By Yamikani Ngoma and Innocent Siachitoba
Introduction
On 12th February, 2021 the President of the Republic of Zambia, during the Fifth Session of the Twelfth National Assembly delivered a speech on the application of the national values and principles where he, among others, highlighted the positive and negative use of social media in the country.[1]
As the President indicated, the use of information and communication technologies (ICTs) is growing and impacting on the commercial and social fabric of communities globally. The use of e-platforms for business and social interactions has to a great extent continued to change the social attitudes, community values between individuals and is also changing the workplaces and workplace interactions.
This article endeavours to analyse the positive and negative use of social media in Zambia. It further highlights the law that governs the use of social media and explores the question on whether e-platforms ought to be specifically regulated.
What then is Social Media?
Social media refers to the means of interactions among people in which they create, share, and/or exchange information and ideas in virtual communities and networks.[2]
The types of social media are; Social Networks that include Facebook, Twitter, LinkedIn, Media Sharing Networks such as Instagram, Snapchat, YouTube and Discussion Forums: Reddit, Quora, Digg and Zoom, among others. Social media platforms, like other media platforms, have both positive and negative aspects.
Positive use of social media
- Social and electronic media platforms such as Facebook, Twitter, Instagram, Skype, WhatsApp and other web applications continue to provide opportunities for all citizens, increasing access to services and providing for instant collaboration with various stakeholders;
- Social media have had positive effects on education during the COVID-19 period as it has enabled leaners and scholars to receive and/or disseminate information;
- Social media has been used by organisations and business entities to promote their businesses, corporate image and their ideologies;
- Social media has been used to raise awareness on important issues like COVID-19 awareness;
- Social media has continued to change, the social attitudes, community values between individuals and it has also changed workplace interactions; and
- Social media has had a positive effect on churches during COVID-19 period as it has enabled worshipers to worship through e-platforms.
Negative use of social media
- Stealing of identities and impersonation; i.e, unsuspecting members of the public are duped into believing that they are communicating with someone in a position of authority or a politician on social media platforms, such as a minister or others and they are being offered assistance in getting employment, loans, contracts, scholarships at a fee. An example of such acts was where the Police in Eastern Province arrested a 39-year-old man for impersonating Lusaka Province Minister Bowman Lusambo and for obtaining money by false pretenses.[3]
- Cyber-bullying and harassment: Social media has been used by individuals to make threatening and disparaging comments to or about another individual. This has in some instances involved threats of violence to the person or damage to property.
- Transmission of pornographic images: In the recent past pornographic materials have been trending on social media, where young and old people have displayed their naked bodies. An example was when the Police arrested a Lusaka-bas ed musician and his girlfriend for producing pornographic and obscene materials and charged with producing and distributing pornographic materials.[4]
- Fraud and Scams: Unscrupulous people have created online accounts where they purport to have certain goods for sale at a cheaper price and tell people to send a deposit before delivery of the products when in fact they do not have any product to sale. An example was when a named opposition leader while acting together with his daughter, obtained money by false pretences from over 120 people who expressed interest in purchasing the land situated near Kenneth Kaunda International Airport which he had advertised online.[5]
- Potential breach of privacy: There are people who are using e-platforms to intercept communication and illegally record or read messages. An example was when Drug Enforcement Commission arrested a named South African National for unauthorised interception of or interference to data, interception of communication without lawful authority and use of interception devices without lawful authority contrary to the laws of Zambia.[6]
- Dissemination of fake information: People are using the e-platforms to spread fake news.
Social Media and the Law in Zambia
There is no specific law that deals with social media in Zambia. Discussions around legislating social media use need to consider the freedom of expression and other rights, which constitute essential foundations of a democratic society. However, we have legislation that has a bearing on the use of social media in the country as discussed below.
Freedom of expression
Every person is entitled to the fundamental rights and freedoms contained in the Constitution.[7] The freedom of expression is enshrined in Article 20 and it is clearly stated that any person has the right to share, receive, hold opinions, receive ideas and information. It is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also as to those that offend, shock or disturb.[8] However, the freedom of expression is not absolute. It is measured against the interest of defence, public safety, morality, public health; and protecting reputations, rights and freedoms of other persons.
- Right of Privacy
Privacy of every person regardless of his or her socio-economic status in society must be respected. This is more vividly explained in the Zambian Constitution[9] , Article 17 (1) where it is states that;
Except with his own consent, a person shall not be subjected to the search of his person or his property or the entry by others on his premises.
The Constitutional provision on the right to privacy is further strengthened by Section 64 of the Electronic and Communication Transactions Act[10] which categorically prohibits intercepting someone’s communication and also prohibits illegally recording someone without his/her consent.
This entails that every person has a right to privacy from an intrusion on his or her personal life without his authorisation, publicising his private facts without consent and also putting the person in the position where his dignity is maligned. This therefore, entails that even those using social media, they ought to take into account the provisions in the law that prohibits disclosing one’s personal details without his express authorization as doing so, the law may take its course.
- Pornographic materials
The Electronic Communications and Transactions Act[11] in section 102 prohibits anyone from producing, sharing and distributing pornographic materials.
(c)A publication contrary to public interest
The Penal Code prohibits people from publishing an unauthorised information,[12] and guides on what should be shared with the public and how. Sections 53, 54 and 55 give the President power to prohibit a publication contrary to public interest. The public interest can be understood as anything that has the potential to affect the rights, health, finances or socio-economic status of the public at large.
Sedition
It has been noted that unscrupulous people have been using social media to conduct, distribute and publish seditious materials. Sections 57 (1) and 60 of the Penal Code prohibit the printing, publishing, distributing or reproducing seditious materials. The aspect of reproducing seditious materials has been a common trend among social media users where they share and forward messages without realising that they are committing an offence.
Defamation
It has been observed that people make defamatory statements on social media. However, the Defamation Act[13] in sections 3,4 and 5 prohibits bringing any person into hatred, ridicule whether by writing or word of mouth. With regards to false news and fake stories on social media, defamation can be prosecuted as a crime, and is privately actionable in the Courts with no limit to the damages available as a remedy. Further, social media users need to be alert to the information on social networking sites and use multiple sources to identify the truth.[14]
Other Penal Code Provisions are effective as against perpetrators who commit different offences using social media, among others, section 102 prohibits personating or falsely representing any person employed in the public service. Section 265 prohibits fraud by any person, section 297 prohibits attempts at extortion by threats.
Further, the country has been developing other pieces of legislation to combat the abuse of social media platforms, e.g. the Access to Information Bill which aims at increasing openness and transparency, guaranteeing freedom of information and the right to access information[15] and the Cyber Security and Crimes Bill, 2021 which is aimed at protecting persons from cybercrime as mentioned in this article.
Critique
Having discussed the benefits and negative use of social media, it has been noted that social media has no specific law that regulates it. However, after a careful consideration of other laws it was observed that the various pieces of legislation are used to regulate the use of social media though there is need to harmonise the law to avoid conflict of laws and/or duplicity.
Now, the question is; is it necessary to have one specific legislation that will govern the use of social media in Zambia?
Conclusion
Social media and e-platforms have a great impact on our social, cultural, and economic values and many people are utilising these platforms productively such as to catch up with friends, endorse or market their businesses or access valid news faster. Despite the positive aspect of these platforms, they pose a great danger that has been highlighted in the article such as cyber bullying, insults, aggressive behaviour, fraud, pointed abuse and pornography, among others. Such dangers and behaviours place a tremendous risk on the moral and economic fibre of the Zambian society, and must be fought. Further, such bad practices must not be allowed to become the norm in society.
FOOT NOTES
[1] The President commended those that are using social media positively to promote the image and interests of the country. He further retaliated that there are some individuals who abuse social media.
[2] https://communications.tufts.edu/marketing-and-branding/social-media-overview/
[3] https://www.lusakatimes.com/2020/04/29/281455/,
[4] https://daily-mail.co.zm/…/6172-bobby-east-nabbed-for…
[5] https://www.lusakatimes.com/2019/10/07/
[6] https://www.lusakatimes.com/2017/07/08/dec-arrest-south-african-supply-equipment-cheap-international-calls/
[7] Article 11 of the Constitution, Chapter 1 of the Laws of Zambia
[8] Handyside v United Kingdom, Merits, App No 5493/72, A/24, [1976] ECHR 5, (1976) 1 EHRR 737, (1979) 1 EHRR 737, IHRL 14 (ECHR 1976), 7th December 1976, European Court of Human Rights [ECHR]
[9] Ibid
[10] Electronic and Communication Transactions Act ,No.21 of 2009.
[11] Ibid
[12] The Penal Code Act , Chapter 87 of the Laws of Zambia
[13] Defamation Act
[14] Zambia Law Development Commission Newsletter January- March 2017
[15] Freedom of Information Bill, 2019