Mauritius: ICT Act - How the government is taking another shot at censoring social media

The Information and Communication Technologies Authority (ICTA) has released a consultation document about the government's plans to give it more power to censor social media, naming Facebook specifically in the document. Here is why the plan is part of an older strategy to clamp down on the internet and why its claims that this is about cybercrime - rather than censorship - are not convincing.

The strategy

The document released by the Information and Communication Technologies Authority (ICTA) seeks to set up a National Digital Ethics Committee (NDEC) with an enforcement unit empowered to take down and censor social media posts. To make its plan work, the document proposes allowing the government to set up a proxy "to segregate from all incoming and outgoing internet traffic in Mauritius, social media traffic, which will then need to be decrypted, re-encrypted and archived for inspection purposes as and when required".

The plan, the document argues, will help fight cybercrime in social media by allowing the government to retain a record of social media posts and track down who posted them. Governments wanting a measure of control over new communication platforms is nothing new.

Back in the early 1990s, the US government wanted telecom firms to allow them to eavesdrop on mobile phones by inserting chips in them accessible to law enforcement in the name of national security. By 1996, that plan was abandoned.

Now its social media and governments across the globe have generally looked to three strategies of trying to control social media. The first is by simply blocking off social media sites (or the internet entirely).

This has been done in states such as Uganda, Congo-Brazzaville and Chad (particularly during elections or times of unrest). But it's not just Africa that's guilty of that; according to the Internet Shutdown Tracker, India shut down the internet at various parts of the country no less than 106 times just in 2019, topping the global list in internet shutdowns.

Pressure social media companies

The second strategy is to pressure social media companies themselves to censor at the behest of governments. In 2018 Germany introduced a law mandating social media firms to take down illegal content within 24 hours, as did Australia in April 2019. The European Union is currently in the midst of harmonizing laws across its member-states to tackle copyright infringement on social media. In January this year, Russia passed a law forcing social media companies to censor content deemed illegal by the government.

The third approach is to set up regulatory agencies to curb social media, this is the case in the UK, France and India, each of which is in the midst of setting up such bodies.

What the ICTA is proposing falls within this latter category of strategies. But it goes further, the proposal allow ICTA itself to take down social media posts. "In other states the debate on this is still raging and has been for years, so how can Mauritius just decide in 20 days, the middle of a pandemic, on how best to regulate social media?" asks Rajen Narsinghen, senior legal lecturer at the University of Mauritius.

Except of course, that the idea of giving the government the power to decide what does, or does not, appear on social media is not as new as all that.

Old wine, new document

The ICTA document is neither new nor shocking. But rather just the latest attempt in a long-term effort by the government to clamp down on social media. Starting in 2017, the government toyed with the idea of giving itself the power to ban websites and social media posts by amending current Computer Misuse and Cybercrime Act (CMCA).

The drafting instructions to the Attorney General's Office were even put up on the ICT Ministry's website. The rationale was to clamp down on fake news online. The problem was that the plan was derailed after the Law Reform Commission in September 2018 rejected the idea.

While it called for tightening specific laws dealing with specific cybercrimes, regarding giving the power to the government to determine what and what was not fake news (and what could be published online) it had this to say; "The main danger to enact such legislation is that it poses a threat to freedom of expression, as it can be used, among other things, to gag dissenting voices. Indeed, decreeing a legal duty of "truth" would create a dangerous instrument of control journalistic activities; allowing public officials to decide what amounts to truth is equivalent to accepting that the forces in power have a right to silence views they disagree with, or beliefs that they do not share."

The LRC has reason to be wary. In June that same year, the UN's Office of the High Commissioner for Human Rights stated that, "Encryption establishes, among other things, a measure of privacy that enables individuals to search the web, develop opinions and access information online. It may secure the traffic of emails, instant messages and other modes of digital communication so that individuals may express themselves freely".

Any interference in such communications, the UN added, should only be done on a case-by-case basis and only when ordered by a court. A far cry from the blanket powers the ICTA is looking to give itself now.

In 2018, the government had to settle for watering down the provisions of the Information and Communication Technologies Act by amending it by widening what constituted a cybercrime ('causing distress') and reversing the burden of proof on those posting online to prove their innocence making prosecuting cybercrimes easier.

This is to say that ICTA's latest proposals are just another episode in the ever-tightening grip of the government over social media.

ICTA's credibility

One of the biggest problems with the ICTA's proposals is that the regulator has precious little credibility when it comes to deciding what is, and is not, cybercrime and prosecuting it. In the Rachna Seenauth case in April last year, for example, the secretary of an ex-President was arrested for sharing a joke on social media poking fun at Prime Minister Pravind Jugnauth.

That was on a complaint by Kaushik Jadunundun, then a politically appointed board member of ICTA who boasted on Facebook that he did it "for my boss and my country". That was before Jadunundun himself was arrested and forced to leave the ICTA, board after he himself was accused of defamatory posts. Seenauth's affidavit notes that she received a message from Dick Ng Sui Wa, the Chairman of ICTA telling her that her post was "not alright".

Also arrested last year for poking fun at the prime minister was ex-ambassador Ravin Lochun. There is an irony here, the government that now looks to squeeze out fake news, itself benefited from doctored videos in the last election campaign and a vast social media campaign against its opponents. "There are double standards here," says Narsinghen.

Is it about law and order?

ICTA reassured everybody in a communique yesterday that its proposals would only affect public messaging platforms such as Facebook. In its consultation document it listed statistics about cybercrime: 2,051 incidents reported between January 2020 and January 2021.

One reason these proposals are necessary, ICTA insisted was because, "in Mauritius, when offensive and abusive online content is posted in the native Kreol language, in the majority of cases, complaints made by local authorities to the social media administrators remain unattended or are not addressed in a timely manner." In other words, social media companies are unwilling or unable to help stamp out cybercrime on social, forcing ICTA to give itself the power to do so.

But how much of this is about cybercrime really? What kind of requests about cybercrime from the Mauritian government have these social media companies been ignoring? Luckily, they too publish figures.

According to Google's Transparency Report, since 2016 it has received 13 requests from Mauritius, eight of which were from the government, to take down 29 web pages, out of which no less than 20 were for allegedly criticizing the government or for defaming government figures. Only one had anything to do with actual cybercrime, in this case, copyright infringement. Six of these were videos on social media.

Posts criticizing the government

Let's take Facebook. According to its own reports, between 2017 and 2019 the Mauritian government demanded information on seven user accounts. Once again, for posts criticizing the government or government figures. None of these requests were honored. At least according to Google and Facebook.

So if the ICTA is complaining about Facebook and social media companies not doing enough to take down cybercrime, that's simply because, according to these social media companies, the Mauritian government has not been approaching them to tackle cybercrime, but simply for silencing government critics.

"ICTA is going to open a pandora's box" says Yann Hookoomsing, of the environmental activism group AKNL, "can you imagine what would have happened to the Pomponette issue if there was no social media? Or Wakashio, without social media nobody would have known what was going on and civil society would not have been mobilized".

For him the dangers are clear: "For six years now the government has been making it harder to fight controversial building projects impacting the environment, leaving recourse only to the Supreme Court". He adds that the decision to de-proclaim Pomponette beach has been going since 2016 at court and may only now start formal hearings. "Social media is one of the key tools left for environmental rights, which have been shrinking in recent years, we need it to raise consciousness and to communicate with outside bodies and other environment NGOs. They are opening the door to something dangerous here".

This ICTA proposal is appearing after 2020 saw the government face a series of social media-fuelled protests over its mishandling of Covid-19, Wakashio and the Kistnen case. This is the key context here.

The problem is that the government can easily transform ICTA's proposals into reality. The ICTA proposal says simply it can all be done by amending its enabling legislation. "They can pass it as an ordinary bill, so they just need a simple majority in parliament, which they have" argues Narsinghen,

"Of course given its implications it can be challenged in court for breaching constitutional protections to freedom or expression and the right to privacy". In lieu of a lengthy court case and a lockdown, ironically, the only way to challenge ICTA's proposals is online. Precisely the type of activity the proposals from ICTA are putting in peril.

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