The vile ‘Big Brother’ law

The vile ‘Big Brother’ law

MASERU-IN November 2016 Khotso Letsatsi, then Communications Minister, dispatched a stern letter to the Lesotho Communications Authority (LCA).

Letsatsi wanted the LCA to order Vodacom Lesotho (Vodacom) and Econet Telecom Lesotho (ETL) to shut down Facebook and Twitter. His gripe was that the two social media platforms “have been a nuisance to both Basotho at large by being used to attack, defame and slander”.
“It is a fact that in the midst of such political tension Facebook and Twitter are being used to propel instability and to undermine good governance.”

The government had no option but to do all in its might and power to protect itself and its people against this onslaught waged through Facebook and Twitter, he said.
“I therefore instruct you to close both Facebook and Twitter in Lesotho with immediate effect,” he told the regulator.

It was an unprecedented instruction that oozed both determination and desperation on Letsatsi’s political party. His coalition government was in the throes of a crisis threatening to knock it out of office.
The social media was buzzing with rumours of the government’s impending demise and a plethora of corruption scandals.

At the same time the government was leaking confidential information like a sieve and social media users were spreading it with vigour.
Seemingly still stuck in the era of press conferences and media statements, the government was losing the propaganda war.

The power had shifted to the public which people could instantly collect, share and analyse information while the government was still scrambling for a response through traditional means like radio stations and newspapers.

Letsatsi, who saw his role as that of a gatekeeper to the government’s information, had been rendered a spectator who could only boil while his team was being walloped.
His response was to go to what he thought was the source of his crushing defeat in the information battle.
Letsatsi’s letter had come two weeks after the mobile companies rejected his instruction to close the social media platforms, telling him that they don’t report to him but the LCA.

The letter prompted the regulator to hastily organise a special board meeting which resolved to ask Vodacom and Econet to make representations before it makes a decision on the minister’s order.
Thabang Mokela, the then LCA chief executive, later wrote what appeared to be a cautious letter to Letsatsi.

“After due consideration, the Board noted that implementation of the directive would involve other parties external to the Authority,” Mokela said.
“As such, there is a need to thoroughly consider the best implementation mechanisms within the confines of the law, and take into account rights and interests of directly affected licensees.”

“The Authority therefore requests the indulgence of the Honourable Minister to advise on the progress within a month.”
Letsatsi never got to carry out his threat because he was shunted to the Ministry of Energy in a reshuffle that followed a few days later.
Serialong Qoo, who replaced Letsatsi, didn’t seem to have the appetite to implement such a controversial decision.

But even if he wanted to carry out Letsatsi’s threat, time was not on his side. Within six months he and his party were deep in a gruelling campaign schedule that ended with their defeat in June 2017.
Mokela, a journalist himself, appears to have silently shelved the matter.
The new government, some of whose supporters Letsatsi was trying to silence by muzzling social media, moved on. And for the next three years it appeared the matter was dead in the water.

Then last week, out of the blue, the LCA resuscitated the issue. The authority wants social media users who “broadcast” content to at least 100 people to register.
The proposed regulations say the registration will apply to “internet posts by users who have more than one hundred followers in Lesotho”.
Although this doesn’t go as far as Letsatsi’s attempt to close social media, it amounts to the most brazen and draconian control of social media.

At its core is the government’s attempt to control freedom of expression and the flow of information. Its basis is section 5c of the Communications Act (2012) which says the authority can “establish its own internal organisational and procedures and make rules, codes directive, decisions and advisory guidelines”.

But make no mistake about the real intentions of the regulations.
This is not the LCA but the government trying to control social media content.
The LCA is just a Trojan horse for the government to control social media.
The rules chime in with the government’s intentions. Regulations like these come draped in ‘public good’ parlance but behind them are noxious motives.

It is thus predictable that the LCA will insist that its intentions are purely to stop pornography, fake news, hate messages as well as extremist views and other cybercrimes.
All these are noble intentions until you look at the broader picture as well as the vague and wide wording of the regulations. If passed in the current form, the regulations will give the government unfettered power to go after media content it doesn’t like.

This is especially because the parametres of what constitutes offending content is not precisely defined. It could range from violent language to simple criticism of the government or a minister.
The devil is in the detail. The regulations will force anyone with one hundred followers to be registered. Practically, this means almost everyone on social media should be registered.

Precisely, anyone with 100 followers on Twitter has to register.
Lesotho, by some estimates, has one million internet users. Facebook allows a maximum of 5 000 friends. Therefore, any Facebook user with 100 friends will have to register.
The same applies to even those in WhatsApp groups and post Tiktok videos.
The live streaming of weddings, church services, parties or funerals is covered under what the authority sweepingly calls “broadcasting” even if you are not doing it for profit.

The same applies for posting selfies, sharing or forwarding messages on social media as long as the messages reach 100 people or more.
To put it perspective, you have to look at how broadly the rules apply.
A typical example is a family WhatsApp group. First, the administrator of such a group will have to be registered if the group has at least 100 people. So does any family member who posts or replies to messages in the group. It doesn’t matter if you are merely forwarding something picked from another group or contacts.

Professor Hoolo ’Nyane, a Mosotho constitutional law expert based in South Africa, says the 100-people threshold alone betrays the sinister motive behind the proposed regulations.
“It’s shockingly vague and amounts to controlling every social media user in the country,” Professor ’Nyane said this week.
He says the regulations do not pass the two basic principles used to test the credibility of a law. The first test, he says, is whether there is a reasonable purpose for a law.

“There is no reasonable purpose for such regulations. There is no point even attempting to have such a law because it will be monumentally difficult to attain its intended goal,” Professor ’Nyane says.
“Even if you write such a law the next question is whether you will be able to apply it effectively, informally and fairly. There is no way this law can be properly implemented to regulate one million internet users”.

The second test, says the former National University of Lesotho lecturer, is whether a law is justified in an open and democratic society.
“Even if it is justified the crucial question is whether its objectives can be achieved with other less intrusive means. This law is extremely invasive on people’s rights to freedom of expression. There is therefore no justification for it.”

Professor ’Nyane says the regulations should be viewed as the government’s tactic to insulate itself from scrutiny and criticism of any nature.
“Governments that are under pressure resort to such oppressive tendencies. They start coming up with such draconian laws.”

“What is however clear from history is that such laws inevitably fail. They have failed even in China which is the leader in the control of the internet.”
He suggests that instead of trying to muzzle the social media “the government should just open up, shape up and do things right because we are in the era of information”.

“Gone are the days when governments controlled the flow of information and dictated the narrative. The world has changed and governments should change with it instead of trying to fight what is essentially an unwinnable battle.”
Dr Dounia Mahlouly, the media Senior Teaching Fellow and Researcher at the SOAS University of London, told thepost the regulations remind her of the Egyptian law that forces social media with 5 000 followers to register.
Dr Mahlouly said the threshold of 100 followers “strikes me as a very low number”.

She says the regulations are in sync with the global trend “in the sense that we can observe various attempts at recentralising the public debate and re-establish authoritative sources of information, with governments calling for online security and policies designed to ‘counter misinformation’”.
“Concerns over the circulation of information have also become particularly strong in the context of the Covid pandemic”.

Professor Herman Wasserman of the University of Cape Town says forcing social media users to register with the authority “is a problematic policy, especially since this will include news media sites.”
“Such registration could pave the way for interference with editorial independence, surveillance of journalists and restriction of free flow of information”.

He says while he accepts the urgent need to monitor and eradicate misinformation on social media there are better ways to achieve it without violating the right to information and freedom of expression.
“For instance, by supporting public and community media, fact-checking organizations, ensuring efficient self-regulation processes and developing media literacy campaigns”.

His sentiments are shared by Professor Eric Louw of the University of Queensland in Australia who sees the LCA regulations as part of a global trend by the elites to regulate internet content.
He says the regulations have been a long time coming because “the internet has disrupted the capacity of elites across the globe to manage the flow of ideas within their societies and curtailed the ability of elites to restrict opinions that they would prefer their public not get access to”.

“This LCA move would appear to be another example of regulators seeking to put into place rules and regulations that enable them to control communication.”
“For those of us who believe freedom of expression is absolutely necessary for democracy, moves such as these by the LCA to regulate the internet must be viewed with concern”.

The idea of registering anyone making posts accessible to 100 internet users, says Professor Louw, certainly seems geared to casting Lesotho’s regulation net very wide.
“This move must be seen as threatening freedom of expression in Lesotho.”
Lesotho is not the first country to attempt to control social media content but the question is whether the LCA has the capacity to achieve the regulations’ objectives.

A University of California lecturer who is a leading expert but did not want to be named because he has not thoroughly analysed the regulations said they would be “potentially a huge supervisory burden” for the LCA and there is a danger that it might not be applied in a consistent manner.
Indeed, it is not clear why the LCA wants to take on such a mammoth task when the social media companies themselves are already doing a decent job of monitoring their own content. Between April and June YouTube, owned by Google, removed just over 11 million videos for violating its policies.

About 98 percent of those videos were automatically removed by machines. About 60 percent of those videos were removed before receiving a single view. Nearly all the removals were targeting the exact concerns the LCA seems to be fretting about: child safety, misleading information, scam, spam, nudity, sexual, violent, violent extremist, dangerous, cyber bullying, harassment and abuse.

To achieve this YouTube relied on machines, users and a 10 000-strong ‘army’ who monitor and remove offending content.
Facebook, which owns WhatsApp and Instagram, has 35 000 employees who monitor their platforms. It is because of the work of those people that Facebook removed over 30 million posts between July and September last year.
Both Facebook and Google rely on their financial muscle to achieve this scale of monitoring.

As of yesterday, Facebook was worth US$736 billion and employed more than 52 000 people globally. Alphabet Inc which owns Google and Youtube is worth more than US$1 trillion and had 127 000 employees in the first quarter of this year.
Yet those companies sometimes struggle to keep pace with content violating their guidelines.

By comparison, Lesotho’s budget this year is slightly over US$1 billion.
And how much is the LCA’s revenue? According to the 2016/17 annual report the authority received M69.7 million (US$4.2 million) in licence, application, royalty and spectrum fees (the latest annual report on the LCA report is for 2017/18 report but it cannot be opened).
The authority had 36 employees to monitor all radio stations, two mobile companies and all other communications service providers.

Shakeman Mugari

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