September 2022. By Zaina Foundation
First and foremost, we extend sincere appreciation to our Almighty God for his blessings and successful completion of this work. ZAINA Foundation, registers sincere appreciation to the team of legal advocates who offered for their commitment and time dedicated for this work.
ZAINA Foundation is a non-governmental organization registered under the Non-Governmental Organizations Act No. 24 of 2002 with the aim of promoting digital rights and inclusion by empowering women in technology Tanzania. ZAINA Foundation conduct advocacy for policy reform in Tanzania by reviewing policies and laws that affects the rights to freedom of expression and press freedom including digital rights.
In implementing its vision and objectives, ZAINA Foundation has developed a simplified Post-Analysis of the Electronic and Postal Communications (Online Content) Regulations, 2022 Amendment as published on 18th March 2022 through Government Notice No. 136. The amendments are made under section 165 of the Electronic and Postal Communication Act, Cap 306 of 2010 of the laws of Tanzania mandating the responsible Minister to make the regulations. This analysis serves as an advocacy tool to further advocate for the required reforms of the Regulations (as amended in 2022), it also serves as a capacity building tool of awareness creation to the key stakeholders and the general public.
- Brief Historical Background
The first version of EPOCA regulations was published in 2018, followed by several amendments which were made to repeal and amend the regulations for various reasons including the good intention of the government to improve freedom of expression and press freedom as per the constitution and international standards. On 17th July 2020, the 2018 EPOCA Regulations were repealed and replaced by the 2020 EPOCA Regulations through G.N. No. 538 (the Principal Regulations), due to the public concerns on the restrictions it introduced including the requirement for social media content providers to be licensed. The 2018 regulations were also repealed following the pressure by the stakeholders who filed a case in the High Court of Tanzania to nullify the regulations for procedural faults in its amendment. In August 2021 the EPOCA Regulations were further amended, however the amended Regulations also fell short of the required constitutional and international standards, for retaining most of the restrictive. While ZAINA Foundation commends the government’s good intention in amending the 2020 EPOCA Regulations, we observe that, further improvements are required to remove provisions that are likely to affect the Freedom of Expression and Press Freedom (including digital rights).
- Analysis of the EPOCA 2020 Regulations (as Amended in 2022)
The EPOCA Regulations (amendment) 2022 were published on 18th March 2022 through G.N. No. 136 made under S. 165 of the Electronic and Postal Communication Act, Cap 306 of 2010. This analysis seeks to highlight the extent to which the EPOCA Regulations, 2020 (and its amendment in 2022) conform with the standards set by the Constitution of the United Republic of Tanzania, 1977 and the international standards on freedom of expression including the components of digital rights which includes the right of opinion and expression of ideas online, rights to seek, receive and disseminate information online, right to be informed at all times online, rights to privacy and data protection online as well as rights of association and assembly online.
- The International and National Legal Parameters
This analysis checks whether the Regulations conforms with Art.19 of the Convention on Civil and Political Rights, 1966 which set out freedom of expression. It provides that, everyone has the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
The analysis also checks if the regulations comply with Article 9 of the African Charter on Human and Peoples Rights, 1981, which provides for the right to disseminate information and the general right to freedom of expression.
Lastly, the analysis checks the conformity of the Regulations with Art. 18 of the Constitution of the United Republic of Tanzania, 1977 which guarantee the freedom of opinion and expression, the right to seek, receive and, or disseminate information regardless of national boundaries.
- Strengths of the EPOCA Regulations (as Amended in 2022)
- Removal of Restrictive Obligations to internet Providers
The word “Internet Providers” has been removed from Regulation 2. The amendment is also reflected in regulation 13, which exempts internet providers from the responsibility to filter online prohibited content as well as the necessity to install surveillance cameras in all internet cafés to monitor internet users. The amendment is beneficial in that it promotes access to information and freedom of expression, including digital rights, in accordance with Article 16 of Tanzania’s 1977 Constitution.
- Removal of unclear and ambiguous terms
Regulation 3 has been amended to include important definitions of the word; “Online Media Content Services” which means; “…content services provided for the purpose of news and current affairs in a manner similar to, or in a manner that resembles services providers licensed under the Act.” This reduces arbitrary arrests and harassment as well as self-censorship of online media users and beneficiaries.
Regulations 3(b) has also been modified to remove the phrases “internet live broadcasting” and “public accounts.” This provision invited abuses of digital rights for social media users, including individual online content users, the phrases presented interpretation challenges and misunderstanding.
Regulation 3(c) has been amended to exempt general users of online platforms from liability and restrictions imposed by the 2020 EPOCA Regulations, such as the mandatory requirements of reporting some online contents to authorities and registering use of social media platforms for individual users. As a result, this modification will improve unrestricted access to information.
- Reduction of license fees
The 2022 EPOCA Amendment to Regulation 5 re-categorized license fees to provide clarity, as well as reduced application and licensing prices for online content service providers. For example; Fees for Category B; (simulcasting radio and television) have been eliminated, and other fees have been reduced by more than half. This great step advances freedom of expression, journalistic freedom, and information access.
- Removal of Restrictions for Simulcasting media Contents
Regulation 10 of the EPOCA Regulations has also been amended to allow main stream media content service providers with district or regional licenses to simulcast their programs via online platforms. The amendment is good because it promotes freedom of expression, particularly access to information, in accordance with Article 18 of the United Republic of Tanzania Constitution of 1977.
- Child Protection from harmful content
Regulation 12 of the EPOCA Amendment 2022, strengthens child protection against all harmful content. Online Content Service providers are mandated to adopt measures to ensure children are protected against access to any content that is harmful to the children wellbeing.
- Weaknesses of the EPOCA Regulations 2020 (as Amended in 2022)
Regardless of the progressive amendments made in 2022, the EPOCA Regulations still contain several key violative provisions that are likely to limit the enjoyment of freedom of expression and press freedom in violation of the required standards set by the Constitution of the United Republic of Tanzania and international instruments as ratified by Tanzania. The following are the provisions that require immediate attention and agitation for amendments:
- Mandatory licensing of online content service providers
Regulation 4(1) restricts the right of opinion and expression of opinion on the online platform because it subjects all media service provides to the mandatory licensing with fees. The requirements limit fully enjoyment of the right as majority will be marginalized including citizen journalists or freelancers from expressing their views.
- Excessive Power of licensing authority
The licensing authority (TCRA) has been given massive powers not subjected to accountability by other oversight bodies, this is likely to affect the rights of the online content service providers and the general public including the right to access, seek and disseminate information online.
For example; regulation 7(1) does not expressly state the number of days in which the authority should issue the license. Similarly, the authority is vested with power to refuse issuing licenses under regulation 7 (2).
Furthermore, regulation 8 gives the authority to suspend or revoke the license without following legal procedures on the right to be heard which breeds to the violation of human rights in terms of equality. The service provider is not permitted to respond to the reasons presented for license suspension or revocation. This is in violation of Article 13(6), (a) of the United Republic of Tanzania’s Constitution of 1977 and Clause 11 of the African Declaration on Internet Rights and Freedoms of 2013, which both provides for the right to due process.
Again, regulation 9(f) vests the Authority with excessive powers to order the online content provider to immediately remove any prohibited content which is provided for under schedule III of the regulations.
- Heavy punishments
Regulations 8 (1) and 21 of EPOCA 2022 maintains severe punishment of suspensions, license revocation and imposition of fines to the tune of not less than five million Shillings or twelve months’ imprisonment or both for any person who contravene any provision of the Regulations. While the intention is to discourage breach of the regulations, on the other hand its is likely to suppress freedom of expression by creating unnecessary fear to the intented beneficiaries including journalists and online media users.
- Breach of Individuals privacy
Regulation 9 (d) provides for mandatory requirement for the licensee to adopt a mechanism for identification of the source of content by prohibiting anonymity and Regulation 16 (2) which restricts the use of technologies and applications which help users to access information breaches Article 16 of the Constitution of URT,1977 which provides for the rights to privacy.
- Ambiguous and unclear provisions
Paragraph 3 of the 3rd schedule maintains prohibition to the publication of content on public security, violence and national security. This paragraph is awkward as is subject to various interpretations. The legal framework governing cyber space should consider the distinctions between print, broadcast, and Internet media as well as the manner in which media converge.
- Restriction to the right to assemble
The third schedule under clause 3 prohibits content that involves planning, organizing, promoting, or calling for demonstrations, marches, or like which may lead to public disorder. The provided restriction is not clear as to what extent such planning or organizing of demonstration could lead to public disorder. This contradicts Article 20 of the Constitution of the United Republic of Tanzania, 1977 which guarantee the right to association and assembly. Furthermore, the African Declaration of Internet Rights and Freedom, 2013 stipulates that everyone has the right to use the internet and digital technologies to further freedom of assembly and association.
From the above observations, ZAINA foundation recommends further improvements of the EPOCA 2020 Regulations (as amended in 2022) in order to create an improved environment for access to information, freedom of expression, press freedom and digital rights among online media stakeholders and beneficiaries. Specific recommendations are hereunder elaborated:
- The mandatory licensing for all online services providers should be removed and only be provided to media houses (companies). Bloggers and community media should be exempted from this requirement in order to broaden the scope of exercising these crucial rights.
- Any limitations to any the rights must be regulated in compliance to the three-part test. The test requires that the limits be; prescribed by Law, aim to Pursue a Legitimate Aim, Be necessary and proportionate to secure the legitimate aim, contrary to which it would be against the International norms governing freedom of expression as ratified by Tanzania.
- The penalties for violating the rules should be minimized, in that while discouraging breach of the law, at the same time should guarantee growth of media freedoms, freedom of expression including digital media services as per the constitution of Tanzania, region, international treaties and good practice.
- The law should protect the service providers against mandatory disclosure of sources of information by having non-disclosure clauses with creation of impartial oversight bodies that will assist in holding anyone accountable who fails to follow a due judicial process in punishing any breach caused.
- Regulation 16 of the EPOCA 2020 should be amended by adding a basic ingredient of crime which is the intention aspect of a person to commit a crime.
- The regulations should be progressively amended to set aside annual license fees for all license categories save for other corporate taxes. This will guarantee access to information for the public, considering the intent has been a great tool for easy conveying of information in many parts of the country.