NewZimbabwe.com has invited Mr. Vengai Madzima, the Senior Partner at Madzima Chidyausiku Museta Legal Practitioners (MCM Legal) to discuss the laws governing social media use in Zimbabwe.
Reporter: Welcome back Mr. Madzima, this week we want to discuss social media laws. The Minister of Information, Publicity and Broadcasting Services Dr. Jenfan Muswere at the 'Minister meet the Media' event stated that the government is drafting a new social media legislation to regulate social media. What laws are currently regulating social media?
VM: Thank you. If my memory serves me right, one of the aims of that legislation is to address the issue of "ghost accounts". As the legislation has not been introduced yet, I will focus on the current legal position.
To your question on how social media is currently regulated, we have to start at the constitution level. Our constitution in Zimbabwe guarantees everyone's right to propagate and express their opinions and beliefs whether in private or in public, individually or collectively. This right extends to any individual's ability to freely express or disseminate ideas through media, in this particular case, social media.
Having said that, all rights have qualifications or limitations, otherwise they will end up infringing on the other rights enjoyed by people in a democratic community. The same constitution then limits this right to freely express opinions or ideas by the media if the exercise of such right to express ideas may incite violence or be injurious to another person's reputation or dignity. The requirement in our law for injury to reputation also considers whether there was malice. Going back to the limitations, the constitution also limits the right of expression where it breaches someone else's right to privacy or it amounts to hate speech
Reporter: Some people argue that these limitations are wide in interpretation and have been used to infringe on people's rights by the State, calling it 'subversive content'
VM: The laws governing what you are referring to as subversive content is found mainly in our Criminal Law (Codification and Reform) Act and our Cyber and Data Protection Act. There have been allegations of abuse of this wide interpretation, it really depends on which side of the table you are sitting and whose argument you are listening to.
Subversive content is, in general terms, material that threatens state authority or incites public disorder. This material can include publishing 'false statements prejudicial to the state,' or transmitting messages that 'incite violence or damage to property.'
There has been some high-profile cases involving such allegations and some legal critics argue that words like 'prejudicial' are open to selective enforcement. I suppose these are some of the issues that will be clarified by the proposed new social media laws.
Reporter: What is the position when it comes to defaming people using social media?
VM: Defamation in terms of our laws has criminal and civil implications.
Our Criminal Law Code still retains an imprisonment option when one publishes false information that is harmful to another's reputation. The court also considers the issue of malice when the information was published in weighing the appropriate punishment. That is whether or not the motivation for the statement was malicious.
The injured person being the person who has been defamed can also approach our civil courts with a claim for defamation which can include damages. The defamed person will need to prove that the statement was false, malicious and reckless and has reduced their standing in society.
Several cases have been brought in our civil courts with a number being successful after having met the criteria set to qualify for defamation.
Reporter: We have seen a number of prosecutions that include the leaking of 'nudes' or 'sex tapes' by ex-lovers?
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VM: There have been a number of cases alleging 'revenge' leaks of nude images or video's of a sexual nature involving ex-lovers. Our censorship laws prohibit the distribution of indecent material or material regarded as obscene. The qualification here is whether the material distributed offends public morality.
Further, our Cyber and Data Protection laws criminalize posting or sharing nudes or videos of a sexual nature involving another, which in this example is an ex-lover, without their consent. The penalties from such posts may even include imprisonment.
Thank you, Mr. Madzima we have run out of time.
VM: Thank you.
These discussions are of a general nature and those seeking specific legal advice should contact their lawyer.
You can contact Vengai Madzima on vengai@mcmlegal.co.zw or at www.mcmlegal.co.zw.
