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Freedom of expression and the internet

by Lesotho Times

By Lichaba Sekhosana

Three executives of a prominent global internet search company were convicted in Italy last month for violating privacy laws.
The executives were accused of allowing to be posted on the internet disturbing footage of a disabled Italian boy being bullied.
The ruling was the first of its kind and was condemned by critics as the biggest threat to internet freedom.
The US’s ambassador to Italy, David Throne, condemned the decision saying that freedom of the internet was vital for democracy.
In January, US secretary of state, Hilary Clinton, expressed clearly that “freedom of the internet is a human right that is to be protected in free societies”.
A spokesman for the internet provider in Italy said referring to the judgment: “This verdict is an attack on the fundamental principles of liberty on which internet freedom is built.”
The internet giant argued that the responsibility of what goes on the web is always down to the person who uploads it.
Prosecutors in the case argued that the victim’s right to privacy had been violated and that the internet provider should have removed the footage from the internet quicker than it eventually did.
Lawyers for the internet company had argued they were not responsible for material uploaded onto the web and the sheer volume of material which would have to be previewed before being posted made it impossible to do so.
Can we conclude from these arguments that the internet has an unlimited right to freedom of expression?
I have met many Basotho who complain in vain over false internet publications.
Anyone can ruin someone’s life on the internet and even publish false, criminal or immoral accusations such as being a murderer, rapist, sexist, racist etc.
Cyber-crime is motivated by fraud and hatred, typified by the bogus emails sent by phishers that aim to steal personal information and use it for selfish and criminal purposes.
If Internet providers say they cannot monitor all the material that gets uploaded and ensure that it is not offensive, illegal, inflammatory or otherwise, then they shouldn’t be in the media business.
I believe that the internet is a media like the newspaper or television and must also be subjected to the same media laws whether under common law or statutory law.
You wouldn’t expect a newspaper or television station to be able to publish/broadcast whatever story true, false or defamatory that they like, and then simply claim they don’t have the resources to check everything before it goes live.
I  believe that while the constitutional right to freedom of expression, as enshrined under Chapter 2 of the constitution of Lesotho, is one of the most fundamental rights, this should not be  at the expense of the rights of other people, while using the internet and other media, to be treated with equality, dignity and respect.
While economic and political barriers are being lowered and technological advancements in communications and commerce are on the increase, the globalisation phenomenon is increasingly producing immense opportunities for students, researchers, tourists and business people.
However, among those taking advantage of opening up societies and borders are criminals who use the very same opportunities presented by technological devices such as the internet to engage in the slandering of other people’s characters.
New technologies are known to challenge existing legal concepts in any jurisdiction and there has always been a significant lag between the development of technology and the development of the law elsewhere and Lesotho’s position is made worse by no tangible legal developments at all at least that I am aware of in addressing computer crimes.
While our neighbouring country, South Africa, has developed three of the most important legislative interventions in this respect, in the form of  the Electronic Communications and Transactions Act 25 of 2002, the Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002 and the Electronic Communications Act 36 of 2005, Lesotho is still lagging behind in its technological legal regime and this leads to a lot of cyber/computer crimes such as internet defamation, hacking and card-clowning being perpetrated in Lesotho at times allegedly by South Africans going unpunished.
I have often heard many Basotho complain in vain about either being defamed on internet sites or via email. I have not heard of any legal action being instituted to address such criminal and or civil liabilities.
Then one wonders whether we as a country are at a stage where our own laws cannot protect our constitutional rights to privacy, dignity and integrity.
Or whether by necessary implication we are endorsing the notion that the internet’s right to freedom of expression knows no limits.
Our legal regime can still not deal with such things as electronic evidence, cyberforensics, legal electronic evidence collection mechanisms and this makes it very difficult, if not impossible, to address cyber, internet or computer crimes in our country.
Our legal infrastructure is also far from being able to handle non-tangible crimes such as cyber crimes.
Some people argue that everyone is in favour of freedom of expression until that freedom of expression is used on them.
I however want to argue that the protection of an individual’s right to privacy, dignity and integrity is fundamental to today’s society and media or business freedom should never come above that of a person’s dignity.
As a student of media law I learnt that freedom of expression is not unlimited, not even that of the internet.
•      Lichaba Sekhosana is a corporate lawyer based in Maseru. He writes in his personal capacity.

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