Christina Meetoo

On Media, Society and Mauritius

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Démocratie augmentée pour une transition écologique juste

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Séminaire virtuel interdisciplinaire
Approches sociologique, de sciences politiques et philosophique

Par le Professeur Bernard REBER
Centre National de la Recherche Scientifique (CNRS) et Sciences PO, Paris, France

S’inscrire sur: https://bit.ly/demo-eco

3 sessions de 3h30
28 juin, 12 juillet et 26 juillet 2022
De 16h à 19h30

Visant un public large : enseignants-chercheurs, étudiants, société civile organisée, fonctionnaires, syndicats, porteurs d’enjeux, industriels, citoyens…

Organisé par L’Université de Maurice
Avec le soutien de la Virtual Mobility Scheme de la Higher Education Commission
Contact: Christina Chan-Meetoo –

Description:

La transition écologique nécessaire pour réussir à faire face au réchauffement climatique requiert de faire preuve de beaucoup d’imagination démocratique et institutionnelle. En effet, il faut pouvoir mobiliser au bon niveau toutes les responsabilités, individuelles et collectives. Si ces responsabilités sont communes, selon les acteurs, elles sont également différentes. D’où le défi de savoir combiner changements de comportements individuels sur tous les plans et modes de production et de régulation collectifs, à tous les échelons territoriaux, du local aux Conférences des nations unies sur les changements climatiques (COP).

Les assemblées citoyennes pour le climat, associant de diverses manières citoyens ordinaires, experts et décideurs ont vu le jour ces dernières années. Ce fut le cas par exemple avec la Convention française citoyenne pour le climat (2019-2021), à la suite du Grand débat national provoqué par la crise des gilets jaunes, suite à une augmentation de taxe sur les carburants.

L’enjeu de ce séminaire est de bien comprendre les exigences pratiques et théoriques de ces modes de participation et de délibération innovants. Il offre à la fois le recul historique et comparatif d’expériences tenues dans diverses parties du monde. Allant au-delà de la description, il inscrit ces expériences au sein des réflexions philosophiques sur la démocratie délibérative, les rapports entre sciences et société ou encore l’innovation et la recherche responsables.

Les cas traités et les choix de gouvernance et d’institutionnalisation de ces modes de participation seront mis à l’épreuve de défis mauriciens. La République de Maurice pourrait-elle innover de façon originale en ces matières pour répondre à sa transition écologique, tirant parti de son pluralisme ?

On the subject of Media Regulation in Mauritius

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Media regulation was debated on 17th November on an MBC TV show called Focus with former journalist and editor-in-chief of L’express-Dimanche, Rabin Bhujun (now director of a company that trains company executives on how to deal with the media), former editor-in-chief of L’express, Raj Meetarbhan (now Senior Adviser at PMO) and Abadallah Goollamallee, a CTI lecturer.

I was asked by MBC journalist Kavin Tapesar for a pre-recorded interview to be included as an insert in the show but it was too short-noticed given that I had much work to do at the time.

Watching the replay of the show prompted me to read again my past papers on the topic from 2011 and 2013. Basically, no progress has been made so far in Mauritius on this issue and what I wrote at the time is still valid.

Here are the papers for those who wish to read through:

The two commissioned reports which were cited during the show are:

  1. A Press Council for Mauritius? Safeguarding Freedom, Responsibility and Redress for Mauritius and its Media by Mr Kenneth Morgan, former member of the UK Press Council, which was commissioned by the Media Trust in 1998.
  2. Media Law and Ethics in Mauritius. Preliminary Report by Prof Geoffrey Robertson QC, which was commissioned by the government in 2013.

The Robertson report was an extensive 80-page report so people tend to forget that it was only a preliminary version which was released in April 2013. As he wrote in his address to the then PM Navin Ramgoolam in his preamble, his idea was to come back later in the year and have discussions that would help fine-tune his recommendations. He stated that he wanted broad consultations that would have to include multiple stakeholders (such as “media, lawyers and judges, MPs, civil society and members of the public”). This is what he wrote:
It is a large project, but I have done my best to present these provisional conclusions in non-technical language and at reasonable length. They are not set in stone. I hope that the publication of the report will be followed by a period of discussion and debate over its proposals, amongst the media, lawyers and judges, MPs, civil society and members of the public. I will be happy to return later in the year, after considering all responses, to make a final set of legislative proposals.
Unfortunately, no final version was made public as the government probably didn’t like the content of the preliminary report given that they had only envisaged the setting up of a regulatory system for the media whereas the consultant went well beyond this single requirement (more details below). The PTr-led government was very unhappy with the press at the time and regularly alluded to the need to set up a Media Commission to tighten control. This is not the first time a party in power has expressed strong dissatisfaction and threatened to introduce stricter regulations for the media (recall the MMM which was in government after liberalisation of airwaves in 2002) and it is certainly not the last (including the current MSM-led government). Suffice to say that all parties have the same critical attitude to the press when in power and then, magically, become the strongest defenders of the media when in opposition (before becoming staunch critics again when getting back in power, which invariably happens due to the “alternance” in our political configurations).

Interestingly, our local media have rarely (not to say never) advocated for the release of a final version of the Robertson report up to now, nor for its application, as there are some elements which they probably didn’t like as well. They have mostly tended to focus only on the introduction of Freedom of Information legislation albeit without any in-depth reference to the details of such a legislation, using the claim only as a cry of rally against government. Status quo  thus seemed preferred by them with regards to media regulation and laws impacting their operations.

In essence, Robertson made three broad proposals which would have to be introduced in a comprehensive manner for a more balanced and healthy media environment in Mauritius:
  • Review laws that impact media operations such as sedition, defamation, publising false news, contempt of court [an interesting case in this respect being the Dooharika (may he RIP) case where Privy Council overruled a judgement against him and he was represented by Robertson himself], all of which date back to colonial times with sometimes obsolete provisions or fines.
  • Introduce Freedom of Information legislation to ensure transparency and facilitate the work of journalists (and thus review the Official Secrets Act).
  • Introduce media regulation through a national code of ethics for the media and also an institution (a Media Commission) to oversee its application (he suggested revising the mandate of the Media Trust as a possible option).

Rodertson also put emphasis on the need for a comprehensive approach rather than a pieceameal reform:

In my lecture on Developments in Media Law, delivered in the Sir Harilal Vaghjee Memorial Hall, I expressed the view that Mauritius would benefit from a new and comprehensive media law rather than piecemeal reform.

The contents of the report are part of the topics which I teach in a module called Media and Ethics in the Journalism course at the University of Mauritius.

A Supreme Court Judgement deems the offence of causing annoyance in the ICT Act to be “hopelessly vague”

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On 27 May 2021, Supreme Court judges D. Chan Kan Cheong and K.D. Gunesh-Balaghee delivered their judgement in the case of SEEGUM J v THE STATE OF MAURITIUS 2021 SCJ 162.

Seegum had been prosecuted before the Intermediate Court on 5 counts for the offence of “using an information and communication service for the purpose of causing annoyance”, in breach of sections 46(h)(ii)  and 47 of the ACT Act. Two counts were dismissed and the trial had proceeded  on three counts all related to “wilfully and unlawfully using an information and communication service for the purpose of causing annoyance to another person” on a Facebook forum under Section 46(h)(ii) of the ICTA, which read as follows at the time of the alledged offence:

“46. Offences Any person who -(…)
(h) uses an information and communication service, including telecommunication service, –
(ii) for the purpose of causing annoyance, inconvenience or needless anxiety to any person;
(…)
shall commit an offence.”

Seegum had been found guilty by the Intermediate Court and fined to Rs 15,000 for each of the 3 counts (total of Rs 45,000). He appealed against the judgement on several grounds, one of them being that “that section 46(h)(ii) of the ICTA breaches section 10(4) of the Constitution”. That section of the Constitution states that:

(4) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence that is  severer in degree or description than the maximum penalty that might have imposed for that offence at the time when it was committed.

Seegum’s counsel argued that “causing annoyance” suffers from vagueness in the formulation of the ICT Act and causes uncertainty. It does not allow the ordinary citizen to determine which conduct may be considered as causing annoyance and whether a particular conduct will fall within the purview of section 46(h)(ii) of the ICT Act.

In their statement, the two Supreme Court judges upheld this argument, recalling that a number of past cases cases have allowed courts (in Mauritius and elsewhere) to reaffirm the well established principle that criminal laws must be certain and formulated with sufficient precision to enable the citizen to regulate his conduct. They write that: “for a criminal law to pass the test of constitutionality under section 10(4), it must be so worded that it allows the ordinary citizen to  determine what constitutes an offence and what acts and omissions will render him liable to prosecution.”

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My final submission to the ICTA on its proposed amendments to the ICT Act

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In this blogpost, you will find the link to my final submission to the ICTA on its proposed amendments to the ICT Act. In the last section of my paper, I include my answers (reproduced below) to the specific questions of the ICTA in its Consultation Paper.

Click here to access the full text of the analytical paper

Click here to access the PDF format of the Analytical Paper

Summary of questions being released for public consultation

14.1 What are your views on the present approach of self-regulation of social networks by social media administrators themselves where they decide to remove an online content or not based on their own usage policy and irrespective of your domestic law?

Countries around the world face issues concerning circulation of posts which are potentially in breach of their domestic laws on social media platforms. There is, at present, no fully satisfactory response which is proposed or effectively deployed in any democratic country. Only non-democratic countries have recourse to drastic measures aiming to block and/or intercept all of their own citizens’ online communications and social media traffic in an attempt to regulate the same. As a democratic country, Mauritius cannot use methods which would be more suitable for non-democratic regimes.

It is true that the content being circulated online which either targets or is created by Mauritian citizens on social media may be in breach of domestic laws. However, an objective assessment of the extent of such illicit content being circulated needs to be conducted to determine the extent of abuse and/or misuse as already specified in the above paper,

It should also be recalled that social media platforms offer various levels of privacy, meaning that one may categorise the online communication sphere created by these into multiple sub-categories, which can tentatively be broadly listed as follows:

  1. Online national public sphere created by public personalities (prominent members of society such as politicians, leaders of big organisations, community and religious leaders, opinion leaders, etc.) and organisations (whether public or private bodies) who decide to publish their posts on the full “public mode” level. Their content becomes accessible to anyone without the need to be directly connected as “friends” or “friends of friends”. They generally have a large number of followers/friends and their posts can be shared, thereby enabling them to become viral.
  2. Targeted public circles created by specific individuals and bodies who wish to communicate within a semi-restricted sphere, upon invitation.
  3. Private circles whereby an individual or entity communicates only with their friends and whose posts cannot be shared outside of the network of friends.

There are obviously more levels of control which are generally available on some social media platforms in between those three broad categories. Suffice to say that the first level (online national public sphere) is the one which should command the most attention, followed by the second level (targeted public circles) whereas the third level (private circles) may be considered the equivalent of private conversations between private individuals.

Individuals and entities who have large follower bases in the online national public sphere and targeted public circles are the ones who should be more subject to scrutiny as they have the potential for virality and their speech is tantamount to public speech, which may be evaluated against prevailing domestic laws.

As it is, the responsibility for regulating content rests primarily on the social media platforms themselves, the most popular of which are based overseas, thus not directly subjected to domestic laws. These platforms use their own terms of use or community standards to evaluate content (1) when prompted by other users who flag potential issues or (2) when their internal algorithms detect highly sensitive content requiring intervention by the platform.

Intense debates have taken place after the occurrence of major incidents linked to social media accounts of public figures such as former US President Donald Trump. The latter’s account was shut down on platforms such as Twitter and Facebook after the Capitol invasion in January 2021 when he lost elections. Despite multiple posts which contained fake news and racist comments during his presidency, he was only banned from social media platforms when he lost the last elections, thus sparking debates about whether all major public figures around the world would henceforth be liable to similar treatment by the platforms. This was one of the most prominent cases entrusted by Facebook to its own Oversight Board for review. The Facebook Oversight Board published its ruling on 5th May 2021 and upheld the decision but requested that Facebook review the decision within the next six months and also develop clear, necessary, and proportionate policies that promote public safety and respect freedom of expression.

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The proposed amendments to the ICT Act to regulate social media in democratic Mauritius entail the risk of creating a surveillance state

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On 14 April 2021, the Information and Communication Technologies Authority (ICTA) released a Consultation Paper on proposed amendments to the ICT Act for regulating the use and addressing the abuse and misuse of Social Media  in Mauritius. In a nutshell, the paper makes a proposal to amend the law so that all internet communication would have to pass through a centralised proxy server managed by the agency and citizens will have to install a digital self-signed certificate on their devices to allow the server to access, decrypt, segregate social media traffic for analysis for investigative purposes. The technical toolset would be managed by an Enforcement Unit within the ICTA and there would be a National Digital Ethics Committee to decide on how to deal with “illegal and harmful content”.

There are numerous issues with this proposal. The most salient one being that the mechanism would make Mauritius a blanket surveillance state, which is incompatible with the concept of democracy. In fact, no other democracy in the world uses such a blanket system to intercept citizens’ communication in order to regulate social media. Below is a more detailed analysis of the content.

– What is the context for the proposed amendments?
– Preliminary comment about the context
– What are those proposed amendments to the ICT Act?
– Comment about the philosophy underlying the proposal
– What does the Constitution say?
– What are other democratic states doing or trying to do?
– Other key questions posed by the proposed amendments
– What are potential alternatives to the proposed amendments?
– Conclusion

What is the context for the proposed amendments?

There is a perceived need for regulation of social media in Mauritius. The stated objective is to combat illegal and harmful content (and comment) in a way that is not dependent on international social media companies. These platforms are deemed to be not sufficiently responsive to requests from the authorities in terms of:

  • time taken to respond,
  • community standards which are not as strict as our domestic laws, and
  • the Creole language which the platform moderators do not understand.

The paper states that a “minority of individuals or organised groups” are at fault and that “The issue at hand is when these abuses, even though perpetrated by few individuals/groups, go viral, the damage created is very far reaching.”

Preliminary comment about the context

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