ARTICLE 19 is concerned by a series of new laws adopted in Kenya, Tanzania and Uganda that have far-reaching consequences for freedom of expression online. In Uganda, the national parliament has passed a law that imposes a tax on the use of social media platforms. In Tanzania and Kenya, the governments have issued rules that require bloggers and other content producers to obtain a licence before posting their content on online platforms such as Facebook, Youtube, Twitter or Instagram. Tanzania, Uganda and Kenya initiated a trend that other countries are unfortunately following. Currently, Zambia, Rwanda and Democratic Republic of Congo are discussing proposals in the same direction. ARTICLE 19 calls on all countries concerned to repeal or withdraw these laws and regulations.
Tax on Over-The-Top (OTTs) services
On 30 May 2018, the Ugandan parliament passed the Excise Duty (Amendment) Bill 2018, which, among others, provides that “A telecommunication service operator providing data used for accessing over the top services is liable to account and pay excise duty on the access to over the top services.” OTTs are applications and services, which are accessible over the Internet and ride on Operators’ networks offering internet access services, such as social networks, search engines or amateur video aggregation sites. According to this Bill, OTT services, that commonly include WhatsApp, Facebook or Twitter, will be subject to a tax duty of UGX 200 (USD 0.05) per user per day of access.
Although it is not yet clear how the tax will be collected, it will disproportionately and negatively impact the ability of users in Uganda to gain affordable access to the internet, and thus unduly restricts their right to freedom of expression. This is particularly true for low-income citizens, for whom purchasing a 1GB of data per month will cost nearly 40% of their average monthly income (while it is about 10% without the tax).
The government has seemingly put forward two main justifications for the legislative change. First, it has argued that the new tax would contribute to create a level playing field among telecommunications (telcos) and OTTs, while bringing tax revenue to the State that would be invested in more reliable infrastructure to the benefits of citizens. Second, the proposed measure would favour local over international content. Nevertheless, these arguments are difficult to sustain: most likely, OTTs will pass the tax burden on to users; in addition, there are no guarantees that the additional revenue will be used for the promised purposes. Moreover, these arguments fail to take into account that the majority of local users’ access the internet and share their content, via social media platforms.
New licensing requirements for bloggers
In March 2018, all three countries enacted regulations that present a serious barrier to freedom of expression online:
- The Government of Tanzania adopted new online content regulations (the Regulations), which ARTICLE 19 reviewed last April. In our legal analysis, we raised numerous concerns, including overbroad content restrictions, licensing requirements for bloggers and lack of due process safeguards in the content removal procedure. In particular, bloggers are required under the new rules to apply for a licence and pay unreasonably high fees for it, up to 2,100,000 Tanzanian Schilling, roughly $930. Considering that the average annual income per capita is under $900, the fee is prohibitive for the majority of citizens. A group of bloggers and activists challenged the rule, obtaining a favourable injunction last month, but the High Court’s final judgment rejected their claims as a result of procedural technicalities. The state-run Tanzania Communications Regulatory Authority (TCRA) has started enforcing the law, mandating bloggers to obtain licences by 15 June, and forcing those that do not have one to shut down.
- The Kenya Film and Classification Board (KFCB) issued a notice stating that citizens would require a license in order to be able to post videos over the internet. The rule applies to any video, including those recorded using mobile phones, as long as it is meant for public exhibition, which includes publishing the videos on social media platforms like Youtube, Facebook, Instagram and similar. The initiative has been justified on the ground that it would protect national security from illegal filming activities and would provide the government with additional revenue. Nevertheless, the procedure to acquire the license and the fee to be paid for it make it impossible, for the majority of video producers, to operate. In fact, video producers are obliged to pay an annual registration fee of Kes.12,000, a fee of Kes.5,000 for every video produced (as long as it is under 40 minutes), and a fee of Kes.1,000 for every day the video shooting lasts. This leads to a total of at least Kes 18,000 per video, while the average per capita annual income amounts to about Kes 115,000. Moreover, after the production is complete, social media users would have to send the video to KFCB for approval before publishing it.
- The Uganda Communications Commission issued a public notice establishing that “all online data communication service providers, including online publishers, online news platforms, online radio and television operators are (…) advised to apply and obtain authorisation from the Commission with immediate effect” in order to offer communications services.
Currently, Zambia, Rwanda and Democratic Republic of Congo are discussing proposals in the same direction.
The new rules significantly interfere with freedom of expression and are incompatible with international standards
ARTICLE 19 believes that these rules severely limit freedom of expression:
- In the countries in question, social media platforms represent the main channel through which people can freely express themselves, exchange opinions and ideas and get access to information. Therefore, imposing a disproportionate tax on the use of social media directly impacts the ability of citizens to exercise their freedom of expression. The same holds true for licences and authorisation requirements. If the conditions for obtaining a license or authorisation are too burdensome, their practical effect is to impede the use of social media by the majority of citizens, again depriving them of an essential channel for communications.
- We believe that licensing and registration requirements are incompatible with international standards on freedom of expression. The 2011 Joint Declaration on Freedom of Expression and the Internet by global free speech experts provides that measures such as imposing registration and other requirements on service providers are not legitimate, unless such measures conform to the three-part test on lawful restrictions of freedom of expression under international law. At most, a requirement to declare a business, rather than a requirement of registration, may be imposed. As regards the registration of bloggers, the Human Rights Committee has made it clear (in General Comment no. 34) that journalism is a function shared by many different actors, including bloggers. The Committee has also reiterated that mandatory registration of journalists is a disproportionate restriction on freedom of expression. Accordingly, the mandatory registration or licensing of bloggers is incompatible with the right to freedom of expression.
- ARTICLE 19 is also concerned that the respective legal provisions are vague with regard to the conditions for obtaining the license and no judicial review is provided. The rules do not provide sufficient details about the conditions for the granting of the license or authorisation. In fact, it is not clear whether the issuing will automatically follow the payment of the fee, or if further conditions have to be met by applicants, and in this case which ones. In other words, the vagueness of the rules might provide authorities with unlimited discretionary power while deciding whether to grant the license or authorisation. As such, the rules also fail to provide content providers with the legal certainty they need to provide their services. Nor do the rules provide for the possibility, for anyone who has been refused a license or authorisation, to apply to the courts for judicial review of the refusal decision.
These rules and the trend they represent in East Africa raise serious concerns for freedom of expression and are likely to severely restrict users’ ability to share or access information and ideas online. ARTICLE 19 calls on the governments concerned to immediately drop these proposals, and on the governments of Tanzania, Uganda and Kenya to withdraw the rules in place which seriously limit freedom of expression. We also call on the governments of Zambia, Rwanda and Democratic Republic of Congo to refrain from adopting similar legislation.