Vagueness in cybercrime law

In this country there is a constitutional right that is currently endangered. Our speech, our freedom to say what we want, a vital component of our self-realisation is threatened with extinction by the Prevention of Electronic Crimes Act of 2016. Regardless of which theory of ‘free speech’ you prescribe to in justifying why the government needs to stay far away from the thoughts we articulate, you should be afraid. As the government churns out draconian laws at alarming speed, ‘for the safety of the people’, it is our constitutional rights that are bartered away in the name of security. This one may have just cost us our right to free speech.

An example of this is Section 9 of the Act, which prohibits glorifying an offence, covering even those who disseminate such information. Think of a newspaper publishing an interview with a fundamentalist who might consider suicide bombings to be justified, or an author who writes about a fictional character in a book giving a speech on the merits of terrorism. Both the newspapers and the author would be liable for an offence even if these entities don’t subscribe to such views. This is a textbook case of a provision that has a ‘chilling effect’ on free speech, which is a legal term that describes a constant fear as to what can be said by those we hope will enhance our knowledge as to what exists on the other side of a particular point of view. Such ‘viewpoint discrimination’ is a violation of settled free speech jurisprudence, as it favours one side of the debate over the other.

One of the core objectives that free speech serves is that it allows us to criticise public figures and office holders. A glance at Section 18 shows that it butchers this concept. The damage to reputation envisioned makes no distinction between private and public figures. Public figures, generally, can only sue for damages to their reputation in very narrow circumstances, as elaborated in the famous US Supreme Court case of New York Times v. Sullivan. Section 21 (d) makes it an offence for someone to take a photograph or video of any person and display it without his/her consent in a manner that might harm that person. Again, no distinction is made between private and public individuals, neither does the section bother to define “harm”. Say goodbye to making a video of an election candidate stuffing ballot boxes and putting that on the internet. This legitimate form of public whistleblowing would become an offence. The inherent vagueness of the provision ‘chills’ criticism of the government. No free speech doctrine under any constitution would allow for this.

Then there is the utter disregard for precision in lawmaking. Section 19 deals with harming reputations through the use of “sexually explicit” imagery. ‘Sexually explicit’ is a term that has spawned a plethora of cases in the US merely because it is so hard to define without trespassing into the realm of protected speech. Precision with regard to a term like this is important if we don’t want valuable speech in art and literature to suddenly become illegal. Vague laws take away breathing space for such speech, suffocating it in a blanket of doubt.

Vagueness and overbreadth pervade multiple sections of the Act. Both are elements that cause legislation to be struck down under general free speech jurisprudence. Vagueness makes everyone think twice before writing or speaking; while overbreadth results in outlawing not just genuinely harmful speech but also benign and valuable speech. This legislation does not understand this. It does not comprehend simple free speech concepts. Our legislators have not even bothered to look at the harm to free speech that they are causing. Furthermore, numerous sections indulge in blatant ‘viewpoint’ or ‘content’ discrimination, which are some of the most severe forms of unconstitutional speech legislation.

These are only some of the problems with the Act. Its enforcement mechanisms raise multiple privacy and ‘fair trial’ issues that contravene the Constitution. We may not realise it yet, but this Act is one of the most glaring attacks on our constitutional right to free speech and it needs to be challenged. Our journalism, our literature, our discourse is at stake. This government has constantly legislated to annihilate our fundamental rights. We need to speak up before doing so is no longer an option.

Published in The Express Tribune, August 30^th, 2016.

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