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“Sis, is this your man?” The Legal implications

SHARE   |   Wednesday, 01 August 2018   |   By Dr Letshwiti B. Tutwane

Today we will look at Botswana’s new law on cybercrime. Whilst a law like this would naturally interest me, my curiosity to look at it was intensified by a ladies Facebook page called “Sis, is this your man?’’. Whilst I have not accessed it as it is exclusive to women, I have been informed that it is buzzing with activity and ladies regard it as a potent weapon against men whose testosterone level is uncontrollable. Basically what happens there, ladies post pictures of men that they deem harrasive or who are potential boyfriends and seek the opinions of others, I was told. It appears however that on the whole this is a naming and shaming platform, especially for married men who seem keen on building a harem. This must be very fascinating for the ladies as they expose these men. At the same time the downside of this is that other members in the group may be having a morbid intention motivated by mere hate or jealousy and post the pictures of innocent men. Remember people can’t be taken at face value; they have different intentions and one must always be cautious. And even those commenting on pictures may also do so with a malevolent intention, when they have an axe to grind with the man whose picture has been posted. I still recall a story I was told almost a decade ago: A lady was approached by a man who was amorously attracted to her and she approached a friend for her opinion. The friend advised her against going out with this well moneyed man. However she herself enticed the man and he eventually married her. That was the end of the friendship of the two ladies!

So as you pour scorn on men on that page, be aware of issues like these. More significantly, you also need to be aware of the legal implications. In terms of the re-enacted Cybercrime and Computer Related Crimes Act 2017 which was passed in June 2018, it is an offence to post people’s pictures in the manner we are discussing here. It creates an offence punishable by a fine not exceeding P20 000 or to imprisonment for a term not exceeding one year or both for malicious, willful or repeated use of electronic communication in an offensive manner ‘to disturb or attempt to disturb the peace, quiet or privacy of any person with no purpose to legitimate communication, whether or not a communication ensues’. Please note that the threshold for this offence is very low. The communication just needs to be offensive and fall under the categories stated herein. In any case, when it comes to privacy, it is a right guaranteed under the Constitution (See Section 9 (1) and also available at common law. My argument is that even without this new law one could still sue for what is published about them on social media. The law only makes it easier. In my examination of case law from other countries, I have realised that in other countries, they combine these new cyber laws with traditional catch-all criminal laws. The UK is a good example where public order laws and ‘media’ laws have been used to prosecute citizens for offensive digital expressions. It is common in that country for laws such as the Malicious Communications Act 1998, Serious crime Act 2007, the Public Order Act 1986 and the Harassment Act 1997 to be used to prosecute citizens for social media posts. For instance, in S v DPP (2008) EWHC 438, a man was convicted under the Public Order Act 1986 after posting a picture of a laboratory worker online with the words: ‘C’mon, I would love to eat you. We’re the Covance cannibals’.

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 In another case (R v Blackshaw [2011]), following the 2011 riots, a 20 year old, Jordan Blackshaw was prosecuted and sentenced to jail for 4 years  for a post on his Facebook page entitled ‘The Warrington Riots’. The youngster was drunk when he set up the page and he later regretted the decision as he took down the page within several hours, apologising and explaining that it was meant to be a joke. However the Court of Appeal was not convinced. He faced a maximum 10 years in prison.  Blackshaw was charged under Sec 46 of the Serious Crime Act 2007.

 One of the things that worry me when I looked at the Botswana law is the absence of a provision that deals with deletion of posts. Without such a provision I see the danger of heavy punishment when the owner of the post would have long removed the post and it was instead circulated by other people. The sentences in this law are also hefty and there is no sense of proportionality. Without the legislature guiding the judiciary in this respect, I see wailing and gnashing of teeth. This is also because when you look at comparative international law, you realise that the courts are still experimenting with social media. The decisions are disjointed and it is only in the US where with the First Amendment protecting speech, it is predictable what the attitude of the courts would be. 

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The other provision that I was expecting to find in this law was one dealing with fake news. This is increasingly becoming a big problem in this country. Whenever one receives information, he/she has to ask whether it is legitimate and cross-check and verify. I don’t think anybody can claim he has a right to lie or to mislead others or an entire nation. We need to punish people for such.

I know that there are those in the legal fraternity who claim that social media needs not be regulated. This is unmitigated nonsense. I have read the literature on this subject (the leading global scholars in the area of constitutional law) and they are all agreed there is need to regulate. The only issue of debate is what should be the nature of this regulation. It has to strike a good balance between allowing citizens to enjoy freedom on the Net with the rights of others and the interest of the public.  The concern of scholars such as Prof Jacob Rowbottom from the Oxford University Law School, which I share, is that the traditional value categorisation of speech adopted by courts such as the European Court of Human Rights (ECtHR) where political speech and artistic expression are given the highest protection is insufficient. He suggests one based on level of speech, which will even protect casual, ordinary everyday speech: ‘Low level speech should also be protected because it is connected with freedom of thought. When people think and speak, there is a very little gap between what they think and what they say. Often there is little reflection, no verification or research’  (Rowbottom, 2012, p. 74).

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I realize that there is more I could say on this particular topic. So I will add another bit next week in conclusion.    

Dr LETSHWITI B. TUTWANE

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