OP-EDs

PART TWO: ARE LCA DRAFT INTERNET BROADCASTING RULES CONSTITUTIONAL?

By Advocates Tekane Maqakachane and Katleho Nyabela

Every person in Lesotho enjoys the entrenched freedom of expression, which include “freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his correspondence”.

Thus, internet users have the right to receive and impart information on the internet, in particular to create, re-use and distribute content using the internet.

It is well fairly established that the freedom of expression entrenched in section 14 of the Constitution guarantees not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.

The Constitution, however, allows limitations to this freedom in the pursuit of legitimate aims that are necessary in the democratic society. Thus the Constitution allows, through Act 2012 and Draft Rules 2020, imposition of necessary restrictions on the aforesaid freedom based on overrides such as “the interests of defence, public safety, public order, public morality or public health;” for the purpose of “protecting the reputations, rights and freedoms of other persons;” and the regulation the “technical administration or the technical operation of telephony, telegraphy, posts, wireless broadcasting or television.”

To pass the constitutional muster, the Draft Rules 2020 promulgated on the basis of section 5(2) of the Act 2012 (read with section 5(1)(e)) must impair the freedom of expression as little as possible and must be proportionate.

As it was stated in Handyside v UK, every “formality”, “condition”, “restriction” or “penalty” imposed in the freedom of expression must be proportionate to the legitimate aim pursued.

The Draft Rules 2020 may offend the principles of proportionality where there are other alternative means of achieving the same object of the Act and of the Draft Rules 2020, and which means are less invasive or intrusive of the entrenched freedom of expression.

We look at the Draft Rules 2020 and their effect.

First, while the Act 2012 authorizes the LCA to regulate internet content to the extent that such content can be classified as broadcasting services within the meaning of the Act, Draft Rules 2020 seek to classify and categorize all internet content including user-generated content as constituting “broadcasting” without any distinction.

While admittedly some internet material may resemble “broadcasting”, the large extent of internet material cannot conceptually or even pragmatically be properly categorized as such, and would therefore require a separate treatment that fairly addresses the concerns raised by the internet content as such. This is a clear case of impermissible statutory over-breadth. In dealing the constitutional problem of statutory over-breadth, it has pointedly been stated:

“In the case of over breadth the means are too sweeping in relation to the objective. Over-breadth analysis looks at the means chosen by the State in relation to its purpose. In considering whether a legislative provision is overbroad, a court must ask the question: are those means necessary to achieve the State objective? If the state, in pursuing a legislative objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individuals’ rights will have been limited for no reason. The effect of over breadth is that in some applications the law is arbitrary or disproportionate.”

Second, the apparent policy of the Draft Rules 2020 is to regulate “internet broadcasting” which is defined as internet posts accessible to at least one hundred (100) internet users in Lesotho, whether individually or in a series, and internet posts by users who have more than one hundred (100) followers in Lesotho.

The cosmetic appearance of this policy betrays or is falsified by the actual content of the Draft Rules 2020. Although Rule 3(4) declares that the Draft Rules 2020 shall apply to “internet posts” accessible to at least one hundred internet users or “internet posts” who have more than one hundred followers in Lesotho, the very definition of “internet post” and “private communication” take the wind out of the sails of “internet broadcasting” applicability field (more than hundred followers or users).

This is so since “internet posts” which is “any message, whether text, picture, video or audio that is placed or uploaded on any internet platform to be accessed by the public, be it on social media or website” does not include “private communication to specific and identifiable person/s” which is a communication “sent between two specific and identifiable persons”.

Thus, effectively, all private communication between more than two persons specific and identifiable persons, fall within the meaning of “internet post” to the public in definitive terms.

Thus, Rule 3(2) that declares that the Draft Rules 2020 will not be applicable to “private communication”, by parity of same reasoning, render communication to more than two specific and identifiable persons a subject of certification by LCA. Since private communication is between two specific and identifiable persons, any communication to a third (and more) specific and identifiable person(s) renders such person(s) covered by the term “public” under the definition of “internet post”.

This then leaves Rule 3(4) (on applicability) remain hanging in the air, as it were, since definitive terms of the Draft Rules 2020 sharply contradicted the applicability of the Rules. Consequently, co-employees of a company who have access to the emails on the internet platform of the company are clearly part of the public, as the email communication would have in the first place been between the specific and identifiable sender and addressee.

The company must then, in terms of the Draft Rules 2020, be certificated by LCA to enable it to send emails to two or more of its employees. Otherwise it offends against the Draft Rules 2020. This goes beyond the minimum impairment requisite for a justifiable limitation of the guaranteed freedom of expression.

Third, the Draft Rules 2020 render applicable to internet broadcasting by consumers of internet service the whole array of Lesotho Telecommunications Authority (Broadcasting) Rules 200423 (Rules 2004), with necessary modifications and qualifications.

These effectively means that private individuals utilizing the internet or social media platforms must comply with the standards and obligations prescribed in the Rules 2004, including but not limited to keeping of records for the duration of the certificate; submission of these records to the LCA; production of these records as the LCA may require; adhere to code of conduct as regards community standards, protection of children; fairness, accuracy and impartiality in reporting and information; ensuring that, in reporting on controversial issues of political, industrial or public importance, an appropriate range of views are reported; respect of privacy of other persons; the necessity of affording all other political parties an opportunity to broadcast their political parties’ advertisement where the one political party had been granted such a service; ensuring broadcast advertisement that are decent and conform with principles of fair competition in business; informing complainants of their right to referring complaints to LCA; corporation with complaints, monitoring and investigation procedures; and the imposition of fines and penalties by LCA in the event of breach by certificate holder.

While these Rules 2004 may be appropriate and relevant in their own context, some of these provisions are, to say the least, not necessary in the case of consumers of internet service or end-users of communication service and are unnecessarily burdensome.

Fourth, there is an obligation on the part of all persons conducting internet broadcasting to register with the LCA. Once registered, they are issued with the Certificate of Registration by the LCA. What is startling is that, as one of the required documents for registration, one must demonstrate his or her “ability to comply with [Rules 2004]”.

It is difficult what is being intended to be achieved by this condition for registration. Whatever is the objective, it is clear that the requirements of registration and certification impose cumbersome obligations on the part of internet users and end-users of communication services.

Fifth, the LCA has investigatory powers under the Draft Rules and where the internet post breaches the Draft Rules and Rules 2004, the LCA may direct the facilitation or removal of the offending internet post, with related costs borne by the person requesting the removal.

It is startling to impose the costs obligation for removal of the offending internet post on the offended and not on the offender. The offended bears the consequences of the offence of unacceptable or illegal internet post and which he or she requires to be removed from the internet, as well as the attendant costs for removal thereof, whilst the offender’s burden was simply to upload the offending material on the internet. The proper balance must be found on the sharing the burden of these costs between the owner of the offending internet post and the complainant who seeks removal thereof.

Sixth, the Draft Rules 2020 provide that where the internet broadcast does not comply with Rules 2004 and the measures of investigation and removal of offending internet posts under Rule 7 of Draft Rules 2020 are not adequate, the provisions of Act 2012 shall apply. This effectively means, first, that uploading any internet material on public platforms (internet broadcast) as understood above without the necessary certificate of registration is a criminal offence punishable by a fine not exceeding M50,000.

An innocent “happy emoji” uploaded on a social media platform will, on the basis of the Draft Rules 2020, render the internet user amenable to criminal prosecution and hefty fine aforesaid. Second, the LCA can impose the array of penalties in terms of section 47(1) of Act 2012, which penalties may include imposition of financial penalties on the certificate holder or the suspension or revocation of the certificate by the LCA.

The consequences are that from the date of such suspension or revocation, the internet user may no longer generate any information to be posted on the public space offered by the internet.

Finally, from the operation of Draft Rules 2020, or 6 months from their effective date, any person who remains uncertificated by LCA will be legally barred from publishing or uploading any material on the internet (within the meaning of the Draft Rules 202 as extrapolated above) or making a comment on social media platforms without becoming a sure candidate at the receiving end of the wrath of the LCA.

The Draft Rules 2020 will certainly become draconian instrument in the hands of the LCA for muzzling the entire nation. As such they are a relic of anti-democratic regimes picked from the library of the antiquarian.

While Act 2012 (section 5(2)) and Draft Rules 2020 may be necessary measures to deal with the pressing digital era challenges presented by the information super highway, the Draft Rules 2020 fail to pass the proportionality test as there exists alternative less restrictive or intrusive means to deal with these challenges as we will demonstrate below. NW

Tekane Maqakachane and Katleho Nyabela are practising advocates of the courts of Lesotho. This is part two of their submission to the Lesotho Communications Authority (LCA) regarding the proposed promulgation of the LCA (Internet Broadcasting) Rules, 2020. Read part one here.

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