Zambia Law Development Commission

CYBER BULLYING: DOES THE LAW PROVIDE ADEQUATE PROTECTION?

FILE Picture courtesy of:https://www.childinthecity.org/

By Otema Musuka

Introduction

On 3rd March, 2021 Lusaka Times reported that, Zambia Information and Communications Technology (ZICTA) in collaboration with Cyber Hygiene Zambia[1] and other partners were at the heart of the movement aimed at changing the mind sets of those yet to appreciate that access to digital platforms comes with responsibility. And speaking in an interview upon arrival in Livingstone, Captain Thokozile Muwamba the first Zambian female fighter pilot, and Mwangala Maunga participated in the ‘walkathon’ from Lusaka on 20th February, 2021 to raise awareness on cyber bullying and fake news.

ZICTA Director-General Patrick Mutimushi said “The expected output of this nationwide publicity was aimed at discouraging cyberbullying will help enhance the ZICTA ‘Be your sisters’ and brother’s online keeper’ initiative aimed at creating youthful online ambassadors who will promote productive use of the internet,” [2] While ZICTA Consumer Protection and Compliance Manager, Edgar Mlauzi observed that the Electronic Communication and Transaction Act of 2009, has some lacunas, which must be addressed under the proposed Amendment Bill.[3]

This article, therefore, broadly looks at the cyber bullying phenomena and related vices in Zambia. It  also looks at the protection provided by the law.

Defining Cyber Bullying

Cyber bulling is defined as the use of speech that is defamatory, constituting bullying, harassment or discrimination, and the disclosure of personal information that contains offensive, vulgar or derogatory comments.[4] It involves the use of information and communication technologies such as email, cell phone text messages, instant messaging, defamatory personal websites, and defamatory online personal polling websites to support deliberate, repeated and hostile behaviour by an individual or group that is intended to harm others.[5]

It must be appreciated that some of the harmful activities in Cyberspace-which is basically the internet (a combination of computers, computer networks and technology) might result in Cybercrime- which is all the activities done with criminal intent in Cyberspace.[6]

Cyberspace brings together the potentially exciting cocktail of technology, and its unique group of users, within the context of anonymity and an environment lacking in consistent norms, it is possible to engage into cyber bullying with impunity and people with intelligence, have been grossly misusing this aspect of the Internet to perpetuate cyber bullying.[7]

The Cyber Bullying Phenomena

In 2021, ZICTA received 3,075 cases of child abuse online, 615 fake news reports, 551 cyberbullying, 126 identity thefts and 1,150 cyberbullying last year. While the use of technology can be advantageous in doing business, education and social activities among others, mismanaging it could have serious repercussions.[8]

A resident of Lusaka’s Villa Elizabetha, Jennipher Nsofu, 46, says having experienced cyber bullying, her wish is to completely see the trend come to a stop. “After my failed marriage, the information regarding my marital life found itself on social media. The experience was not pleasing. I got a lot of calls from people asking what happened. At that point, I condemned myself and felt like what happened was all caused by me alone,” Ms Nsofu says. She says because of that experience, her ambitions that time were killed, she damned all achievements and aspirations downgrading that powerful woman she has been for years. “I don’t want to experience that anymore, and I would not wish it on anyone whether male or female”.[9]

On 20 November, 2020 an online publication News 24/7, on its Facebook page reported that “a 17 year old year old girl commits suicide due to cyber bullying, a pupil Of Munali Girls takes her Own Life.” It went on to add that “she was a victim of cyber bullying by her peers and was often depressed because of that.”[10]

Expressing concern at the level of Cyber bullying, especially on women in the country, Zambia Women Parliamentary Caucus (ZWPC) Chairperson, Professor Nkandu Luo, who is also Minister of Higher Education said “cyber bullying in the country, especially against women has reached alarming levels and is frightening. There is urgent need to address the increasing number of cyber bullying in the country. Leaders, especially women, please let’s try to lobby for statutes to deal with the alarming levels of cyber bullying in the country…the public should instead use social media for development and not destruction of the nation….Women leaders only make headlines for what they wear and not for their positive contributions and achievements to the nation. We need to stop mud-sling each other on social media and discuss topics that will take the nation forward”[11]

Government in response to these developments, through Chief Government Spokesperson Dora Siliya, in a statement, informed the nation that Cabinet approved, for publication and introduction in Parliament, The Cyber Security and Cyber Crimes Bill, 2021.[12] This came after the approval of the National Cyber Security Policy at the last Cabinet Meeting held on 11th January, 2021. Cabinet raised concerns at the lack of a comprehensive legislation that provides for cyber security in the country that offers protection against cybercrime or that provides online protection, further, in line with the Policy, intends to promote the responsive use of social media platforms. [13] Ministry of Information and Broadcasting Services Permanent Secretary Amos Malupenga described the bill as progressive and that government’s interest stems from its responsibility to ensure the safety of all citizens as they communicate using online platforms.[14]

Legal Framework to Deal with Cyber Bullying

Zambia does not have a comprehensive legal structure that deals with cyber bullying specifically, but it does have laws that can deter and prosecute cyber bullying. It only depends on the offence that is considered as a cybercrime, with recent developments in the new surrounding legislative proposals to deal with cyber bullying with a view of providing guidance for an effective framework capable of addressing this new crime, ZICTA[15] working with the police, have indicated that perpetrators of cyberbullying are penalized based on the particular offense committed. “With the Zambia Police, it goes with the criminal act committed. If you have defamed someone and the act is tantamount to criminal libel, we charge for that. The same applies to sexual harassment.” [16]

Being that cyber bullying is a relatively new social phenomena the new crime may be addressed by the following law:

The Penal Code[17]

Under section 137. Indecent assaults on and indecently insulting female’s assault (technical assault that does not require physical contact), and defamation section 191 Libel, both remain criminal and civil wrongs under current Zambian law. Section 60- which recognises the promotion of feelings of ill will or hostility between different communities or different parts of the community as amounting to sedition and Section 61. Which deals with Persons deemed to have published a seditious publication, and under section 69 Defamation of President, while under section 70 which deals with expressing or showing hatred, ridicule or contempt for persons because of race, tribe, place of origin or colour it does not deal with bullying. Though section 131 does provide some protection against uttering words with the intent of wounding religious feelings, it only applies to verbal words used not written words. However, under section 179. Use of insulting language is criminalised,

The Anti-Gender Based Violence Act[18]

The Act provides Under section 3 for gender-based violence which means any physical, mental, social or economic abuse against a person because of a person’s gender…Further, the section provides for physical, mental, social or economic abuse[19] which means any act, omission or behaviour which results in death or likely result in the direct infliction of physical, sexual or mental injury to any person, and may include intimidation, harassment and stalking. The law, therefore, can provide some effective response against cyber bullying, especially towards women and young girls.

Gender Equity and Equality Act [20]

An Act to prohibit harassment, victimisation and harmful social, cultural and religious practices; provide for public awareness and training on issues of gender equity and equality; provide for the elimination of all forms of discrimination against women, empower women and achieve gender equity and equality by giving effect to the Convention[21]

Under Section 2, which is the interpretation Section of the Act, it defines “harassment ” to means engaging in conduct that induces in a person the fear of imminent harm or feelings of annoyance and aggravation, and includes— (a) sexual harassment; (b) psychosocial harassment; (c) making persistent, unwelcome, non -consensual communication or contact with a person, including— (i) following, pursuing or accosting the person; (ii) watching, loitering outside or near a building where the person resides, works, carries on business, studies or happens to be; (iii) repeatedly making phone calls or using a third party to make phone calls to the person, whether or not conversation ensues; (iv) repeatedly sending, delivering or causing the delivery of unsolicited, offensive or abusive letters, telegrams, packages, facsimiles, electronic mail, objects or messages to the person; or (v) engaging in other menacing, annoying or aggravating behaviour; “ harmful practice ” means a social, cultural or religious practice which— (a) undermines the dignity, health or liberty of a person; or (b) results in physical, sexual, emotional or psychological harm to a person;[22]

Conclusion

Though cyber bullying is considered an antisocial behaviour and not strictly a criminal act by some people. Recent developments suggests that cyber bullying can be considered as a criminal and civil wrong under the law. It seems then that the current law does provide some safeguards against this ‘crime’ in cyber space. Therefore, there is need to conduct a comprehensive law review. In particular, there is need to amend the relevant provisions of the Penal Code and other penal laws to combat cyber bullying. In the alternative a question may be asked on whether existing laws that were designed for real-world (offline) crime can be used to target cyber bullying. Whichever the case, the law should be enhanced to address the phenomena of cyber bullying.

 

 

FOOT NOTES

[1] Director-General Patrick Mutimushi noted that the number of complaints received of people who had been cyber bullied had continued to rise, particularly in the case of women and girls.

[2] An NGO that focuses on awareness programs of the threats that cyberspace comes with.

[3] In 2018, Government approved the repeal of the Electronic Communications and Transactions Act, No 21 of 2009, and the replacement of the Act with three standalone laws that would be in line with regional and international best practice and would be responsive to the needs of the Zambian people. Therefore, the ECT Act of 2009, was to be repealed and replaced with the following laws: (a) Electronic Communications and Transactions Act (b) Data Protection Act; and (c) Cyber security and Cyber Crimes Act.

[4] Belsey, B, ‘Fair play at school – fair play in society towards a school without bullying! A manual for teachers and head teachers’, Daphne project, 2005. Available at www.cyberbuying.ca/facts-st.html/ accessed 3/3/2021), Willard N, Off-campus, harmful online student speech, Journal of School Violence 1(2), p 66, 2003./ accessed 3/3/2021

[5] Belsey, op cit.

[6]http://www.itu.int/ITUD/cyb/cybersecurity/docs/Cybercrime%20legislation%20EV6.pdf?utm_source=Contextly&utm_medium=RelatedLinks&utm_campaign=AroundWeb

[7] http://www.multiresearch.net/cms/publications/CFP7312018.pdf

[8] https://www.znbc.co.zm/news/zicta-denounces-cyber-bullying/ accessed 7/3/21

[9] Ibid

[10] https://web.facebook.com/102629018164682/posts/17-year-old-girl-commits-suicide-due-to-cyber-bullying-pupil-of-munali-girls-tak/199071151853801/?_rdc=1&_rdr / accessed/ 11/3/21

[11].https://www.lusakatimes.com/2020/06/22/caucus-for-women-parliamentarians-to-sponsor-a-private-members-motion-in-parliament-to-address-the-cyber-bullying/ Accessed 5/3/21

[12] (https://zambiandigest.com/2021/02/cabinet-approves-cyber-bullying-legislation-to-curb-social-media-abuse/ accessed on 2/3/21)

[13] Ibid

[14] (http://www.xinhuanet.com/english/africa/2021-02/24/c_139764069.htm accessed 4/3/21)

[15] Much of the efforts to deal with cyber bullying have been spearheaded by ZICTA, which is the regulatory body responsible for regulating Information Communication Technology (ICT) and postal and courier services in Zambia. It is established by three Acts; the Electronic Communications and Transactions Act,[15] the Information and Communications Technologies (ICT) Act[15], and the Postal Services Act.

[16] Spokesperson Esther Katongo told TechWatch. Ms. Katanga added: “We also use the Electronic and Transactions Act and this one has a lot of provisions. For as long as the act amounts to crime, the Zambia Police moves in.”

[17] Penal Code chapter 87 of the laws of Zambia

[18] Anti-Gender Based Violence  Act No.1 OF 2011

[19]https://survivingeconomicabuse.org/what-is-economic-abuse/ Economic abuse refers to a form of Domestic abuse takes many forms. Abusers may restrict, exploit and sabotage their partner’s access to money and other resources, such as food, clothing, transportation and a place to live. This is economic abuse, and it is designed to limit someone’s freedom. It is commonly experienced within a pattern of behaviour known as coercive control.

[20] Gender Equity and Equality Act [20]No. 15 2015

[21] on the Elimination of all Forms of Discrimination against Women, the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa and the SADC Protocol on Gender and Development; and provide for matters connected with, or incidental to, the foregoing

[22] Gender Equity and Equality Act No. 15 2015

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