Free speech? Zambia’s new internet law fails basic human rights scrutiny

In a statement announcing his decision, the president said that he “hoped that the law would bring sanity in the way that the internet is used in Zambia”. He further stated that this piece of legislation “…is purely to protect citizens from abuse by people who feel they can do or say whatever they want using the veil of cyberspace. This law is aimed at protecting all Zambians, including those who are against it.”

Protecting people from abuse is laudable and at first glance this law has safeguards aimed at protecting children from predators, people who may suffer blackmail and extortion, and those who could lose their money through identity theft through the internet. It also aims to protect people who are harassed and bullied, among other issues. 

However, this new law also contains problematic provisions, which will in the end not protect, but target certain people. If what we have seen in other countries with such laws is anything to go by, this law could also allow for blanket internet shutdowns and suppression of free speech, like we have seen in Ethiopia and Zimbabwe when political tension arises. In such countries these laws have been used to suppress dissent and protect and shield the ruling political elites from public scrutiny. 

Some countries have used these laws to shut down the internet at critical times – like during elections – on the pretext that they were saving the public from vague “national security threats”. In Iran, for example, the authorities shut down the internet following protests in which security forces killed hundreds of people in 2019. Iranian authorities regularly shut down the internet in order to limit access to information. 

The new law in Zambia contains provisions that are incompatible with domestic, regional and international human rights standards. 

Of particular concern are some definitions contained in section 2 of the act. For example, “hate speech”, includes among other definitions, communication that “involves hostility or segregation” towards groups of people on the basis of “economic status”. 

While states have an obligation to prohibit hate speech, this proscription must serve a legitimate purpose and not be disproportionate. This prohibition aims to protect human rights to equality and non-discrimination, but as “hate speech” is a notoriously difficult concept to define, loose definitions such as this are dangerous because a lack of clarity leaves people unsure what expression is allowed or prohibited, leading to self-censorship. 

As such the restriction must be clear that it only applies to conduct which advocates hatred on the basis of national, racial or religious grounds; that such advocacy involves actual incitement to discrimination, hostility or violence and importantly that the incitement leads to actual discrimination, hostility or violence. 

The law in its current form falls far short of this standard.

Where the law is unclear, it is open to abuse and misinterpretation. People could be punished for speaking out against corruption by public officials, or who hold excessive wealth and privilege, if this were improperly construed as “hostility” from the public. This is not a helpful formulation as it has the effect of shielding elected officials from accountability, while punishing those who demand it, the direct opposite of checks and balances that human rights law is meant to ensure. 

Effective protection against fake news

Proponents of the law are adamant that it will protect people who are injured by “fake news”, “misinformation” and “disinformation”. But this argument cannot hold when one considers the negative impact of silencing people who may have legitimate information that saves the public from excessive state overreach. This law will have the chilling effect of silencing people in the face of grave violations or risk their freedom of expression. 

The lack of clarity in definitions also potentially gives the Defence Minister unfettered power that could lead to mass arrests of people. 

For example, in terms of section 2 the minister can decide what is “critical information” in order to determine whether someone has information that the authorities consider critical in order to effect an arrest. In other words, critical information can be whatever the minister thinks it is. For example, Internet Service Providers could have private data seized if the minister deems information they hold “critical”. 

The law, therefore, provides no safeguards to protect the right to privacy. 

As things stand, there is a real danger that the Defence Minister can invoke “national security” reasons for arresting groups of people without public scrutiny or any oversight. The question of what is meant by “national security” – and for whom – is a well-known one, and one frequently abused by states seeking to crackdown on human rights. 

This law is therefore susceptible to abuse of power. 

In a country where religion and politics have been increasingly meshed, in what many see as a way for political elites to strengthen their hold on power, the lack of definition for publication of material that “tends to corrupt morals” could be used as an omnibus provision to deal with people who hold different views from the strict impositions of biblical moral codes despite being atheist or not belonging to the Christian religion. 

It is worrying that enacting this law in a parliament controlled by the governing party could deal with critics be they in Zambia or anywhere else in the world.