By Advocates Tekane Maqakachane and Katleho Nyabela
The essence of the law is the allocation of risk in a society by distributing liability equally to members of the society or the sector of the society within which the risk is prevalent.
The proposed internet regulatory framework by the LCA through the Draft Rules 2020 clearly shifts the whole burden relating to illegal and unacceptable internet content and activity and deposit it exclusively on the “internet broadcasters” without at the same time establishing a clear framework for allocating the risk and distributing liability to, for example, internet service providers (ISPs), intermediaries, social media companies, public discourse fora, file sharing sites, cloud hosting providers, etc.
There is need for statutory imposition of legal duties on these entities to take responsibility for the safety and protection of their users and to make good the online harm occasioned by content or activity on their respective services.
The model fails to identify the communications sector actors (companies, professions, sector and industry) to provide or allow their involvement in the fight against illegal and unacceptable internet content and activity.
Thus on the continuum of non-regulation, self-regulation and state regulation, the proposed model moves from one extreme end of the continuum (non-regulation, as it is the case now) to the opposite extreme end, and recognizes state driven intervention as the only remedial action for the aforesaid internet challenges.
While self-regulation has been considered to be insufficient and failing or inadequate in some digital economies, co-regulation (the combination of self-regulation and state intervention) has proved to sufficiently provide a repertoire of ex-ante internet content regulatory framework with immense advantages and benefits to the communications industry, the consumers of communication services and the sector independent regulator itself.
The co-regulatory framework provides voluntary arrangements undertaken by communications sector actors, enacting of relevant codes of good practice or conduct, evaluation of complaints, investigations and appropriate sanctions in the event of breaches or non-compliance.
Under this system, the regulatory role is a shared responsibility between the sector regulator and the communications industry, but the industry is allowed to take the leading role in standards setting and encouraging respect and compliance.
The appropriate co-regulatory model, in order to address the offending internet content and activity should authorise the independent regulator (LCA) to issue fines, block access to websites and even impose liability and other sanctions on the individual members of the service providers’ (companies’) senior management.
The LCA should not approach the issue of internet content and its regulation in a generic way as threats mounted on the internet are not of the same source, nature or effect.
There is a need for the LCA to identify specific risks posed by the internet content and activity, and take a risk-approach by prioritizing regulatory action to tackle harms that have the greatest impact on individuals or wider society and to reflect this approach correspondingly in the risk liability and apportionment and sanctions phases of regulation.
This proportionate approach will also be enshrined in the Draft Rules 2020 (or other appropriate Bill, as proposed below) by making clear that “internet broadcasters” do what is ‘reasonably practicable’ – a test that has underpinned the success of health and safety legislation.
The risk-approach and proportionate approach further enjoin the LCA to comply with principles of regulatory best practices as well as requiring the LCA to support less resourced companies and individuals as part of LCA’s work to develop tools to build capacity amongst companies and users.
There are also filtering and labelling service and techniques, and information about them, as control measures and tools which the ISPs and other service providers should provide to the users of the internet.
Consequently, Draft Rules 2020 are clearly disproportionate to the legitimate goals or ends pursuit or sought to be achieved (internet content regulation), and run in the face of the protection afforded by section 14 of the Constitution.
Draft Rules 2020 are so Thin on Substance and Details
Considering the critical nature of the subject-matter of internet content and activity regulation in digital economies and the challenges it poses to both established and emerging democracies, we would have hoped that any regulatory framework dealing with this issue in Lesotho will take a broad substantive approach with sufficient details, taking into account international regulatory best practices and the emerging principles regulating this difficult area of the law.
On the contrary, however, the Draft Rules 2020 are so thin, skeletal and lacking on points of substance and detail. The Draft Rules 2020 ought, at the least, to cover the following subject-matters of regulation on internet content and activity, in adequate and clearest of terms:
The scope of online harm (illegal and unacceptable content and activity on the internet);
Content and legal personae that are excluded from the regulatory framework;
The legal duty and responsibility of internet service providers, companies, internet users, etc in relation to online harm;
New roles of the LCA within the context of internet content regulatory framework;
The new responsibilities of the LCA in not only ensuring compliance with the regulatory framework, but also in assisting and supporting compliance by the regulated legal personae in relation to technology, education and awareness, as well as empowering of internet users.
The role of Parliament in ensuring that LCA complies with the mandate under its new responsibilities and roles.
INTERNECT CONTENT REGULATION: THE PROCESSES
Consultative Process Relating to the Draft Rules 2020
Apart from the substantive concerns dealt with in the preceding section, the proposed Draft Rules 2020 raise a number of procedural missteps and concerns. Leading the list of these concerns relate to the consultative process itself.
It is not clear when (the date) were the calls from public to make contributions relating to the proposed Draft Rules 2020 made, but what can be ascertained from the tweeter account of LCA,41 the notice to the public by LCA triggering public consultation process was published on the 2nd October 2020 at 16:59 hours.
The notification states that “the comments on the draft Rules may be submitted in writing … [and] the closing date for submissions is 29 October 2020 at 16:30 hours.”
The LCA seeks to run a rough shot through an otherwise critically important consultative process by relegating same to a worthless formality level with no consequences or benefits to the communications industry and the people of Lesotho in general.
The concerns around the issue of internet content and activity are as old as the advent of internet itself and there are no clear objective grounds why the LCA should not hold extensive, transparent and credible consultative process, both through the social media platforms, virtual meetings and webinars, including, where appropriate, particularly in the remote areas of this Kingdom, physical visitations to the public.
We are of the view that LCA either treats this process as a mere formality, has come to its own conclusion on the matter and merely seeks to dress-up the foregone conclusions in a garb and appearance of due process, or the LCA does not appreciate the import, value and the necessity of proper consultative processes on these issues.
A 27-day consultative process on important issues pertaining to regulation of internet content and activity is not only a mockery to the process but also a travesty to the objectives of broad-based and inclusive participatory consultative process.
It would stand LCA, the communications sector, the communications industry and the public at large in a better stead if LCA followed the counsel of prudence and took a leave from the pages of the United Kingdom Government’s wisdom book in activities of this nature.
In dealing with internet content and activity, especially, online harm, the Government of the United Kingdom published online a White Paper in April 2019.44 In the White Paper, the UK Government dealt with:
the background information to intended regulatory framework;
the scope of the online harm to be covered;
the emerging global regulatory frameworks tackling harmful and illegal online content and activity;
the proposed new regulatory model for the UK which among others introduces a statutory duty of care for relevant companies;
the role of UK parliament in scrutinizing the independent regulator;
companies in scope of regulatory framework which include companies that provide services or tools that allow, enable or facilitate users to share or discover user-generated content, or interact with each other online, but which excludes private channels);
new roles of the independent regulator within the context of internet content regulatory framework, setting out what companies need to do to fulfil the duty of care, including through codes of practice, establishing a transparency, trust and accountability framework, backed by information-gathering powers, to assess companies’ compliance with the duty of care and their own relevant terms and conditions;
long public consultative process (12 weeks) on specifically identified questions which members of the public in the UK are expected to address their minds on. Further engagement workshops were held. Finally, experts in the relevant fields and sectors were engaged to assist in the process and shaping of the new online harm regulatory framework in the UK.
Consultative Process: Inclusivity and Credibility Concerns
The 27-days consultative process runs foul to inclusive participatory process of consultation. It does not take account of the fact that there are persons in this Kingdom whom, though they desired to participate in the process, are effectively excluded therefrom by the LCA.
As indicated above, the whole process is wrapped in a garb of informality, indifference and triviality by the LCA which in turn raises credibility concerns about the consultative process itself and the bona fides of LCA. NW
Tekane Maqakachane and Katleho Nyabela are practising advocates of the courts of Lesotho. This is part three of their submission to the Lesotho Communications Authority (LCA) regarding the proposed promulgation of the LCA (Internet Broadcasting) Rules, 2020. Read part one here and part two here.