Reporters Without Borders (RSF) calls on the president of Mauritius not to promulgate the law imposing much tougher regulations on radio stations, that the national assembly passed yesterday despite opposition from the media. This law threatens journalistic independence, RSF says.

“Wake for freedom of expression,” was the front-page headline in the Mauritian newspaper L’Express yesterday morning, a few hours before the national assembly approved the Independent Broadcasting Authority (Amendment) Bill, giving the authorities extensive powers to penalise the island nation’s very popular privately-owned radio stations and jeopardising the confidentiality of journalists’ sources.

The law would enable the director of the Independent Broadcasting Authority (IBA), the national broadcast media regulator, to ask a judge to order journalists to reveal their sources or “produce any record, document or article needed for the exercise, by the Authority, of its regulatory powers.” And it establishes no legal safeguards for this practice.

It would also increase the penalties that courts can impose on journalists, extend the IBA’s powers and further undermine its already limited independence. Media outlets that fail to comply with the rules or journalists who refuse to reveal their sources would face up to five years in prison and a fine of 500,000 rupees (10,000 euros) – five times more than the current fine. At the same time, the IBA members responsible for settling disputes in the event of an appeal would now be appointed by the government and not by the IBA itself, as was the case until now.

Finally, the media licensing process would become much more onerous. Licences would cost twice as much and would be valid for only one year, instead of three. This means that the IBA’s director, who is appointed by the prime minister, would have an opportunity to strip a media outlet of its licence every 12 months. Furthermore, the new law specifies that “the past conduct of a licensee” should be considered when “determining whether or not to renew a licence.”

“What with increasing the threat to the confidentiality of sources, reinforcing penalties, making it harder to renew a licence and undermining the regulator’s independence, this bill has provisions that are very dangerous for journalistic freedom, pluralism and independence in Mauritius,” said Arnaud Froger, the head of RSF’s Africa desk. “We ask the president not to sign it into law.”

Mauritius is ranked 61st out of 180 countries in RSF’s 2021 World Press Freedom Index.

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In Sub-Saharan Africa, Mauritius leads in many aspects. It is the only country on the continent categorised as a “full democracy” by the Economist Intelligence Unit Democracy Index for 2020. Additionally, it has the second highest per capita income (USD 11,099) and one of the highest internet penetration rates in the region (72.2%).

However, the recently published consultation paper on proposed amendments to the country’s Information and Communications Technology (ICT) law, purportedly aimed at curbing abuse and misuse of social media, could place Mauritius among the ranks of regressive states. The proposed establishment of a National Digital Ethics Committee (NDEC) to determine what content is problematic in addition to a Technical Enforcement Unit to oversee the technical enforcement of NDEC’s measures has potential surveillance and censorship implications.

The social media regulation proposals by Mauritius are made in light of increasing calls for accountability of technology platforms such as Google and Facebook by western countries. Indeed, the consultation paper cites Germany’s Network Enforcement Act (colloquially known as the Facebook Act), which requires social media platforms to remove “illegal content” from their platforms within 24 hours of notice by users and complaint bodies. Non-compliance penalties are large – with fines ranging between five million and 50 million euros.

The paper states that, unlike in Germany and other countries like France, the United Kingdom, and Australia, complaints by Mauritian local authorities to social media platforms “remain unattended to or not addressed in a timely manner”. Moreover, it adds, cooperation under the auspices of domestic laws and regulations is only effective in countries where technology companies have local offices, which is not the case in Mauritius. As such, according to the Authority, “the only practical solution in the local context would be the implementation of a regulatory and operational framework which not only provides for a legal solution to the problem of harmful and illegal online content but also provides for the necessary technical enforcement measures required to handle this issue effectively in a fair, expeditious, autonomous and independent manner.”

However, the Authority’s claims of powerlessness appear unfounded. According to Facebook’s Transparency report, Mauritius made two requests for preservation of five user accounts pending receipt of formal legal processes in 2017. In 2019, Mauritius made one request to Facebook for preservation of two accounts. Similarly, the country has barely made any requests for content take down to Google, with only a total of 13 since 2009. The country has never made a user information or content takedown request to Twitter. In comparison, South Africa made two requests to Facebook for preservation of 14 user accounts in 2017 and 16 requests for preservation of 68 user accounts in 2019. To Google, South Africa has made a total of 33 requests for 130 items for removal since 2009 while to Twitter, it has made six legal demands between 2012 and 2020.

Broad and Ambiguous Definitions

According to section 18(m) of Mauritius’ Information and Communication Technologies Act (2001, amended multiple times including in 2020), the ICT Authority shall “take steps to regulate or curtail the harmful and illegal content on the Internet and other information and communication services”.

Although the consultation paper states that the Authority has previously fulfilled this mandate in the fight against child pornography,  it concedes that it has not fulfilled the part of curtailing illegal content as it is not currently vested with investigative powers under the Act. The consultation paper thus proposes to operationalise section 18(m) through an operational framework that empowers the Authority “to carry out investigations without the need to rely on the request for technical data from social media administrators.”

However, neither the existing Act nor the consultation paper define what constitutes “illegal content”. Whereas the consultation paper indicates that the Chairperson and members of NDEC would be “independent, and persons of high calibre and good repute” in order to ensure transparency and public confidence in its functions, the selection criteria and appointing Authority are not specified, nor are recourse mechanisms for fair hearing and appeals against the decisions of the proposed entity.

An Authoritarian Approach to Internet Architecture

Through a technical toolset (a proxy server), proposed under section 11, the regulator will be able to identify social media traffic which will then be automatically decrypted, archived, and analysed. For instance, the technical toolset would undermine HTTPS in order to inspect internet traffic. This means that information of all social media users pertaining to device specifics, content type, location, among others, would be available to the authorities. The regulator expects that once a complaint regarding social media is received, they will be able to block the implicated web page or profile without necessarily needing the intervention of social media platforms.

Additionally, the Authority expects social media users to accept installation of a one-time digital certificate on their internet-enabled devices to facilitate the re-encryption of traffic before it is transferred to the social networking sites. In other words, the Authority wants internet users in Mauritius to replace their own padlocks used for their home security with ones given to them by the Authority, which it has open and unfettered access to.

On the other hand, Mauritius’ commitments to freedom of expression, data protection and privacy potentially collide with these social media regulation proposals. In particular, Mauritius’ Data Protection Act (2017) requires informed consent of users, prohibits disproportionate collection of user data, and mandates fair and lawful processing of user data. The Data Protection Act was enacted to align with the European Union’s General Data Protection Regulation (GDPR). In March 2018,  Mauritius also ratified the African Union Convention on Cybersecurity and Personal Data Protection, although the Convention is yet to be enforced due to lack of quorum. Moreover, in September 2020, Mauritius signed and ratified the Council of Europe’s Convention for the Protection of individuals with regard to automatic processing of personal data.

Indeed, the Authority is aware of the potential infractions of the proposed technical measures on basic freedoms — stating in the paper that “the proposed statutory framework will undoubtedly interfere with the Mauritian people’s fundamental rights and liberties in particular their rights to privacy and confidentiality and freedom of expression”. Its seeking views and suggestions of “an alternative technical toolset of a less intrusive nature” may very well be an open solicitation for more surreptitious ways of monitoring social media data, with fundamental rights still at stake.

Democracy and Local Investment

While Mauritius runs a multiparty system of government, its human rights record has been steadily deteriorating, according to the United States Department of State’s Human Rights Report 2020. Moreover, basic freedoms such as freedom of expression are being curtailed through digital taxation and clampdown on social media dissent. Recently, Twitter cited stability and democracy as the key reasons for the opening of its first Africa offices in Ghana. Although Mauritius is strategically placed as a regional and economic hub in Africa, and has been positioning itself as a “Cyber Island”, legal frameworks such as the proposed ICT law amendments and mixed rankings on democracy alongside high rankings on internet access and ease of doing business may likely undermine the country’s international competitiveness and internet freedom standing.

Accordingly, the Authority would do well to immediately discontinue these plans to employ technical measures to monitor social media and internet traffic as they would amount to multiple breaches of fundamental freedoms. The proposals also run counter to the Data Protection Act which prioritises minimisation of data collected and informed user consent. Moreover, the technical proposal would promote self-censorship and undermine the basic workings of the institutions of democracy.

Further, although social media regulation could be paved by good intentions such as the need to stamp out inflammatory content, it could be more beneficial to explore alternative options with a range of stakeholders to promote more fair and transparent content moderation practices in line with international human rights law. Mauritius has already proved that aligning domestic and international laws and practices is necessary by fashioning its data protection law along the lines of the GDPR. Additionally, Mauritius could leverage existing partnerships with other countries of regional economic blocs such as The Common Market for Eastern and Southern Africa (COMESA) to form a coalition of fact-checkers that have direct access to social media platforms.

Finally, the Authority could collaborate with technology platforms such as Facebook to support Creole language human moderators. This could be a necessary step to enhancing content moderation through automated decisions and more so for “low resource” groups of languages including Mauritian Creole.

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By Thomas Robertson

Under the premise of Covid-19 austerity measures, the government of Mauritius passed a new tax on digital services in August 2020. The “Liability to Value Added Tax on Digital and Electronic Services” is one of the several amendments to the Value Added Tax (VAT) Act introduced in the July 2020 Finance Bill.

The Act defines “digital or electronic service” as any service supplied by “a foreign supplier over the internet or an electronic network which is reliant on the internet; or by a foreign supplier and is dependent on information technology for its supply.”

The penalties for failure to comply with VAT that are outlined in the original VAT Act (which are unchanged in the amendment that extended the tax to digital services) include a fine of up to 50,000 rupees (USD 1,255) or imprisonment of up to five years.

The digital VAT introduction is the latest in Mauritius’ move towards internet regulation that has already manifested in restrictions to freedom of expression through the Information and Communication Technology (ICT) Act and application of expanded surveillance technologies in tourist areas.

The bumpy legal road to Mauritius’ blossoming ICT sector

Mauritius’ economic success and a strong culture of democracy have allowed for the development of an emerging ICT sector. In 2019, the ICT sector contributed up to 5.8% to the country’s Gross Domestic Product (GDP) amounting to over 800 million US dollars. This is not surprising given that Mauritius has set out to be the world’s first Cyber Island and has fulfilled that goal by establishing Africa’s first Cybercity. Additionally, a conducive legal framework is in place, including laws on cybercrime, data protection, and ICT usage regulation and democratisation. Mauritius is also implementing a Digital Government Strategy that aims to integrate technology into government operations and service delivery.

Nonetheless, there has been a series of regressive developments to which the online services tax now contributes. In 2018, a contentious amendment to the ICT Act was passed, which criminalised content perceived to cause “annoyance, humiliation, inconvenience, distress or anxiety to any person,” and established penalties of up to 10 years in prison. However, even before the amendment of the ICT Act, two internet users were arrested in 2016 following a complaint filed by a member of the Mauritian cabinet regarding their Facebook posts. One of the two users arrested in 2016, Farihah Ruhomaully, was arrested again in July 2020 after she called a Member of Parliament a “dirtbag” on Facebook. Both of these arrests were justified as responding to breaches of the ICT Act, indicating that the Act is enforced not just to prevent cybercrime, but also to crack down on dissent.

The ICT Act has also been used to criminalise the dissemination of false news as demonstrated by the arrest of a former government minister on allegations of spreading false information regarding the purchase of Covid-19 medical equipment. Meanwhile, there are reports of the involvement of the Mauritian government in the blockage of social media accounts of critics on grounds of national security.

In addition, the Mauritian government is one of several across Africa to institute a widespread surveillance apparatus. The Safe City project funded by Huawei will install a system of hundreds of closed circuit television (CCTV) cameras in the Port-Louis area purportedly intended to fight crime. This is troubling given Huawei’s reported collaboration with state police forces in Uganda and Zambia to target the political opposition.

Looking beyond the Tax Act’s impacts on internet affordability and free speech

Mauritius boasts relatively high internet access rates compared to much of sub-Saharan Africa – 59% internet penetration as of 2018, according to the World Bank and the International Telecommunication Union. The country is also ranked favourably in internet affordability by the Alliance for Affordable Internet (A4AI) Affordability Report: 13th out of 61 countries assessed worldwide and first in Africa.

Without a list of the range of digital services under the scope of the new VAT provisions, it is unclear which services will be affected, though Netflix and Google Drive are among the services speculated to be taxed. At 15% of the value of “digital or electronic services”, the levy will likely increase the price of affected services – putting them out of reach for many Mauritians. Indeed, similar VAT modifications on online services in Mexico and Chile demonstrate the effects of the increased tax burden on consumers.

With a strong history of democracy and rule of law, legislative constraints that stifle free speech online and expand surveillance show regression into authoritarianism. The introduction of VAT on online services resembles the likes of the Ugandan government’s social media tax and the Zambian government’s tax on internet voice calls. The timing of the tax also seems peculiar given that many Mauritians are relying on digital services during the Covid-19 pandemic. Furthermore, digital platforms have recently been utilised to mobilise opposition against the Mauritian government’s response to the Wakashio oil spill, resulting in over 50,000 citizens participating in an anti-government protest in August 2020.

Thomas Roberston is a 2020 CIPESA Fellow focussing on digital expression and China-Africa relations.

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Reporters Without Borders (RSF) calls on the Mauritian national assembly to reconsider last week’s amendments to the Information and Communication Technologies Act (ICTA), which have drastically reinforced penalties for supposed online abuses a year ahead of the next parliamentary elections.

Under the amendments adopted on 6 November, anyone in Mauritius sending a message via the Internet that causes or could cause something as harmless as “inconvenience” could end up being sentenced to up to ten years in prison.

When originally adopted in 2001, the ICTA referred solely to messages that caused anxiety or distress in those to whom they were addressed, conditions that could be determined by means of a psychological assessment.

But to “restore order” and combat online “excesses,” Acting President Barlen Vyapoory has approved changes that make it possible for any person to file a complaint and seek damages for a post, share or even a like that “is likely to cause or causes annoyance, humiliation, inconvenience, distress or anxiety.”

The extremely vague and broad nature of these terms is all the more disturbing because the maximum penalty for all offences cited in the ICTA has been doubled, from five to ten years in prison, while the previous stipulation that prosecutors have to demonstrate an intent to cause harm has been dropped.

“In the run-up to parliamentary elections in a year’s time, online criticism of the government by journalists doing their job as democracy’s watchdogs is liable to expose them to repeated prosecution and even to extremely heavy sentences,
said Arnaud Froger, the head of RSF’s Africa desk. “The national assembly must reconsider these amendments, whose use could drastically curtail the freedom to inform. This draconian legislation is also a complete contradiction of the ruling party’s promise in 2014 to pass a law facilitating access to information, a law that Mauritians are still awaiting.”

Many Mauritian journalists and publishers have voiced concern about the dangers posed by these amendments. Nad Sivaramen, the publisher of the newspaper L’Express, told RSF he regarded the desire to monitor social networks in the run-up to the elections as “suspicious.”

Rabin Bhujun, the editor of the Ion.news website, said he was concerned that “influential people” could turn this law into “a tool for intimidation and harassment,” exposing those targeted to “arrest and lengthy interrogation.”

Mauritius is ranked 56th out of 180 countries in RSF’s 2018 World Press Freedom Index.

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Mauritius has three television channels, all run by national broadcaster Mauritius Broadcasting Corporation (MBC).

But today President Sir Aneerood Jagnauth criticised the MBC, saying its television broadcasting no longer matched national ideals.

The president, who was speaking at an international conference entitled The Media: Where do we draw the line?, told delegates as he opened the proceedings: “Our media is a dynamic component of our democracy.

“We have seen the creation of private radio stations which nowadays voice out the opinions of our citizens.

“At the time when we started the private radios we had confidence that it was the right thing to do. Today we see the vital role they are playing in our everyday lives, and shaping our democratic conscience.”

But he went on, “However it is noted that our national TV, the MBC, which is under the full control of the Prime Minister, and financially sustained by public money, is run with a mindset of unfairness, partiality, and is not worthy of a democratic nation.

“Sadly MBC TV has become a tool of spin-doctorism and management of public opinion.

“Our public broadcasting service is no longer at the service of our nation’s ideals.

“I hereby make an appeal to the Government for the grant of licences for the setting up of private television stations. I am convinced it is high time now for such a change.”

Later, human rights and media law specialist Geoffrey Robertson QC, lead speaker at the conference, told delegates that moving to commercial broadcasting would require a number of issues to be resolved.

“Where a country moves from having a national broadcaster to having competition from commercial competition, a number of things must be done. It is not quite so easy as perhaps the President suggested this morning,” he said.

There is a need for a guarantee of political fairness in issuing licences, and consideration has to be given to limiting the amount of foreign investment which could be made in commercial broadcasters.

In the UK a number of commercial broadcasters were fined heavily after rigging quiz show results for their own commercial benefit and deceiving the public.

“The history of commercial television has shown that, properly regulated, it can be terribly valuable. Some very fine television programmes have been produced by commercial television under a heavy licensing regime encouraging programmes of quality, but it has also shown terrible examples in Britain of dishonesty, of hoodwinking viewers in search of a quick buck, and even of propaganda,” Mr Robertson said.

He added, “Commercial television has to be introduced carefully, and there are justifications for licensing restraints.”

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Editor-in-Chief Dharmanand Dooharika of the private weekly “Samedi Plus” was incarcerated in the main prison in the town of Beau-Bassin, even though his appeal is pending against the three- month jail sentence handed down Monday by Justice Keshoe Parsad Matadeen of the Mauritius Supreme Court, defense lawyer Ravi Rutnah told CPJ.

Matadeen also sentenced Poovanam Chetty of Contact Press Ltd., parent company of the newspaper, to a fine of 300,000 rupees (US$10,300) and fined Radio Plus 200,000 rupees (US$6900), according to news reports. The parent company and the radio station are appealing the fines, they said.

The convictions stem from press coverage in July and August 2010 of a businessman and disbarred lawyer, Dev Hurnam, who represented a car leasing company in a fraud lawsuit against the local subsidiary of the United Kingdom-based global financial services provider Barclays. The Supreme Court ruled against him. He then made public allegations of partiality against Supreme Court Chief Justice Bernard Sik Yuen. In response to the accusations, the chief justice asked the Mauritian president to take steps to sanction Hurnam, according to news reports. The government’s Director of Public Prosecutions then brought complaints against “Samedi Plus” and Radio Plus, although Hurnam’s comments were widely covered by the Mauritian private press, according to news reports and local journalists.

In its complaint against Dooharika, the Director of Public Prosecutions cited an August 14, 2010, editorial that suggested the allegations against the chief justice should be given credence, according to CPJ research. “Samedi Plus” devoted extensive coverage to the case and Hurnam’s allegations, including the front page, the complaint said. The director accused the journalist of “publicly scandalizing the Supreme Court,” “bringing the administration of justice into disrepute,” and “thereby committing a contempt of court,” and outlined similar accusations against Radio Plus over a July 29, 2010 broadcast interview with Hurnam.

“We condemn the imprisonment of Dharmanand Dooharika and the fines imposed on ‘Samedi Plus’ and Radio Plus, which are not about the administration of justice but about shielding the Supreme Court from criticism,” said CPJ Africa Advocacy Coordinator Mohamed Keita. “We call on Mauritian authorities to immediately release Dooharika on bail pending appeal and we call on the appeals court to overturn these convictions.”

Shortly after the announcement of the verdict Monday, Dooharika fainted at the courthouse and was hospitalized under police guard for high blood pressure until this morning at Apollo Bramwell private hospital, according to local news reports.

Local website Defimedia.info said the sentence marked the first time a journalist had been condemned to prison on the Indian Ocean island. CPJ research shows that three journalists arrested in 2007 were the first to be arrested in the country in 13 years. Those three were released on bail and charges were eventually dropped.

The government of Prime Minister Navin Ramgoolam has been hostile to the independent press, with police interrogations on the rise, according to CPJ research.

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Ramgoolam often uses harsh language but he went too far in a personal attack on “L’Express” editor Raj Meetarbhan, describing him as not being worthy to “shine my shoes.”

Meetarbhan told Reporters Without Borders he was very worried. “The virus of repression is there, the signs are evident and I fear that the independent media in Mauritius will have a sombre future,” he said. “I was in Zimbabwe at the start of the 1980s, when the country was democratic and had a free press. Then I saw it go to hell. I was a direct witness of Robert Mugabe’s excesses, the attacks on journalists and government opponents, and I fear an identical scenario in Mauritius.”

Meetarbhan continued: “Our prime minister is insulting the press. He throws the names of journalists to the crowd, which is tantamount to calling for them to be lynched. If he is not happy, he can write an opinion piece in ‘L’Express’. I will give him space in my newspaper. He says I am not worthy of polishing his shoes? You see the level to which the prime minister is bringing the debate in a country that is supposed to be democratic. He wants to smear ‘L’Express’, accusing it of being in the pay of the private sector and big business. This is spreading racial poison.”

“Such comments by the prime minister are creating an appalling climate between the government and media. They are liable to induce most journalists to censor themselves and do Mauritius’ image a great deal of harm. The fact that they were made just two days ahead of World Press Freedom Day, on 3 May, is particularly shocking,” Reporters Without Borders said.

La Sentinelle, the media group that owns “L’Express”, has been in the government’s sights for years and is the victim of a political boycott.

The Independent Broadcasting Authority censored some opposition messages just a few days before the May Day meeting, while Mauritius Broadcasting Corporation, the state-owned TV station, refused to broadcast a TV ad for a yoghurt drink that made fun of the police. The ad can be seen in Facebook, in cinemas and on the L’Express.mu website.

Mauritius was ranked 65th in the 2010 Reporters Without Borders press freedom index, a fall of 14 places from its position in the 2009 ranking.

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“The crisis in relations between the government and La Sentinelle, which has reached unprecedented proportions, is all the more surprising in a country with a long tradition of press freedom,” Reporters Without Borders said. “It bears all the hallmarks of an attempt by the government to asphyxiate the media group in an act of political revenge.”

The press freedom organisation added: “We condemn this behaviour by Prime Minister Navin Ramgoolam, who often boasts of his country’s modernity but in this case is reacting in a retrograde fashion.”

La Sentinelle chairman Jean-Claude de l’Estrac told Reporters Without Borders: “The measures discriminating against us are not new. We have been subject to a systematic boycott by the authorities for the past four years. The harm that this is causing us is now assuming alarming proportions.”

In the 27 May incident, police stationed outside the capital’s main government building were given orders to deny entry to journalists from “L’Express” and “5-Plus Dimanche”, two of La Sentinelle’s publications. A Radio One journalist was told: “These journalists are not invited to the finance minister’s news conference and will be turned away if they come.”

The political pressure was stepped up during the campaign for last May’s general elections, which returned the government to power. The prime minister, who accuses La Sentinelle of supporting the opposition, warned the editors of “L’Express” that they would pay the price.

The threat began to be carried out as soon as the new government took office in May. A directive was issued to all the ministries, parastatal agencies and libraries to cancel subscriptions to “L’Express”, depriving La Sentinelle of a significant part of its income.

The political boycott of La Sentinelle began four years ago, after a series of critical articles and editorials in “L’Express”. Air Mauritius, in which the state has a majority stake, ceased in 2006 to make any of the group’s publications available on its flights. The same year, the prime minister told state information services to stop placing any advertising in La Sentinelle’s newspapers.

La Sentinelle asked the Supreme Court on 31 May to issue an injunction preventing state officials from denying its journalists access to public events. The court refused to issue the injunction but has set a hearing for 7 June at which the government will be asked to explain its behaviour.

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Reporters Without Borders urges the government to act with restraint and says it was absurd and disproportionate to make use of the police in this case.

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Freedom of the Press 2007: Mauritius

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