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.”
The judges proceed to compare the initial version of section 46(h)(ii) of the ICTA to similar provisions of the law in the UK and India, namely section 66A of the Information Technology Act 2000 of India and section 127(2) of the UK Communications Act, 2003. They find a marked difference between the Mauritian provision and the English and Indian provisions. In both the UK and in India, there should be evidence that the offender knew that his/her message was based on information he/she knew to be false or made persistent use of electronic means to send the message. The elements of falsity and persistent use “in the English and Indian law make the offence more objectively ascertainable by the Courts and by the citizens.”
Section 46(h)(ii) 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”. Leaving 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 judgement thus basically deemed that the version of article 46(h)(ii) of ICT Act to be unconstitutional.
The judges do specify that they do not make any pronouncement about the constitutionality of the redrafted version of the section (done in 2018). But this will undoubtedly create a precedent for any new cases being judged under the redrafted section of the ICT Act and it further weakens the justifications for the ICTA proposal for regulation using a technical toolset to intercept all internet traffic in Mauritius, a proposal which was itself predicated on that very section.
It is useful to recall that the new version of Section 46(h)(ii) of the ICTA now reads as follows:
(ii) which is likely to cause or causes annoyance, humiliation, inconvenience, distress or anxiety to that person; (the changes are in bold )
It seems to me that this new formulation is even more subjective than the former version which was the basis for the Supreme Court case. The 2018 updated formulation creates even more uncertainty and imprecision in defining the nature of the offence as it introduces the phrase “which is likely to cause…”, meaning that the impact of the offence may be hypothetical, rather than real. It also adds new terms: “humiliation” and “distress”, which are not well-defined either.
I may be wrong but such a judgement from no less than the Supreme Court further diminishes the likelihood for the amendments proposed in the ICTA Consultation to be given the go ahead. And this is good news!