The ICT Act has been amended, condemning any message “which is likely to cause or cause annoyance, humiliation, inconvenience, distress or anxiety to any person” and also replacing in the original Act, the words “imprisonment for a term not exceeding 5 years” by the words “penal servitude for a term not exceeding 10 years”. The amendment brought raises issues of relevance, necessity, proportionality, operability and enforcement of the legislation, and more importantly, a question arises as to its conformity with the International Covenant on Civil and Political Rights, and more specifically with Article 19 on Freedoms of opinion and expression.
Rule and exception
As a preliminary observation, it is acknowledged that the Covenant makes provisions for two areas where the freedom of opinion and expression can be restricted. These restrictions are exceptions and they relate either to respect of the rights or reputations of others or to the protection of national security or of public order or of public health or morals. However, a State cannot, by imposing restrictions, go beyond what is laid down in the Covenant and imperil the very right to freedom of opinion and expression, itself. The State cannot turn the rule into an exception, and vice-versa.
After the passage of the Act, public statements even from non-state actors have been made in favour of the amendment which have started with a claim on the exception, rather than prioritising the rule! Two public figures, the acting President and Mgr Ian Ernest in their statements as reported in the media, seem to espouse this approach. We only hope that they are not conveying through their statements that restrictions should be the rule.
Necessity and Proportionality
As per the Covenant on Civil and Political Rights, the restrictions must conform to the strict tests of necessity and proportionality, and must be directly related to the specific need for which they have been adopted. One may ask whether the sentence of penal servitude of 10 years provided for in the amendment warranted. Also, what is the ‘special need’ on which the amendment is predicated? What is it in our existing criminal and civil legislation that was missing? What is the ‘mischief’ that the ICT Act wanted to cure that was not present before the advent of the internet?
Previously, the same ‘annoyance, humiliation, inconvenience, distress or anxiety’ could have been caused via newspapers, radio, brochures, pamphlets, dazibaos, public meetings, press conferences, political addresses at religious ceremonies etc. Are we saying that for the past two centuries and until November 2018, there were no laws to deal with the issue? Why create all this furore, when the existing laws of the country already punishes insult, libel and defamation etc?
Clarity of words
After all, what do the words “annoyance, humiliation, inconvenience, distress or anxiety’ mean to the public, to the common person, to the facebooker ? These words reflect subjective appreciation: anything can cause anxiety to a person, even wishing him good luck! There is no clear meaning, there is no clear list of acts or writings that would amount to annoyance, anxiety, etc. What’s the difference between annoyance and inconvenience? Will the charge levelled against a person specifically indicate one of the five offences mentioned in the Act, to be in conformity with the “special need’ mentioned above?
The legislators could have here been guided by the Covenant. When a restriction to the freedom of opinion and expression is proposed in a law, it must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly.
In absence of precision in the words used, there is therefore a discretion which is left with those who will enforce the law. This is against the Covenant, as a law may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution. Laws must provide sufficient guidance to those charged with their execution to enable them to ascertain what sorts of expression are properly restricted and what sorts are not.
Note: to be factual, this article has, as much as possible, used the exact words contained in General comment No. 34 of the Human Rights Committee of the United Nations on Article 19 Freedoms of opinion and expression.