Justices Chan Kan Cheong and Gunesh-Balaghee have delivered a fine judgment, declaring Section 46(h)(ii) of the Information and Communication Technologies Act (ICTA) of 2001 “unconstitutional” for its “lack of precision and clarity” under Section 10 of the Constitution. Section 10 (4) of the Constitution has been interpreted, the judges note, as implying the “requirement that in criminal matters any law must be formulated with sufficient precision to enable the citizen to regulate his conduct”. It is not enough for a law to state that someone has used the internet “for the purpose of causing annoyance, inconvenience or needless anxiety”. This does not meet the standard of clarity needed for criminal law offenses. The legislators should have ensured that the section has the “quality of predictability and certainty” especially when concerning the right to free expression. The judges mention that the word “annoyance”, for example, is not even defined in the ICTA. The Judges make another good point by adding, “Nor, dare we say, should the said provision have been drafted so as to criminalize online conduct when such conduct is perfectly legal in the offline world.” And that should, in our opinion in LALIT, be the litmus test.
The problem is that the normal social and legal controls over publishers in the world of the offline press are not yet at all ensured for the likes of the oligarchs who control on-line platforms – like Mark Zuckerberg of Facebook. In real-world publishing, the onus is on an editor, owner and printer of a newspaper, for example, to know who the author is of something they publish. The bosses of the publication are open to criticism in the society they live in for what they print and publish, for example, newspapers against Independence paid, and still pay, a heavy social price afterwards. And now, to come to the point of the Supreme Court Case, newspaper editors, owners, printers and journalists are liable to both criminal and civil suits for infringing criminal or civil law. On-line criminal or illegal activity, or activity that infringes ordinary civil law, is not yet in any way monitored by society. The on-line platforms have been too privatized and are now run by people with a profit-motive driving their algorithms and outside the ambit of any one nation state – even the biggest. The only thing the platforms do control, it seems, is copyright and patent infringements that harm the profits of monopoly capitalists. Otherwise, the on-line platform owners are outside all civil and criminal law for what they publish. This is the problem.
What the Mauritian government has done does not address this thorny issue at all. The issue probably needs to be addressed politically, at an international level, as the Prime Minister of New Zealand is trying to do, and as any number of Bills in the US Congress are attempting, for good and for ill, to do. Instead the Mauritian Government has introduced a new problem: giving the police additional powers over ordinary people using the internet, additional powers that can easily be used and abused politically.
The clause of ICTA that has been struck down by the Supreme Court in this judgment, had since been amended. Though the judges say that “we are not hereby making any pronouncement as to the constitutionality of the new redrafted section 46 (h)(ii), as amended by Act No 14 of 2018”, the new clause is, in our opinion, even less precise and less clear than the original. You can now risk annoying someone or inconveniencing him or her without even having the intent to do so.
The problem now, after this judgment, is that the DPP would be unlikely to bring charges under the amended act – it would be courting defeat at the Supreme Court – but the Police can still go on arresting anyone they think a Minister wants them to arrest, or anyone someone in power actually does want them to arrest. Which is the new problem that the MSM Government has introduced.
The Government should at once amend this section in line with the judgment.
We note from the judgment that there are laws in both the UK and India, which contrast sharply with the Mauritian section 46(h)(ii)’s (old and new) on two grounds. In the UK, the person causing “annoyance” etc. must both know it is not true and also do it repeatedly. In India, it is one or the other: either be known to be untrue, or be done repeatedly. Even with these extra caveats, the laws are rightly being criticized there for being, precisely, too imprecise, too vague.
So, the guilty verdict against trade unionist Vinod Seegum has been reversed. Not on the grounds of his free expression. The judges did not go into that. But on the grounds that the law under which he was charged does not fit the conditions for a criminal law to be constitutional by being too vague.
First, it is truly sad that a case like this has taken nearly 10 years to get a Supreme Court judgment. The case concerns something Mr. Seegum said in May 2012 about an executive committee meeting held in 2011! What does this kind of delay mean for society? Ten lawyers and two judges have been spending time on something relatively minor that happened a decade ago. And the important point of Constitutional Law would have helped Mauritian society make progress, had it been contained in a judgment delivered about one year after the Information was lodged, or eight or nine years ago. Instead the law has been amended for, in our opinion, the worse. Meanwhile, Mr. Seegum, a trade unionist with whom we in LALIT work, has lived 10 years of stress.
Second, the actual comments posted on the GTU Mauritius Educators’ Forum on the GTU site and Facebook wall, and which are the subject matter of the judgment, are to say the least disappointing. Inasmuch as the meaning is decipherable and not somewhat “illiterately” expressed (for the social class of teachers, especially since the appellants’ own words include class prejudice against “nenene” that “pas kone ekrir ene mot”), the words written are a mixture of vague allegations about contracts for celebratory parties around an executive Committee meeting and salacious insinuations. We are not saying this is, or should be, made illegal. Not at all. It is just genuinely regrettable. Trade unionists should not stoop to this level of petty and hurtful abuse. An apology would have been in order for this verbal abuse. But, then again, we do not know the context in the sense that those being verbally attacked may also have attacked in ways that merit an apology.
Third, we must mention the fact that, until now, there are still not “class actions”, which can be brought on Constitutional (or other issues). This means, in order to know what this law is constitutional or not, we have had to wait for someone who is a victim of an unconstitutional law, Vinod Seegum, to have to suffer through years and years of litigation to win a case – on behalf of all of us. So, we must continue to militate for “class actions”, which means one person puts the case, say to question constitutionality of a law, on behalf of us all.