Press incises ‘draconian’ cyber law

MATHATISI SEBUSI

MASERU – Criminalising the use of computer systems for communication on cyber space is reported as a challenge to journalists, especially during internet shutdowns. Prohibiting the use of computer systems to communicate has been listed among the six clauses contained by the Computer Crime and Cyber Security Bill of 2023 that threaten media freedom.  In an interview with Public Eye, Director at MISA Lesotho Lekhetho Ntsukunyane, said MISA Lesotho does not have a problem with the Bill, but is concerned about some of its sections that not only restrict journalists from performing their work freely but also violate their privacy and freedom of expression.

Talking to Section 38(1) of the Bill, Ntsukunyane said as much MISA has no problem with the section and even appreciates it as it will, among others, curb criminal activities of people who hide behind journalism to share unlawful information and misinformation, some of its provisions violate privacy of journalists and might put their lives in danger if not carefully looked into. “We have no problem with Section 8(1) of the Bill as it clearly states that VPN and other computer systems cannot be used by a person to transmit unlawful messages with intend to mislead and deceive.

“We as journalists do lawful work and can use VPN every time we see fit not only during internet shut downs. The problem comes in when the section demands us to make public our source of information as that violate our privacy,” he said. As per provisions of Section 38(i) of the Computer Crime and Cyber Security Bill of 2023, use of computer systems including VPN to ensure communications on cyber space is an offense liable for imprisonment.

Section 38(i) of  the Bill reads: “A person who, intentionally without lawful excuse or justification uses computer systems to relay or retransmit multiple electronic  messages, with the intend to deceive or mislead, or uses any electronic device that does not reflect the origin of such message, or materialistically falsifies header information in multiple electronic messages and intentionally initiates the transmission of such messages, commits an offense and liable, on conviction  to imprisonment for a term not exceeding 10 years or a fine not exceeding M5 million or both.”

In an effort to twist government’s arm to review and delete some sections in Bill and ensure that it does not get enacted containing the clauses that threaten media freedom and undermine advocacy work by civil organisations, the media fraternity and civil society groups have partnered and are advocating for revision of the Bill with the message “Do not pass the Bill with six specific clauses that threaten media freedom.”

The partners advocating for revision of the Bill include MNN Centre for Investigative Journalism, MISA- Lesotho, Development for Peace Education, Transformation Resource Centre (TRC) and the Lesotho Council of Non-Governmental Organisations. The team has collaboratively presented their stand before the Ministry of Information, Communications, Science, Technology and Innovation arguing that the said sections of the Bill be removed and call for their deletion and revision of others.

An investigative journalist from the MNN Centre for Investigative Journalism, ’Matiisetso Mosala, told this publication that they want some sections rewritten as they are too broad in their wording with regard to the interpretation and meaning. As a result, those parts target journalists and seek to undermine investigative journalism while also threatening advocacy work by civil society organisations.

Mosala said at the meeting the team had with the ministry, Principal Secretary in the communications ministry reasoned that the Bill should be taken in the spirit that it was intended, that is, combatting cybercrime.

She, however, stated that they are against this and cannot go by the spirit as that opens room for criminalization of journalism and advocacy work. Also of concern to the advocacy team is Section 24(2) of the Bill which they say interferes with data. The Section reads that “A person who intentionally and without lawful excuse – communicates, discloses or transmits any computer data, program, access code or command to any person not authorized to access computer data, program, code of command; commits an offense and is liable, on conviction, to a fine not exceeding M5 000 000 or imprisonment not exceeding 10 years or both.”

Mosala further articulated that Section 26 which talks on data espionage, Section 38(1) which talks on unsolicited messages, Section 39 which demands disclosure of details of investigations and Section 43 which criminalises defamation needs to either be reviewed or cancelled. Section 39 of the Bill notes that a person who receives an order to a cybercrime investigation that explicitly stipulates that confidentiality is to be maintained, or such obligation is to state by law, and intentionally without lawful excuse discloses, commits an offence and is liable, on conviction, to imprisonment for a term not exceeding seven years or a fine not exceeding M2 500 000 or both.

Section 43 reads: “A person who publishes information or data presented in a picture, text, symbol, or any form of computer system knowing that such information or data is false, deceptive, misleading, or inaccurate and with the intent to threaten, abuse, insult, mislead or deceive the public or conceals commission of such offence, commits an offence liable on conviction, to a fine not exceeding M500 000 or imprisonment for a term not exceeding five years or both.”

“We are also concerned with Section 59 of the Bill which gives authority to law enforcement officers to search and seize property when they see fit,” she said.

As an advocacy partner,  speaking at the 75th Ordinary Session of the African Commission on Human and People’s Right (ACHPR), Advocate Mokitimi Tšosane on behalf of the TRC, presented human rights issues around the Computer Crimes and Cybersecurity Bill and recommended its review by government, considering comments received from all stakeholders including the public and private sector as well as the legal profession, academia and information security practitioners in line with Section 20(a) of the constitution.

Tšosane said that the Computer Crimes and Cybersecurity Bill has an element that justifies overreach of enforcement powers, suffocating essence of a responsive democracy including freedom of expression and speech, among others. “As we celebrate 30 years of the democratic constitution, it is with great concern that there is, lurking in our midst, the Computer Crimes and Cybersecurity Bill which has elements that justify overreach of enforcement powers suffocating the very essence of a responsive democracy – freedom of expression and speech and the right to be free from intrusion and interference by the state and others deriving from the right to privacy.

“In the Bill, the government risks excluding the general public from the greater information society in this information era. The Bill encompasses sections meant to undermine and erode the right to privacy, freedom from arbitrary search and seizure of property, freedom of expression and access to information, and right to a fair trial. These provisions have the potential to shrink the civic, media and political spaces,” Tšosane noted.

Tšosane, therefore, recommended the government to ensure that sections meant to undermine human rights mentioned be deleted entirely and also ensure that the cybersecurity regulation is informed by the revised principles of the ACHPR declaration on freedom of expression and access to information which recognises the internet as a right.

He further articulated that it is important that the cyber Bill complies with the African Union Convention on cyber security and personal data protection. “Ensure that media is free and secure to ensure that media can play a role in promoting sustainable growth and regional integration,” Tšosane recommended. Principal Secretary in Ministry of Information Communications Science and Innovation, Lira Moeti, in an interview with this reporter said he is still waiting for a report from civic organisations and media articulating that on the last meeting they had, they could not reach any agreement with regards to interpretations of the sections in question.

“Those people did not understand the difference between data and information. It was only then that we explained to them that information is processed information while data is unprocessed,” he said.  He stated, however, that the Bill has been submitted to the King for Royal Assent, articulating that if there will be need for revision of some sections, these will be done through an amendment.

“Again these people who are complaining were consulted during drafting of this Bill. Why are they only coming forward now? We cannot hold the country at ransom just because some guy in the media is not happy,” he said.