CYRILLA Applied Research and Advocacy Grants: Meet our Recipients!

In April, we announced that we were accepting proposals for our CYRILLA Applied Research and Advocacy grants — we received over 50 submissions from both organizations and individuals across the world. After a  competitive selection process, we’re pleased to announce our five grant recipients! It was important that we support a wide, diverse range of projects, and awarded a grant to each region represented in our CYRILLA Collaborative; with the exception of Latin America, which, due to the number of proposals received from the region, was awarded two. Read more about all our grant-supported projects below:

Analysis of judicial cases on gender violence and privacy on the Internet in ParaguayTEDIC

Feminist digital rights organization, TEDIC, will be undertaking a research project to understand how the courts in Paraguay address online gender-based violence with a focus on the unauthorized dissemination of intimate images and videos. Recent cases in Paraguay have brought to the fore the impact of this practice on women, who face social and economic consequences, including job losses, street harassment, depression, and, in some instances, suicide. Within the last year alone, more than 1,200 complaints of unauthorized dissemination of intimate images and videos were made to the Prosecutor’s Office, and TEDIC will be analyzing legal processes and public discourse to reflect on the relationship between gender and digital media.

Between Data Protection and Electoral Propaganda: comparative analyses of legal frameworks governing online political propaganda in Latin AmericaInternetLab

Following the Cambridge Analytica scandal and the marred election of Brazilian president Jair Bolsonaro, allegations of voter manipulation and concerns about the lawfulness and the transparency of the digital marketing techniques employed by electoral campaigns, are at the forefront of global politics. The internet altered the nature of political communication, and the use of online manipulation, disinformation and radicalization as political tools has been widely covered. But these tools are only available due to the increasing technological capacity to collect, process, and store personal data, which has been a valuable asset to political campaigns. Understanding the interaction between the legal frameworks that govern electoral campaigns and data protection, in essential to both guarantee citizens’ right to privacy and to foster authentic political debate. Brazil-based policy think tank, InternetLab, will therefore map the emerging and existing rules that regulate the use of personal data in political campaigning in Argentina, Brazil, Chile, Colombia, Mexico and Paraguay. The team will investigate the use of direct marketing techniques by political campaigns; practices of database sharing among parties, candidates, supporters and marketing companies; the use of profiling and microtargeting techniques to convey political propaganda; and the guarantee of voters’ personal data protection and privacy rights. InternetLab hopes the project will establish the groundwork on which the development of a bridge between electoral regulations and data protection regimes can advance.

What’s sex got to do with it? Mapping the Impact of Questions of Gender and Sexuality on the Evolution of the Digital Rights Landscape in IndiaInternet Democracy Project

Questions relating to gender and sexuality have driven a number of key court cases in recent years, whose importance does not only affect the evolution of gender and sexuality rights in the country, but of digital rights as well. From intermediary liability for content that is discriminatory or violent against women to anonymity on social media for victims of sexual crimes, the cases exemplify a deep tension running through Indian jurisprudence: that between the constitutional guarantees of equality, including gender equality, and the profound gender discrimination that results from traditional concerns about women’s sexuality and ‘reputation’ in what remains in large part a socially conservative society. Such tensions also run through the various provisions of digital rights related legislations that already explicitly address challenges that sit at the intersection of gender and sexuality rights. The Internet Democracy Project, whose research and advocacy focuses on the experiences of marginalized groups online, will systematically analyze the profound ways in which matters concerning gender and sexuality are impacting the development of the digital rights framework in India’s socially conservative society. By looking at digital rights-related laws and cases, the IDP hopes to provide both feminists and sexuality activists, as well as digital rights activists, with expanded legal knowledge to intervene in these debates successfully.  

Privacy, Data Protection and Surveillance Legal Frameworks in the Middle East: A Case Study on COVID-19 Contact Tracing ApplicationsJoey Shea

The fast proliferation of COVID-19 contact-tracing applications, in response to the historic global health crisis, raises important concerns over privacy, data protection, and surveillance. There are legitimate concerns about whether these applications strike the correct balance between surveillance in the service of public health, while also protecting their users’ privacy. Moreover, given the immensity of the crisis, many NGOs and human rights organizations have expressed concern that states will use the crisis to exploit special exemptions and emergency powers in the law to expand state power and track citizens long after the end of the coronavirus. 

In order to thoroughly address and evaluate these concerns, Joey Shea, a researcher and analyst specialized in digital information controls and digital security in Egypt and the Middle East, will examine the legal frameworks of contact tracing applications, document their deployment and use, and explore broader questions about the health of data governance, data protection, privacy and state surveillance in the Middle East. To accomplish this, Joey will conduct a comprehensive overview of the applications as well as legislation and cases pertaining to data protection and surveillance from a number of states in the region, and assess the privacy implications of these legal frameworks.

An analysis of legislation concerning the introduction of digital identity programs in sub-Saharan Africa, and the risks and challenges posed by these Digital ID programsRose Mosero Maina

The adoption of digital ID systems has been hailed as transformative for many developing countries — sub-Saharan African states are no exception. In particular, proponents of digital ID espouse an improvement in the efficiency of public service delivery, as well as its role in digitizing economies. However, it is increasingly becoming apparent that these countries face a confluence of challenges in the implementation of digital ID programs that their legal frameworks are not equipped to remedy. 

Currently, there are approximately 1 billion people around the world who lack official proof of identity, and close to half of them reside in sub-Saharan Africa. Digital ID systems risk further excluding these vulnerable groups, like refugees, from the benefits of digital ID, or exposing them to surveillance threats and discrimination. The adoption of digital ID systems therefore requires strong legislative and policy frameworks to both remedy the lack of formal ID and to guard against misuse. Rose Mosero Maina, a lawyer and advisor to the Kenyan Ministry of ICT, Innovation and Youth Affairs, will research and analyze the implementation of digital ID systems in South Africa, Kenya, Cameroon and Nigeria through their regulatory instruments, in order to evaluate their impact on the rights of vulnerable groups in the region.

Look out for our completed projects this Fall!

Don’t @ Me, @ My Lawyer: The Rappler Case

Don’t @ Me, @ My Lawyer is where we dive into the legal nuances of the latest digital rights stories.

Press freedom in the Philippines was put on trial in the case of Maria Ressa, executive editor and CEO of investigative news website, Rappler. Ressa and former Rappler writer, Reynaldo Santos Jr., were convicted of cyberlibel by the Manila Regional Trial Court on June 15, but the proceedings have been flawed from the outset for years.

The case concerns an article published on Rappler in May 2012 — the article reported that the former Chief Justice used a car registered to businessman Wilfredo Keng. Citing an intelligence report, the article detailed Keng’s questionable behaviour and activities, including that Keng was under surveillance by the National Security Council for his alleged involvement in “human trafficking and drug smuggling.” More than five years later, in October 2017, Keng filed a cyberlibel complaint about the article with the Cybercrime division of the National Bureau of Investigation (NBI).

Two major procedural objections were raised by Ressa after the complaint was filed. Firstly, the Cybercrime Prevention Act of 2012, under which the complaint of cyberlibel was filed, was signed into law in September 2012 — four months after publication of the article. The principle that criminal laws are not retroactive is an essential component of any legal system which claims to uphold the rule of law. Accordingly, Ressa and Santos could not be criminally liable for conduct that was not, in fact, a crime when it occurred. However, the head of the NBI Cybercrime Division dismissed this; asserting that the “continuous publication” rule applied, and because the article remained published and accessible even after the statute was enacted, this was not the retroactive enforcement of a law. Many jurisdictions across the globe do not apply the continuous publication rule in defamation or libel cases because it unjustifiably restricts freedom of expression.

The NBI eventually referred the complaint to the Department of Justice for prosecution, and in early 2019, the DOJ indicted Ressa and Santos. In responding to their counter-arguments, the DOJ cited the “multiple publication rule”, according to which, Rappler’s correction of a typographical error in the article in 2014, was considered a “republication.” Therefore, this constituted a “distinct offense” that Ressa and Santos could be held liable for, since the republication occurred after the enactment of the Cybercrime Prevention Act of 2012.

After raising the issue during the investigation stage, Ressa eventually filed an appeal to dismiss the cyberlibel charges on prescriptive grounds. Citing a Supreme Court ruling which held that cyberlibel is “not a new crime but is one already punished” under the Revised Penal Code, it was argued that cyberlibel, like ordinary libel, has a prescription period of one year. Therefore, even if the 2014 edits were accepted as a “republication” Keng only filed his complaint in 2017 — two years after the matter had already prescribed. The Manila Regional Trial Court, however, denied the appeal, and upheld the DOJ’s contention that the Cybercrime Prevention Act is a “special act” and therefore attracts a prescription period of 12 years in accordance with Act No. 3326, concerning violations penalized by special acts.

Despite these glaring legal irregularities, the trial proceeded through to judgement, in which Ressa and Santos were convicted and sentenced to between a minimum of 6 months and 1 day and a maximum of 6 years imprisonment. The decision drew criticism from powerful foreign government agencies, social media companies, leading newspapers and journalists around the world, and has led to local officials taking action to amend the prescription period for cyberlibel.

The cyberlibel charges weren’t the only legal hurdle thrown at Rappler in the last few years. In 2017, the Securities and Exchange Commission (SEC) opened an investigation into the foreign investment and ownership of Rappler for “possible violations of nationality restrictions on ownership and control of mass media entities.” In his 2017 State of the Nation Address, President Duterte, the subject of a number of Rappler investigations, claimed the company was “fully owned” by Americans. The Philippine Constitution of 1987 limits the ownership and management of mass media in the country to its citizens. Rappler has debunked these claims, but the SEC nevertheless revoked Rappler’s license to operate in 2018 for violating the Constitution and related Anti-Dummy law by issuing financial instruments (Philippine Depository Receipts or PDRs) that allow for foreign investment. Rappler is legally permitted to issue PDRs as they do not amount to rights of ownership or control over the company. Rappler then appealed the decision, which was upheld, but the Court of Appeals directed the SEC to review their decision in light of Rappler’s foreign investors “donating” their PDRs to Rappler’s local managers.

Flowing from this, the Justice Secretary ordered the NBI to investigate Rappler’s criminal liability for constitutional and legislative violations. Additionally, in 2018, the Bureau of Internal Revenue filed a case of tax evasion against Rappler and Ressa for not supplying “correct and accurate information in its 2015 income tax return.” The Bureau argued that because Rappler issued PDRs, it was a “dealer in securities” and therefore subject to further obligations under the tax code. However, Rappler’s lawyers disputed this — Rappler was the issuer, and not the “dealer” of the PDRs, and PDRs are not equivalent to shares. The matter is still proceeding to trial despite Rappler filing appeals and motions to quash.

The legal gymnastics performed by authorities in the Rappler case clearly point to a targeted crackdown against independent reporting in the Philippines. Currently, journalists can be held liable for their online reporting for over a decade after its publication, and aren’t even guaranteed protection if they adhere to professional and ethical standards, since the legislature may retroactively amend those standards anyway. Additionally, publications may be shut down based on controversial, subjective, and sometimes wholly incorrect, interpretations of the law by officials, as an assortment of the country’s government agencies try their hand at undermining press freedom. The resulting violation of the core tenets of the rule of law in the Philippines has grave consequences for its democracy.

#DigitalLawsAsia

On Monday, former CNN journalist, Maria Ressa, was convicted of “cyber libel” by a court in the Philippines. Ressa is the CEO and executive editor of Rappler – a news website that has frequently investigated and critically reported on Philippine President Rodrigo Duterte, who has referred to the site as “fake news”. The conviction has been cited as a blow to press freedom  and democracy in the Philippines, and is yet another example of the direct relationship between restrictions on internet freedoms and rising authoritarianism.  

We discussed the repressive laws in the region in our #DigitalLawsAsia Twitter campaign on June 10 – 12. Hosted in collaboration with the Association of Progressive Communications (APC), the purpose of #DigitalLawsAsia was to explore the human rights impacts of digital regulation in South and Southeast Asia.

Day 1 of the campaign set the tone for the rest of the week by defining digital rights and establishing our rights-based approach to digital laws. APC also emphasized that as the role of the internet in society grows in prominence it is imperative that governments adhere to international human rights standards in formulating and implementing digital laws. Although these laws govern virtual spaces, they interact with ‘traditional’ fundamental human rights, such as the rights to free expression, information, privacy, assembly and association, equality, and education.

Across Asia, APC noted, digital laws vary in their compliance with human rights standards: some are progressive, some omit rights-respecting language, and others flagrantly violate digital rights under the auspices of legitimate government action. To demonstrate, APC cited examples from its 2017 Unshackling Expression report, which documented online free expression laws in various Asian countries. These laws and cases, as well as digital rights jurisprudence from Asia broadly, can be accessed on CYRILLA, and users were directed to use the resources to evaluate how their country’s approach differs from other countries in the region. As part of the campaign, we released a video tutorial to assist with navigating the database:

Day 2 focused on digital laws in South Asia, as the subcontinent contends with rising censorship and criminalization of online expression, from content restrictions to internet shutdowns. APC kicked things off by taking a deep-dive into the many statutes and cases governing online free expression in India, including a few recent positive outcomes from the Supreme Court.

Pakistan also boasts a range of tools to censor online speech — the latest being The Citizen Protection (Against Online Harm) Rules, which is currently under deliberation. The harsh provisions of Bangladesh’s Penal Code and Digital Security Act were then highlighted for eroding the Constitutional guarantee of free thought and free expression in a country that has recently seen online political dissent turn fatal. Finally, Body & Data engaged with the impact of Nepal’s digital laws on the expression of gender and sexuality in the country. Body & Data will be expanding on this in a report for CYRILLA to be published soon, and we will add the relevant legislation and cases from Nepal to our database.

Southeast Asia was showcased on Day 3, as participants from Malaysia, Thailand, Cambodia, the Philippines, Myanmar and Indonesia led the discussion around the contraction of the online space due to repressive laws which target religious or ethnic minorities, LGBTQ+ individuals, and political dissidents. Indonesia has the most internet users in the region, but routinely fails to live up to its human rights obligations regarding expression and privacy. In August 2019, the government imposed internet shutdowns in Papua and West Papua amid anti-racism protests. However, earlier this month, a court in Jakarta ruled that the shutdowns were unlawful. The Philippines, despite its already concerning approach to digital rights, still has a number of laws in the pipeline to further restrict online free expression.

#DigitalLawsAsia brought together digital rights organizations and activists from South and Southeast Asia; highlighting the most pressing issues in both regions, and identifying trends and divergences in digital laws across their respective countries. With the resources and tools available on our open, multilingual database, CYRILLA supports their research and advocacy efforts in the fight for better digital laws and policies that respect human rights. If you would like to get involved, contact us at collaborative[at]cyrilla.org.

A special thank you to @bodyanddata, @iNetDemocracy, @SFLCin, @internetfreedom @mmfd_Pak, @DigitalRightsPK, @cchrcambodia, @wahyudidjafar, @SUARAMtweets, @FMA_PH, @li_saga, @yingcheep, @iLawFX, @ManushyaFdn, @accessnow for participating in #DigitalLawsAsia.

How to Find Digital Rights Laws on CYRILLA

CYRILLA is an open database of digital rights law from around the world. We document legislation, cases and analyses that concern various digital rights issues, and have tailored the database to support research and advocacy efforts. To compliment the launch of our new homepage, we’ve put together a video demonstrating the ways in which you can find the digital rights legal resources you’re looking for.

You can view the full video here:

CYRILLA’s versatile search functionality allows you to effectively gather the data you need. You can now easily enter what you’re looking for in the bar on our homepage:

Or, once you enter the database, you can search through our resources by type, country, or keyword, located on the right panel. These filters can also be combined for narrower searches.

At a glance, you can view a statute’s metadata, such as the date it was enacted or proposed. Legislation can be viewed in its original language, or translated version where available. You will also find cases that cited this particular statute in the side panel.

Our catalogue of digital rights cases is extensive, and you can also access handy case summaries, as well as links to related online content.

CYRILLA’s search tool also facilitates the comparison of precedent-setting cases in different jurisdictions. For example, here you can view cases from across the world which challenged the constitutional validity of national surveillance laws and practices.

These are some of the tools on CYRILLA that you can use to support your research and advocacy work. We aim to introduce additional features in the coming months. To keep up with the latest database features and digital rights legal developments, follow us on Twitter.

New CYRILLA Homepage!

CYRILLA is an open database of digital rights law from around the world. We document legislation, cases and analyses that concern various digital rights issues, and have tailored the database to support research and advocacy efforts. Part of this effort includes our new homepage, which we’re excited to share with you!

From the new homepage, you can begin your search right away. Once in the database, you can use a combination of our handy filters to refine your search and find exactly what you’re looking for. Resources can be filtered by type, country, and keyword.

As you scroll, you’ll come across charts highlighting interesting trends identified in our data, including popular keywords and frequently cited legislation. We’re working on introducing data visualization capabilities to the platform, and these give you a glimpse into the kinds of infographics you can produce once they are launched.

For the more CYRILLA updates like this, follow us on Twitter.

Monthly Roundup: April 2020

REUTERS/Antonio Parrinello

With restrictions on movements and gatherings, much of the world has been using technology to work and learn (and watch Netflix) from home during the last month. Governments have also been deploying digital tools in their responses to the COVID-19 outbreak, and for this monthly roundup, we take a look at some of those that concern disinformation and surveillance.

Singapore

While Singapore was initially praised for its rapid and effective response to the pandemic, in recent weeks the country has experienced outbreaks among its neglected migrant communities who live in crowded, poor conditions. Part of the government’s response has been its notorious misinformation law, the Protection from Online Falsehoods and Manipulation Act. Under the law, officials have requested that Facebook disable access to the page of the States Times Review – which posts anti-government news and commentary to its 54,000 followers. Authorities allege the page contains “false statements” about the government’s response, including that the international community is losing confidence in the country’s public health measures. After seeking legal advice, Facebook eventually complied with the request, but released a statement expressing the company’s concern on the impact the law has on free speech. The government has denounced similar criticism that the Act is a tool to suppress opposition, and is now considering how to remove false communications on encrypted applications, such as WhatsApp, which companies don’t have access to.

South Africa

With no existing law against misinformation, South Africa’s disaster management regulations now prohibit the sharing of coronavirus-related information “with the intention to deceive.” A person who contravenes the regulations will be liable to a fine or imprisonment of up to 6 months. The government has also placed an additional duty on ISPs to remove any identified false content from their platforms. So far, a number of arrests have been made, including a man who posted a video violating and mocking the regulations. You can read more of our coverage and what this means for free expression in the country here.

India

The Home Ministry of India has issued an order making it mandatory for all public and private workers to download the government’s contract-tracing app. The Aarogya Setu app uses location data to map the movements of those infected with the coronavirus, and sends alerts to those who come in contact with them. The responsibility is on employers to ensure that their workforce complies with the order, but experts are skeptical about the legal ramifications if an employee refuses to download it. An additional concern is the impact this has on citizens’ privacy, which was recognized as a constitutional right in the famous ‘Aadhaar’ judgement, and thus can only be limited in accordance with prescribed procedures which have not yet been followed.

South Korea

South Korea’s tracing program is extensive and meticulous. When a person tests positive for the virus, authorities reconstruct an hour-by-hour timeline of the person’s whereabouts in the days leading up to the diagnosis. This information is derived from interviews, cellphone location data, credit card transaction history and CCTV footage that reports suggest private business owners are required to supply. This data is also shared via public alerts to people in affected districts, and the alerts archived on local websites, without anonymizing the age, gender and ethnicity of the patients. This is seemingly inconsistent with South Korea’s strict personal data protection law, the Personal Information Protection Act, which also includes the right to be forgotten, and applies to both the private and public sector. But the government has exercised an exception in the statute, which permits government agencies to collect and use data without consent if it’s in the public interest to do so. The privacy concerns of the tracing program are manifest, and some individuals have been subject to harassment. Notwithstanding, South Korea’s responses to the pandemic, including its tracing program, have been heralded both locally and globally.

In light of many countries adopting stricter measures during this time, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has encouraged governments to center the dignity and respect of people in their responses. We hope they heed this call, and ensure that both access to information and privacy are protected going forward.

Call for Proposals: CYRILLA Applied Research and Advocacy Grants

Contact

Grant Baker, CYRILLA Project Director (grant[at]smex.org)

Background 

The CYRILLA Collaborative will be awarding 5 grants of $5,000 to organizations and individuals to pilot small-scale applied research, journalistic, or advocacy initiatives committed to expanding the knowledge on digital rights legislation and case law. The CYRILLA Collaborative is particularly interested in applications from individuals or organizations based in the Middle East and North Africa, Latin America, South and Southeast Asia, and Sub-Saharan Africa. Small grant–supported initiatives will last between 3-4 months and are expected to respond to a regional digital rights–related research or advocacy challenge.

About CYRILLA

The CYRILLA Collaborative is a global initiative that seeks to map and analyze the evolution and impacts of legal frameworks in digital environments by aggregating, organizing, and visualizing distributed legal data through open research methodologies, data models, taxonomies, and databases. The Collaborative’s keystone initiative, CYRILLA.org, is an open online database that facilitates and accelerates the sharing and comparison of legal information on digital rights. At its core, CYRILLA organizes and provides access to legislation and case law that affects human rights in digital environments; enabling researchers, activists, lawyers, and civil society representatives to assess legal trends and their impacts in digitally networked spaces. 

The CYRILLA Collaborative is comprised of the Association for Progressive Communications (APC), Center for Intellectual Property and Information Technology at Strathmore Law School (CIPIT), Columbia University’s Global Freedom of Expression Initiative, Derechos Digitales, HURIDOCS, and SMEX.

Topics   

The CYRILLA Collaborative is interested in proposals that examine how legal frameworks have evolved to protect, regulate, and repress digital rights. Projects can take the form of research, advocacy, or the development of new data–driven technical outputs that utilize existing data on one of our three databases: cyrilla.org, ICT Policy Africa, or RedLatam i.e visualizations for journalistic reporting or an advocacy campaign. We are especially interested in projects that tackle the disproportionate impacts of policies affecting digital rights on at-risk communities. Potential projects ideas include, but are not limited to: 

  • Examining how the courts have applied recent or outdated legislation to impact digital rights (i.e freedom of expression, privacy etc.)
  • Delineating opaque legislative or judicial processes related to digital rights 
  • Analyzing how legislation has impacted the introduction of digital identity programs, or how the introduction of digital identity programs has led to new legislation
  • Studying the digital rights implications of competition laws or other laws that have facilitated market concentration in the tech or telecommunications sector
  • Comparing digital rights case law across regional or national jurisdictions

Given the current COVID-19 pandemic, we understand that projects which document the nature and impact of domestic coronavirus-related regulations on digital rights are topical and necessary. While we encourage you to apply if you have a strong idea around a Coronavirus-related topic, a project will not be viewed more favorably solely because it is linked to COVID-19. 

Application Instructions

Please submit a 3-4 page proposal and a line item budget via email by May 28, 2020. Proposals must be sent to grant[at]smex.org, nerissa[at]smex.org, and collaborative[at]cyrilla.org with the subject line “CYRILLA Research Proposal.” 

The proposal should include:  

Background: Describe the problem that your project seeks to address, explaining why the issue is relevant right now. Briefly detail any previous research or advocacy efforts that have addressed this topic. 

Organizational Description: Outline your organization’s mission and list any relevant projects that you have worked on in the past two years. Organizations should also provide short biographies of the staff members who would be working on the project. If you are applying as an individual, please write a short biography and attach a CV. 

Outcome & Project Narrative: State the project’s desired outcome and explain how the project will accomplish that goal. Please mention any challenges or risks that you anticipate this project might face. 

Project Timeline: Produce a detailed timeline, with dates, listing the project’s expected outputs and when they are expected to be completed.

SMEX will serve as the initial point of contact for shortlisted candidates. Once candidates have been selected, they may communicate directly with one of the other CYRILLA partners, depending on where the project is located. 

Selection Criteria 

The six organizations that comprise CYRILLA Collaborative will convene to evaluate proposals. Strong proposals will: 

  • Clearly articulate the relevance of the project
  • List clear outcomes within the three-month timeframe
  • Directly interact with legislation and case law concerning digital rights
  • Demonstrate how the project will help build growing interest in digital rights law 

The CYRILLA Collaborative will attempt to maintain regional balance (i.e one project from the Middle East and North Africa, one from Latin America etc.) in awarding the grants. Projects that make use of the CYRILLA research methodology or databases will be viewed favorably.

A Look at South Africa’s Covid-19 Disinformation Regulations

AP Photo/Denis Farrell

Countries across the world have been implementing drastic measures to curb the spread of the novel coronavirus, and South Africa has followed suit by criminalizing disinformation related to COVID-19 during the “national state of disaster” – declared on March 15, 2020. The accompanying Disaster Management Regulations impose fines or imprisonment of up to 6 months for people who share false information on social media, and responsibility for removal thereof has been assigned to ISPs by a Ministerial directive.

In trying to find examples of infringing content, I need look no further than my own phone. According to the messages I’ve received during the last month, no less than six countries have already developed a COVID-19 vaccine, which we wouldn’t even need anyway if we just bathed in bleach while holding our breaths for 20 seconds. Also, this is all somehow the fault of 5G internet. I receive these messages from people across age groups, cities, and education levels, and on every platform I use. A couple are from my mom. And two weeks after we went on lockdown began, they remain unrelenting.

Even pre-pandemic, the spread of disinformation on South Africa’s social networks was a familiar problem. Fabricated statistics showing disproportionate attacks against white farmers circulated for a number of years, fuelling the “white genocide” myth that made international headlines. Significantly more distressing are the false narratives shared about immigrants in the country which sustain the rampant xenophobia that time and again results in loss of life.  But South Africa has resisted the growing trend in the region and globally of enacting legislation against “fake news” – with good reason.

While countries like Singapore have introduced laws against disinformation, these laws are often arbitrarily enforced by officials against dissidents. However, South Africa’s robust protection of freedom of expression inhibits the government from going down this dark path. The Constitutional Court has described freedom of expression as a “guarantor of democracy” and our jurisprudence tends to reflect this. The South African Constitution entrenches the right to freedom of expression, including the “freedom to receive or impart information or ideas.” The right, however, expressly does not extend to propaganda for war, incitement of imminent violence, and hate speech. Accordingly, false information which does not fall under the exceptions is presumably a constitutionally-protected form of expression.

Although the Disaster Management Act, 2002 grants the government broader powers, any regulations enacted must nevertheless be consistent with the Constitution and, in particular, the Bill of Rights, and are reviewable by the courts in this regard. So is this limitation of freedom of expression imposed by the criminalization of disinformation constitutionally permissible? Section 36 of the Constitution permits the limitation of rights when circumstances demand, provided such limitation is “reasonable and justifiable”, taking into account factors such as the nature and extent of the limitation, and the purpose for its imposition.

The Disaster Management Regulations state:

“Any person who publishes any statement, through any medium, including social media, with the intention to deceive any person about –

  1. COVID-19;
  2. COVID-19 infection status of any person;
  3. Any measure taken by the Government to address COVID-19,

commits an offence and is liable on conviction to a fine or imprisonment for a period not exceeding 6 months, or both such fine and imprisonment.”

The Minister of Communications and Digital Technologies’s directive takes the limitation a step further, and has imposed a duty on ISPs to entirely remove such content from their platforms once it has been identified. She has not yet communicated how enforcement of this would interact with the otherwise comprehensive limitations on ISP liability in the Electronic Communications and Transactions Act, 2002

Even so, the government has confined the scope of the offence to categories of false information relating to the pandemic, and not false information generally. This, at least, alleviates concerns that it will weaponize the criminalization of disinformation towards undemocratic ends, such as the stifling of criticism from the public, press and political opposition. Additionally, the regulations are temporary – the national state of disaster lapses after three months, if a relevant Minister fails to terminate it earlier.

A person will also only be liable if they had the “intention to deceive.” The State will have to show that the individual was aware the information was false, and shared the information for the purposes of misleading others accordingly. Therefore, good faith data modeling and projections, and our aunts on family WhatsApp groups, are unlikely to contravene the regulations.

But just because there’s no legal obligation to ensure the credibility of the information we share, doesn’t mean we don’t have a social one. The categories of false information enumerated in the regulations have the potential to result in physical harm, incite fear or discrimination, and derail public health efforts. AfricaCheck, an independent fact-checking organization, has been debunking coronavirus-related myths that have been circulating on social media across the continent – ranging from eating garlic and drinking baking soda as cures, to state-mandated murder of positive patients in China. In a country that ranks social media almost as reliable as traditional news outlets, coupled with an overburdened public healthcare system and a history of disease-related trauma and stigma, the impact of these messages on the general public cannot be underestimated. Since the government has been trying to widely disseminate scientifically-accurate information, in various languages, most notably via an AI-powered WhatsApp service that’s been heralded by the World Health Organization, we should verify the information we receive from other sources before sharing it with our social circles. 

There have already been numerous arrests for contravening the regulations, including a man who warned people to stay away from his ex-girlfriend, who he alleged had tested positive for the virus, and another who posted a video of himself violating and mocking the Disaster Management Regulations. Activists and academics, however, are wary of how imposing and enforcing this limitation may impact the importance of the right to freedom of expression in South Africa in the future. But until the regulations are challenged before a court, we’re all better off thinking twice before hitting the share button.

Job Opportunity: External Project Evaluator

Terms of Reference: 

External Project Evaluator, CYRILLA

Timeline:

March to April 2019

Contact:

Grant Baker, CYRILLA Project Director (collaborative@cyrilla.org)

SMEX is seeking a consultant to perform an external midterm evaluation for a two-year program. The consultant will have experience with monitoring and evaluation, and program assessment for digital rights and internet freedom-related projects, or, alternatively, projects related to technology and human rights with strong legislative/policy analysis, research, and advocacy campaigning components.

About the Project:

The CYRILLA Collaborative is a global initiative that seeks to map and analyze the evolution and impacts of legal frameworks in digital environments by aggregating, organizing, and visualizing distributed legal data through open research methodologies, data models, taxonomies, and databases. The Collaborative’s keystone initiative is CYRILLA.org, an open, federated online database that facilitates and accelerates the sharing, comparison, visualization, and interoperability of legal information on digital rights. 

The Collaborative is comprised of the Association for Progressive Communications, the Center for Intellectual Property and Information Technology (CIPIT) at Strathmore Law School, Columbia University Global Freedom of Expression, Derechos Digitales, HURIDOCS, and SMEX. 

Evaluation Objectives:

The chief aim of the external midterm evaluation is to perform a comprehensive analysis of results and learning emerging from CYRILLA, relative to its stated objectives and activities, in order to assess overall impact, effectiveness of approach, and progress of the project towards desired outcomes during its first year. This should, in turn, yield a detailed set of findings and recommendations that will inform project design, operations, and priorities for its second year.

Approach:

The midterm external evaluation will examine the extent to which CYRILLA has progressed with its objectives and activities, how activities have translated into the community-level outcomes that are central to its success and sustainability, and any operational challenges that have impacted this progress. This will include drawing on key sources of information: project reporting, monitoring evaluation framework and performance monitoring plan (PMP), internal documentation of activities and their outputs, and interviews with key stakeholders (both project partners and beneficiaries).

About SMEX:

Founded in 2008, SMEX is a registered Lebanese NGO that develops media and information literacy, expands knowledge of internet policy and governance, and advocates for human rights online throughout the Middle East and North Africa (MENA) via research, training, and advocacy. Since August 2018, SMEX has served as the incubator for the CYRILLA Collaborative, a consortium-based initiative to expand and amplify responsive, evidence-based internet freedom legal and policy advocacy in the Global South, through coordinated approaches to systematizing digital rights law and case documentation. 

Application Materials:

  • Cover letter
  • CV
  • Two references on previous consulting projects

Email materials to collaborative@cyrilla.org and grant@smex.org with the subject line: “CYRILLA Evaluator Application” by March 24th, 2020. Salary commensurate with experience.

Glenn Greenwald and the Fight for Press Freedom in Brazil

The constitutional protections for press freedom are being challenged in Brazil. Last month, federal prosecutors in Brazil filed charges against US journalist, Glenn Greenwald, for cybercrimes. Greenwald, the journalist who published Edward Snowden’s intelligence leaks, and one of the founders of news site, The Intercept, has a history of exposing government corruption and criticizing President Jair Bolsonaro’s administration. Last year, Greenwald released private chats between top government officials, which revealed possible corruption by Justice Minister, Sergio Moro. The Intercept asserted that the exchanges were obtained from an “anonymous source” while implicated politicians, including Moro and Bolsonaro, alleged that Greenwald had encouraged hackers to obtain the information. 

Brazil has robust press freedom laws. The Constitution includes special protection for journalists from criminal liability for publishing information from illegally obtained sources if it’s within the public interest to do so, and the journalists have not participated in the theft itself. In an extraordinary move, the Supreme Court barred the federal government from investigating Greenwald for receiving the intercepted messages exchanged between top officials. “The right corollary of freedom of expression is the right to obtain, produce and disseminate facts and news by any means. The constitutional secrecy of the journalistic source makes it impossible for the State to use coercive measures to constrain professional performance and to investigate the form of reception and transmission of what is brought to public knowledge,” the ruling stated.

Last December, Brazil’s federal police concluded their investigation into the hacking. The police claimed that Greenwald was not the subject of the investigation, and therefore they were not circumventing the Supreme Court decisions, but his name emerged in communications with the hackers. Police established that “it is not possible to identify moral or material participation by the journalist [Greenwald].” In the transcribed audio files, Greenwald tells the hacker to evade criminal liability for participating in the hack, he would have to prove he only spoke to the source after the criminal action was completed. Authorities noted that Greenwald exercised caution when interacting with the hackers and acknowledge his legal duties as a journalist.

Federal prosecutors charged Greenwald with criminal association and illegal interception of communications, alleging that some audio tapes demonstrate he “helped, encouraged and guided” the hackers. However, a federal judge declined to proceed with the charges because of the previous injunction issued by the Supreme Court against investigations into him. But Greenwald feels that refusing to move forward on procedural grounds is not the victory for press freedom it appears to be: “Anything less would leave open the possibility of further erosion of the fundamental freedom of the press.” The judge ultimately noted that if the injunction was overturned, he would be open to formally charging Greenwald.

Greenwald intends on approaching the Supreme Court for a more conclusive ruling on press freedom. As this unfolds, press freedom and the rule of law in Brazil, as well as the strength of the country’s institutions, will be tested. We hope that the judiciary once again defends the rights of journalists who are acting in the public interest, and does not foster an environment of fear, corruption and secrecy.

The court documents referred to above will be available on CYRILLA in the coming months.