Kgathi’s Cyber Bullying Law: Intrusion On Privacy Rights, Freedom Of Expression?

As Minister Shaw Kgathi prepares to bring the Cybercrime Law into effect, SONNY SERITE takes a look at the hurdles this law will encounter before it can become effective.

Contrary to reports that the Minister of Justice Defence and Security Shaw Kgathi has already gazetted new legislation aimed at curbing “cyberbullying” The Botswana Gazette has learnt that the intended legislation has not reached beyond cabinet minute’s level.
The intended legislation, still to be finalised, gazetted and debated in parliament, is, according to a statement by the minister, the result of his consultations with the public in various Kgotla meetings. It is unclear what additional studies have been conducted to assess the extent of cyberbullying in Botswana, what civil society groups were engaged and how the new legislation will be implemented.
The intended legislation seeks to create a wide range of offences in broad terms that will attempt to curb “fake news”, revenge posting of nude or sexually explicit photographs and videos, “unwarranted criticism” and other forms of “cyber-bullying”.
Internationally, anti-cyber-bullying legislation has been targeted at teenagers and school goers with nominal sentences and fines in the event of a conviction.  Kgathi’s proposed legislation however, seeks to introduce prison terms of up to 5 years.
Speaking to this reporter in a brief telephone conversation on Sunday, Minister Kgathi advised that the anti-cyber-bullying legislation will be used in conjunction with the Electronic Records (Evidence) Act of 2014. The Electronic Records Act allows a party to produce evidence of electronic content by way of an Affidavit certifying that the contents of the electronic information are correct.
While both the Anti-cyber-bullying and Electronic Records Act seek to prevent and facilitate the prosecution of cybercrime, a laudable objective, the introduction of the Anti-Cyberbullying Legislation in its proposed vague and broad terms will face a series of constitutional challenges, according to legal experts.
The first hurdle the legislation will face will be a practical issue of whether courts will have the jurisdiction to try the offence. As highlighted by a lawyer, in order for the court to have jurisdiction to try a matter, the court has to consider where the offence was committed. Under the common law the court is conferred with jurisdiction by virtue of where the crime was committed. Facebook and other social media companies house their servers predominantly in the United States, though some have servers in India and Malaysia in massive data centres. It is from such data centres that the content of individual user’s posts is published from and retained. The “crime” would, unless the legislations stipulates to the contrary, be committed in the country hosting the data server.
Additional concerns would arise that by prohibiting disparaging speech directed at a person’s “values,” the legislations strikes at the very essence of free speech; commentary on moral and political discourse. Courts have established that though speech on people’s “values” may, it should not become a source for its prohibition, but to the contrary it is the reason for its protection: “A principal function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger,’” the US Supreme Court has ruled.
Anti-cyber-bullying laws, have failed to pass constitutional challenge based not only due to their vagueness but also due to being overbroad because they proscribe protected speech as well as unprotected speech.
Facebook and other social media houses jealously guard the privacy of their users. Their policies include governments having to obtain a warrant from court to be availed access to the user’s private information. Even in such instances, Facebook, for example, still retains the right to refuse if the warrant was issued under a law that does not have a comparative legislation in the United States.
Under current procedures in Botswana, the prosecuting authority does not serve interested parties with court papers either before or after having obtained a warrant.
Internationally Human Rights Lawyers have acknowledged the need to curb cyber-bullying but have raised concern that in countries with fragile democracy institutions such legislation will be used to curb freedom of speech and violate social media user’s right to privacy.