatini Employment Act No.5 of 1980 stipulates a three-month maternity leave.

Khumalo ascribes the bill to the proliferation of harmful posts made about citizens by the digital media users in Facebook, WhatsApp and other social media platforms. He also blames it on the derisive, slanderous and hurtful posts that are made on the social media platforms on almost a regular basis. All that, he says, has compelled government to regulate the digital media.

“Social media platforms offer great organising potential, enhance political accountability and disrupt old media practices that tend to exclude less powerful voices from important social discussions. Whilst these are good, they have a flip side which has now become a great concern in society. They’ve become a source of harm and ruin. It’s in this light that the ministry is developing the Harmful Digital Communication Bill, 2020,” he says.

Khumalo further decries the fact that the social media platforms have proved to be a “bane of our existence.” He recognises that Section 24 (1) of eSwatini Constitution explicitly states that: “A person has a right of freedom of expression and opinion”. He argues, however, that Section 24 (3) promotes responsibility in exercising the right to freedom of expression and opinion.

“It is unfortunate that some members of our society believe and behave as though this right has no limits. This bill is aimed at enforcing responsible behaviour to citizens whilst they continue to enjoy Section 24 of the Constitution. Citizens will freely speak their mind while minding to be respectful of others’ self-respect and dignity,”he says.

A legal consultant, Fikile Valerie Dlamini, who drafted the bill, says its intent is to balance the people’s rights. It will balance the human rights of individuals and social media users, paying particular attention to the subjects of the harmful digital communications. It seeks to minimise the harm caused by any degrading information spread via the digital media.

In the background, the ICT ministry is fast–tracking a decision of the Southern Africa Development Community heads of state and government. In the August Summit held in Mozambique, they took a decision that they must increase surveillance of social media use; targeting those that are disseminating views on the social media. They urged each other ‘to take pro-active measures to mitigate external interference, impact of fake news and abuse of social media, especially in electoral processes” according to the communique.

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The bill defines “digital communication” as any form of electronic communication including any text message, writing, photograph, picture, recording, or other matter that is communicated electronically. It describes a post as transfers, sends, posts, publishes, disseminates or otherwise communicates by means of a digital communication. This entails “any information, which is whether truthful or untruthful, about the victim; or an intimate visual recording of another individual”.

This bill is a carbon copy of The Harmful Digital Communication Act 2015 of New Zealand. Based on the same communication principles, Section 4 (1) tackles the following digital communication issues:-

• a digital communication should not disclose sensitive personal facts about an individual;
• a digital communication should not be threatening, intimidating, or menacing;
• a digital communication should not be grossly offensive to a reasonable person in the position of the affected individual;
• a digital communication should not be indecent or obscene;
• a digital communication should not be used to harass an individual;
• a digital communication should not make a false allegation;
• a digital communication should not contain a matter that is published in breach of confidence;
• a digital communication should not incite or encourage anyone to send a message to an individual for the purpose of causing harm to the individual;
• a digital communication should not incite or encourage an individual to commit suicide;
• a digital communication should not denigrate an individual by reason of his or her colour, race, descent, ethnic or national origins, religion, creed or social or economic standing, political opinion gender, age or disability.

The eSwatini Communication Commission (ESCCOM) is responsible for enforcing the proposed law. It shall receive complaints from the complainants before filing a court application. The Commission may refuse to investigate a complaint if it is trivial, frivolous, or vexatious. And if it is unlikely to cause harm to any individual or does not contravene the communication principles.

Section 17 (1) empowers the court to order a defendant to take down or disable material, cease or refrain from the conduct concerned; publish a correction or an apology. Section 17 (2) allows the court to order an online content host to take down or disable public access to material that has been posted, release the identity of the author of an anonymous or pseudonymous communication to the court. It can also order a right of reply.

The proposed bill carries hefty fines for the lawbreakers. An individual failure to comply with the court order carries a fine not exceeding E500 000 or a jail term not exceeding two years or both. A body corporate faces a heavy fine not exceeding E2 million. For causing harm by posting digital communication, the offender is liable to a fine not exceeding E1million or a prison sentence not exceeding seven years or both.

The eSwatini penalties for causing harm by posting digital communication are harsher than those of New Zealand. The Harmful Digital Communication Act 2015 of New Zealand stipulates reasonable fines. Offences of non-compliance with order carry a fine not exceeding $5,000 or imprisonment not exceeding six months. A body corporate faces a fine not exceeding $20,000.

Section 22 (3) (a) states that on conviction of causing harm with digital communication, a person faces a jail term not exceeding two years or is liable to a fine not exceeding $50,000 while a body corporate faces a fine not exceeding $200,000.

Such harsh penalties betray the fact that eSwatini government is bent on cracking down on the burgeoning digital media users. Previously, fake news on digital media carried a fine not exceeding E10 million in the Computer Crime and Cyber Crime Bill 2020 tabled by the ICT ministry in parliament. However, the parliamentarians told the minister to remove the controversial fake news clause. This also flies in the face of the legal concept of reasonableness in a country that is plagued by socio-economic woes.

Thriving on secrecy, the eSwatini government has felt uneasy with the proliferation of digital media. For this provides emaSwati with an alternative free digital space to the controlled mainstream. It allows them to enjoy their constitutional right to freedom of expression and media.

In a 1.2m emaSwati population, according to the datareportal.com website, there are 542,400 internet users, 260,000 social media users and 1.14 million mobile users. Facebook subscribers are 255,200 with a 22.0% penetration rate according to the intenentworldstats.com website.

The inclusion of fake news in the bill in guise as false allegation has left the media and civic society shocked. A member of Eswatini Editors’ Forum, Bheki Makhubu, who edits The Nation magazine, criticises the government for bucking the global trend of digital media. He bemoans the hostile attitude of government towards the media which has led to the criminalization of digital media in the country.     

“The government officials have had total control over the mainstream media for too long. They used to know who to call and intimidate when they wanted stories to be dropped. With the advent of social platforms they have lost control on what the people consume from the media,” he says.

Makhubu explains that the advent of online publications and social media users has triggered the government’s onslaught on the digital media. He cites the emergence of two online publications Swaziland News and The Swati Newsweek. He recalls that when the government banned Swaziland Shopping newspaper, Martin Zweli Dlamini, the owner, beat the odds by publishing Swaziland News online.

“The government was able to ban the Swaziland Shopping newspaper, but it has failed to control what the owner publishes online. That’s why they’ve decided to criminalize   digital media in the country,” he says.

Another contributory factor, he says, was the wide coverage of the royal family’s 15 Rolls Royce purchase story. He says the social media broke the story and covered it widely. The controlled mainstream media did not dare give it wide cover that it deserved due to self-censorship. The government and royalty were enraged at the absence of a legislation to regulate the digital media as the social media continued unabatedly to post truthful and untruthful digital communication about the king, royal family and other powerful figures in society.

“This Bill is another bite at the cherry after the ICT Ministry was forced to remove the fake news clause in the Computer Crime and Cyber Crime Bill 2020. It gives them a chance to clampdown on the peddlers of fake news on the social media,” he explains.

Makhubu disapproves the bill’s appointment of technical advisers to control, monitor and adjudicate the digital communication matters. He is concerned that they are not qualified to make editorial judgments and do copy-tasting.

“This is an area that they don’t have the right expertise. Yet they will be required to decide what is in good taste for public consumption,” he says.

Swaziland National Association of Journalists president, Welcome Dlamini, questioned the bill’s hefty fines. He laments that they will induce more fear among the journalists. He also argues that the exorbitant fines may lead to joblessness and shutdowns in the media sector.   

“These fines aren’t reflective of our country’s ailing economy. The minimum wage in the various sectors remain the lowest in the region and our poverty levels remain the highest. These fines impact negatively on freedom of expression. The false allegation in the bill disguises the fake news removed from the Computer Crime and Cyber Crime Bill,” Dlamini says. 

Coordinating Assembly of Non-Governmental Organizations (Cango) communications officer, Nkosingiphile Myeni, criticizes the bill for criminalizing the digital free space allowing emaSwati to enjoy freedom of expression. He sees the social media as an alternative for the people to express and exchange ideas and opinions. He says it addresses the challenge of media access by all people.

Myeni likens the government’s trend of fixing exorbitant fines in the bill to a ‘get rich quick’ scheme.