How cybercrimes law could better serve the purpose in digital world

“Ummm… a car full of policemen just pulled up”, whispered a breathless colleague. I don’t think she expected that information to be greeted with a smile. So, began a collaborative event organised by Twaweza and ‘Making All Voices Count’ titled ‘Are you a Cybercriminal? Data, myths and ideas around the Cybercrimes Act, 2015.

We wanted to have an open conversation, free from accusations and emotions that have characterised debate around this law. Senior officials from the Police Force and the Tanzania Communications Regulatory Authority (TCRA) came to be part of the discussion.

The Cybercrimes Act, 2015 had contentious beginnings and has continued to be a sore spot between activists and authorities. It was passed at midnight under a certificate of urgency, a few months before the 2015 General Election.

A certificate of urgency in Parliament is supposed to be used for emergencies such as natural disasters to allow Parliament to push through legislation for addressing national crises. Passing other laws in a short time-frame squeezes opportunities for public participation and input. It became operational without any regulations, almost immediately.

However, the origins of the law and its intent, are largely not malicious. The Act allows police officers and courts of law to deal with new types of crime and process new kinds of evidence in a digital environment.

Stealing provides a case in point: traditionally, to ‘prove’ that theft actually took place, the victim must show that the item stolen is no longer in their possession and that they can no longer enjoy its use. In a digital world with endless copying capacity, criteria for defining this crime must change.

Another bone of contention emerges around the mandate given to police officers in the law. Although many have decried intrusive search and seizure powers given to fairly junior police officers in the Cybercrimes Act, the Criminal Procedures Act, 1985 affords the same power to the same rank of officer.

While there is something distasteful in enacting new laws, which grant these types of arbitrary powers, we cannot argue that in this dimension, the Cybercrimes Act goes beyond what already exists.

Officials were also keen to point out that the much-maligned Section 16 of the law, which criminalises the publication of ‘false’ information, was merely a safeguard, that meeting the criteria for prosecution and conviction would be almost impossible.

However, there remains a wide range of material than can be portrayed as “false, deceptive, misleading or inaccurate” – no qualifications are introduced about intention or awareness and the penalties for transgression are harsh: three million shillings and/or six months in jail. One participant put it nicely: “we are criminalising gossip”.

The fact that those cases under Section 16 are well-publicised cases under the Act only serves to make people cautious, to be silent in order to be safe.

Encouragingly, a TCRA official was keen to emphasise that they were open to receiving recommendations on the amendment of the law, providing a glimmer of hope on this contentious clause.

It is true that there is something about the apparent anonymity afforded by online conversations that does make people forget some of their basic etiquette. Some courses in ‘online civility’ might therefore be required. But the criminalisation of rude or insulting behaviour online does not seem to be serving any higher national interest. So, the open door offered by TCRA allows space to reduce some of the controversy in this law and bring it in line with international norms and principles on the type of content that should be regulated in this way.

There are also questions around the capacity of those who are meant to implement, use or benefit from this law. The police only investigate cases when complaints are raised. There is no indication that they can monitor or are monitoring online content – for false information, for defamation, for online harassment or pornography. There was even an admission that understanding of this law among police officers is low.

Citizens themselves have barely registered this law’s existence. Only 2 per cent of them are aware of it and can explain it (Sauti za Wananchi). So, the law cannot usefully serve to protect citizens online and they are unlikely to even know to report offences against them.

Similarly, media outlets are unclear on what content this law permits and forbids online. Yet, the media is supposed to be the bridge between citizens and authorities, especially in terms of information – assuring clarity around the law and publicising its benefits as well as challenges. It was abundantly clear that there are real obstacles to them playing this role, both due to their own capacity constraints and the type of information that is being given to them.

In a positive step forward, the day before the dialogue, the police released data on alleged cybercrime cases since 2015. This type of proactive outreach and engagement with the media and therefore citizens can help alleviate some of the negative perceptions around this Act.

Data shows that among the 9,441 reported cases of cybercrimes in 2016, a total of 911 cases were for abusive language and 4,141 were for theft.

Already we can see that the sense that this law is being used purely for political charges is unfair.

During the event the police spokesperson also offered to make himself available to the media regularly to answer questions and provide information. Again this helps to bridge the capacity and knowledge gaps among media and ultimately, ordinary citizens.

Open conversations like this can help bring perspectives closer together, and opposing sides to see each other’s’ point of view. For every point made by activists, the authorities had a response and a further challenge to raise.

Overall, the Cybercrimes Act criminalises opinion in a way that is incompatible with democratic ideals.

But engaging with those responsible for implementing and overseeing it might help work through these issues together so that we can still protect citizens and authorities from the very real threats presented by the digital world we live in while continuing to embody Tanzania’s values of freedom and unity.

The author is senior communications adviser at Twaweza