By Advocates Tekane Maqakachane and Katleho Nyabela
Illegal and unacceptable (also wrapped in a hue of moral turpitude, we may add) content and activity is not only rife in any digital economy but is also disturbing to the greater part of the citizenry (the right-thinking members) of that economy. Lesotho as an emerging digital economy has not been spared the ills that are concomitant with digitization.
While the internet has on the one hand enhanced the freedom of expression by providing a powerful medium through which such expression may be realized, it cannot be gainsaid that, on the other hand, the advent of internet and internet service provision in Lesotho has carried with it the capacitation and enabling of character assassins, criminal activity perpetrators and business competition rabble-rousers’ wrongful and illegal escapades and crusades on the information super highway.
The challenge at the global level, and, in particular, to the digital economies, has been the achievement of a delegate equipoise between upholding the freedom of expression as a vanguard of any democracy and the effective rooting out of illegal and unacceptable content and activity on the digital space.
We commend the Lesotho Communications Authority (LCA) for entering this new but murky normative space and attempting to lay down the legal foundation for internet content regulation in Lesotho.
The recent publication by LCA of the proposed Lesotho Communications Authority (Internet Broadcasting) Rules 2020 and the call upon the public to voice its opinions on these Draft Rules is a clear indication of the LCA’s cognizance of the challenges presented by the internet and the necessity to properly regulate internet content, which the LCA terms “internet broadcasting”.
We however have the following concerns on procedural and substantive fronts of the Draft Rules 2020.
First, we are deeply concerned with the LCA’s approach in the establishment of internet regulatory framework for online illegal and unacceptable content and activity.
Substantively, the Draft Rules 2020 do not only constitute a threat to section 14 of the Constitution, as we will shortly indicate, but are also seriously wanting both in substance and details around the albeit important matters of online regulation.
We will address the latter first, and then deal with the former later in this communication.
INTERNET CONTENT REGULATION: THE SUBSTANTIVE ISSUES
Internet Content or Internet as Enabler of Services
Lesotho Communications Act 2012 establishes the LCA. It is an Act, as the Long Title thereto indicates, to “provide for the regulation of telecommunications, broadcasting and postal sectors”.
It is doubtful whether the sections of the Act 2012 on which the LCA relies on in promulgating the Draft Rules 2020 authorize the regulation of internet contents as far as user-generated online content is concerned. In our view, the Act 2012 takes an instrumentalist approach to the internet (which constitutes part of the “communications infrastructure” or “communications network”) for the provision of communications service and is more concerned with these communications service than the internet content itself.
Duties of LCA: Regulation of Content of Internet
The Act 2012 makes provision for several important duties to be performed by the LCA. Amongst them, where relevant, is to: protect the interests of the consumers of communications services; to facilitate deployment of communications infrastructure and the provision of good-quality communications services, at reasonable prices, throughout all areas in Lesotho, giving special consideration to the needs of end-users who are low-income, disabled, or located in under-served areas; etc.
None of these duties envisage the regulation of the internet content or the user-generated content as such.
The Powers of the LCA: No Power to Regulate Internet Content
Although the LCA’s powers under the Act 2012 in relation to the communications sector are wide ranging and include the power of the LCA to establish the requirements governing interconnection of communications networks and access to communications network facilities and services, to designate an entity to administer internet domain names8 and to facilitate the establishment and administration of internet infrastructure elements, none of these statutory powers of LCA include provision for regulation of internet content.
The power to make rules under section 5(1)(c) of the Act 2012, therefore, must be read to mean the power to make rules relating to the substantive issue concerning which the LCA has the express power or duty to regulate or deal with in the first place.
There is no such substantive provision concerning which the rule making power may relate to under section 4 or section 5(1) of the Act 2012 concerning internet content regulation.
Internet Content in Broadcasting Services: A License for Broad-based Internet Content Regulation?
Section 38(1) of the Act 2012 regulates the LCA’s grant of licenses for “broadcasting service” and prescribes standards for granting such licenses. It is clear that section 38 is applicable to the granting of licenses relating to broadcasting service.
The Act 2012 categorizes broadcasting services into “commercial broadcasting service”, “public broadcasting service”, “community broadcasting service”, and “private broadcasting service” and clearly defines what these services consist of.
Section 38 clearly does not apply to the consumers of the communications service, in particular broadcasting service as categorized and defined by the Act 2012, or to user-generated content on social media platforms.
When members of the public or end-users, utilize the internet as the medium of communication or of whatever form of expression, they are not providing any service, not to mention broadcasting service.
Consequently, when section 38(2) of the Act 2012 makes provision that “audio, video or any content distributed through the internet may be licensed or regulated as broadcasting”, that section should be read within the context of licensing of broadcasting services themselves, and not as a stand-alone authority to regulate and license “internet content” in relation to consumers of internet service or user-generated content.
That section does not cover user-generated content on the internet or users that interact with each other on social media platforms.
There are clear indications why this latter reading of section 38(2) of the Act 2012 is the correct one.
First, section 38(1) of Act 2012 expressly identifies a range of broadcasting services concerning which relevant licenses may be awarded by the LCA.
Second, section 38(1) imposes specific thematic areas to be considered by the LCA in granting licenses for broadcasting services, which indicate that the section as a substantive enactment is concerned with the provision of broadcasting services, and not the consumers and users thereof.
Third, resulting from absence of regulation of internet content itself, certain data or material transmitted through the internet may actually come within the meaning of “broadcasting” and these material are usually in the form of audio, video or other internet content.
Fourth, some communication services delivered through and over the internet do resemble broadcasting in certain material respects (livestreaming through Facebook, posting of audio-video content on the internet, etc); but this does not mean the converse is also true: not all internet content resembles or can be classified as “broadcasting”.
Finally, it is the internet content that has a look and feel of “broadcasting service” posted on the internet which necessarily have to be covered as “broadcasting” and the LCA has been granted discretion to make the determination as to which content should be so categorized, licensed and regulated as broadcasting service package.
Consequently, section 38(2) of the Act 2012 is not a carte blanche legal authority on the part of LCA to regulate internet content generally. It would therefore be wrong for the LCA to purport to regulate internet content which does not appropriately or properly constitute “broadcasting service” in terms of section 38(2) of the Act 2012, and by a legislative pen, transmogrify them into “broadcasting service”.
Thus, section 5(1)(e) and section 38(2) of the Act 2012 are not an authority to the LCA to make rules that regulate user-generated internet content or social interaction of users and consumers of communications services on social media platforms. Such authority may be sourced elsewhere in the Act 2012, and certainly not on sections 5(1)(e) and 38(2) of the Act 2012.
Power of LCA: Development of Communication Sector and Internet Content
It would seem that the substantive provision on which the LCA may rely on enacting prescriptions or regulations relating to internet content is section 5(2) of the Act 2012.
That section reads thus: “Notwithstanding subsection (1), the [LCA]shall, in relation to the communications sector, have power to do anything for the implementation of this Act, or anything related to the development of the communications sector that is not prohibited by this Act.”
This section is clearly wide enough to authorise the making of rules under sections 4 and 5(1) so as to regulate the substantive internet content, in an effort by the LCA to develop the communications sector of Lesotho, though laying down of new legal duties for service providers, intermediaries and users of the internet, the creation of infrastructure (both institutional and normative) to address the online harm and laying down new roles and responsibilities of communications sector actors, the independent regulator and other stakeholders such as Parliament itself.
The Act 2012 clearly does not prohibit the internet content regulation by the LCA in its developmental role in the sector.
Thus, section 5(2) of the Act 2012 is an express legal authority for the LCA to regulate internet content and establish appropriate regulatory infrastructure and frameworks for online content and activity. The critical issue now turns on whether in promulgating Draft Rules 2020 under the authority of section 5(2) of the Act, the LCA was alive to the constitutional imperative of respecting the value of the freedom of expression entrenched under section 14 of the Constitution, the question to which we now turn. NW
Tekane Maqakachane and Katleho Nyabela are practising advocates of the courts of Lesotho. This is part one of their submission to the Lesotho Communications Authority (LCA) regarding the proposed promulgation of the LCA (Internet Broadcasting) Rules, 2020.