Reacting to the arrest of ex-journalist Harish Chundunsing, Labour Party leader, Navin Ramgoolam, stated that if he returned to power, one of the first things he would do is scrap recent changes made to the Information and Communication Technologies (ICT) Act. This promise is not as dramatic as it seems. This legislation has long been under a legal question mark for a couple of years now.

The promise

In reaction to the arrest of ex-journalist Harish Chundunsing, the leader of the Labour Party, Navin Ramgoolam, after a meeting with the other opposition parties in Vacoas on May 10, promised that if he returned to power, he would do away with recent amendments to social media legislation. However, this promise is less dramatic than it seems. The Information and Communication Technologies Act, in particular, has for a couple of years now been put under a legal question mark by the Supreme Court itself. In recent years, the government has embarked on a series of actions that have been criticised for clamping down on freedom of expression. Back in November 2020, it had to backtrack from plans to merge the Information and Communication Technologies Authority (ICTA) and the Independent Broadcasting Authority (IBA).

The IBA itself coming under criticism for going after private radio stations was deemed critical of the government. Then in 2021, a twin set of developments took place; the first was a document released by the ICTA that proposed to set up a proxy server to intercept social media traffic and a National Digital Ethics Committee that would have the power to take down and censor social media posts. After a firestorm of criticism from the public, global media giants such as Mozilla, Google and Facebook and even the Mauritius Banker’s Association that warned of the potential of compromising the secrecy of internet banking transactions, the government dropped the proposals in the document.

On May 25, 2021, Prime Minister Pravind Jugnauth told parliament: “This is only a consultation exercise. It is the government that will ultimately decide on the way forward, taking into account, inter alia, the public response during the consultation exercise and, amongst others, our national safety and security.” That same year, the government amended the IBA Act that tightened regulations on private radio stations and their licensing regime. The current problem, however, comes in changes to the ICT Act that the government managed to push through in 2018. “All of these things were in the same vein in which the ICT Act came about,” says lawyer Ashok Radhakissoon.

Why the ICT Act is still a problem

Part of the problem is the timing of the 2018 changes to the law. The government had tasked the Law Reform Commission (LRC) with coming up with a law to tackle what it termed to be a fake news problem on social media. However, in September 2018, the LRC rejected the idea of criminalising fake news arguing that “the main danger in enacting 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 to 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 they do not share. Such laws can preclude the discussion of ideas which challenge the norm, restraining public debate and restricting criticism of societal attitudes or of those in power. Under such laws, journalists or human rights activists could be sent to prison on accusations of disseminating untrue statements about alleged wrongdoings”. Just months after the LRC rejected the idea of turning fake news into a crime, the government announced that the LRC would work under the Attorney General’s Office and the ICT Act was amended.

What the 2018 changes to the ICT Act did was quite dramatic, effectively turning the ICT Act on its head. Under the old version of the law, to prosecute someone the state had to show that messages had been sent with the intention of causing annoyance. Under the post-2018 version, it said that any such messages will fall under the ambit of the law which “is likely” to do so. “Under the old version a person had to show that a message was annoying and a defence lawyer could try to prove how that person was not annoyed,” argues Radhakissoon, “but under the new version the onus of proof is reversed completely. Now the assumption is that the intention is there. This is a big shift in the law. In a small democracy such as ours the idea has been to improve communication, but this has only been eroded under this new law and is something that is anti-democratic”. Put simply, whereas in the old ICT Act somebody had to prove how he or she was inconvenienced or annoyed by a message on social media and prove that the person sending it did so for that purpose, under the current version post-2018, there is no need to prove that a message was sent with such an intention. On the contrary, it is the person sending a message who must prove that the message he or she sent was alright.

The other problem is that the ICTA also criminalizes ‘false’ or ‘misleading’ messages. “Someone may not have all the crucial facts, that puts a very high standard on anybody posting on social media if they want to avoid being caught by the law and charged for posting something false and misleading which causes annoyance,” says lawyer Sanjay Bhuckory, “you have to be ultra-careful not be caught under the law.” Such requirements under the current ICT Act carry an older, unpleasant whiff: back in 1985, following a recommendation made by a commission of enquiry into corruption headed by then Supreme Court judge Hurrylall Goburdhun, the then-government invented a new section in the Criminal Code ‘Abusing the Government’, which read that “any person who published or utters publicly any word or expression which imputes a fact injurious to or contemptuous or abusive of the government shall, unless he can substantiate such fact, shall commit an offense and shall be liable on a first conviction, to imprisonment for a term not exceeding three years and to pay a fine which shall not be less than Rs10,000 or more than Rs25,000”. In other words, criticizing the government or any of its ministers became a crime unless the person doing the criticism could come up with proof. The law stayed on the books until December 1990.

The constitutional conundrum increased

The biggest problem, however, and the one that makes the Seegum judgment a problem for the post-2018 version of the ICT Act is the way it has increased, not decreased, the vagueness characterizing it. If the old version of the ICT Act was deemed to be unconstitutional for including undefined terms such as ‘annoyance’, ‘distress’ or ‘anxiety’, the current version of the law has not only kept these terms in it but added yet more undefined terms such as ‘humiliation’ and ‘distress’. Rather than firming the law, what the 2018 revision of the law did was water it down still further and casting its net ever-further to potentially criminalize online activity. “The terms it refers to are very, very wide terms and subjective. The law works irrespective of whether, objectively speaking, someone has made a statement on social media which is acceptable criticism under freedom of speech and expression. Here we have a problem,” says Bhuckory.

If the Supreme Court in the Seegum case found that the older version of ICT Act was unconstitutional for being too vague, it’s unlikely to look more kindly on its post-2018 version that is even more vague and loosely constructed. That makes prosecutions under the newer version of the ICT Act a problem. The law may be on the books, but how many will lead to convictions in courts? “Indeed the Seegum judgement does open the door for a similar legal challenge to the newer ICT Act,” says Radhakissoon. Indeed, the problem has been that despite the obvious problem that the Supreme Court highlighted in the Seegum judgment and the limbo into which it has cast the post-2018 version of the ICT Act, it has yet to be amended. “We have a process to amend laws, after the court said what it said in the Seegum judgment, they should have come up with another bill to address these issues. That is long overdue,” says Bhuckory, “the problem is that this law is still on our statute books.”

While the ICT Act remains in legal limbo, uncertain of whether the post-2018 version of the ICT Act would also be struck down as unconstitutional by the courts, it continues to be used to merely harass government critics. “The police are still using it to go and get people at 4 in the morning and seize their laptops and mobile phones,” says Radhakissoon, “they are just getting carried away with that.” The need to do away with the now-legally and constitutionally questionable ICT Act is not a new problem, it is something that either the government or the opposition parties will have to grapple with and resolve at one time or another.

The Seegum judgement

The current questions hovering over the ICT Act stem from a landmark judgment that came out of the Supreme Court in 2021 in the case of education unionist Vinod Seegum. Back in 2012, Seegum was put on trial at the Intermediate Court for a series of posts he had put up on Facebook. He was prosecuted under section 46 of the pre-2018 ICT Act, which made it illegal for anyone to use an ICT device “for the purpose of causing annoyance, inconvenience or needless anxiety to any person”. What happened, Radhakissoon says, “was that he was convicted at the Intermediate Court and then the case went to the Supreme Court”. Radhakissoon had represented Seegum at the Intermediate Court trial before the case was handled by the trio of lawyers Mardemootoo, Antoine Domingue and Navin Dookhit at the Supreme Court.

In deciding the case, the Supreme Court reached for an example from the Indian Supreme Court, the case of Shreya Singhal in 2013. Singhal was being prosecuted under section 66A of India’s then-Information Technology Act 2000. In the Singhal case, the Indian Supreme Court ruled that using words like “causing annoyance or inconvenience” in social media laws was a problem and that the law “is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net”. In the Singhal case, Indian courts struck down that part of Indian law as unconstitutional for being too vague.

Taking its cue from the Singhal case in India, the Mauritian Supreme Court reached the same conclusion in the Seegum case on May 27, 2021, when it ruled that the pre-2018 version of the ICT Act was similarly unconstitutional. Referring to the old version of the ICT Act, the court said that “it certainly offers no clear distinction between a conduct which is innocuously annoying and one which is criminally reprehensible. It lacks precision and clarity and is ‘hopelessly vague’, leading it up entirely to the courts to determine which conduct is criminal on a case-to-case basis, with no discernible objective criteria, is giving a too wide discretion to the courts and creating uncertainty in the law”. The Attorney General Maneesh Gobin reacted to the Seegum judgement at the time by releasing a statement arguing that since it concerned the older version of the ICT Act – and not changes that the government had brought to it in 2018 – therefore the ICT Act as it stood was still good law.