Legal Commentary On The Proposed Amendments To The Computer Misuse Act

By Michael Aboneka, Esq

1. Introduction

Hon. Muhammad Nsereko has sought leave of Parliament to table an amendment bill to the Computer Misuse Act. The proposed bill seeks to prohibit sharing of information relating to a child without the consent of the parent or guardian. In addition, the bill seeks to enhance the provisions on authorised access to information or data; prohibit the sending or sharing of false, malicious, and unsolicited information as well as provision for the streamlining of other related matters.

This legal commentary is an analysis of the proposed amendments within the spectrum of existing legal and regulatory framework and the freedom of expression, a freedom protected by the Constitution of the Republic of Uganda.

2. What is the Mischief?

From the proposed long title of the bill, it is not clear and specific enough of what mischief it is intended to cure. The amendment seeks to prohibit sharing of information relating to a child without the consent of the parent or guardian, enhance the provisions on authorised access to information or data and prohibit the sending or sharing of false, malicious and unsolicited information as well as provision for the streamlining of other related matters. These are not new areas for legislation. We have in place enough laws on protection of privacy and prohibition of unlawful access to data and spreading of false information.

3. Analysis of the proposed Amendment Bill.
4. Unauthorised access to information

Clause 2 of the bill seeks to make an offence. The clause does not define which information about or relating to someone can be shared and not and how it is a problem. This proposal is restrictive and counterproductive to citizen journalism. There has been a steady growth in the increase and importance of citizen journalism where information is shared of certain crimes and offences being committed by other citizens or even those in power. The campaign to take photos of errant and impatient drivers on the roads has created awareness as well as possible evidence which has in most cases supported police in apprehending the law breakers. Further, police has been able to apprehend suspects involved in child abuse and battering, theft, robbery among others! If this clause is passed as is, it will kill citizen’s efforts in sharing useful information in a bid to fight crime. Further, this can be cured under the right to privacy where individuals who feel that their right to privacy has been violated can take a civil action against the perpetrators. It also remains unclear whether this clause will also affect the operation of the Police closed circuit cameras (CCTV) within the country since we are still grappling with their legality in as far as a legal regulatory framework is concerned and  in relation to the right to privacy.

1. Unauthorised sharing of information about children

Clause 3 of the bill deals with the unauthorised sharing of information about children. The Children’s Act section 3 provides for the welfare principle in which any decision regarding a child is made with their best interest as the guiding principle. However, the restriction that concerns the authorisation or consent of the parent/ guardian is very restrictive since there are situations in which sharing information about a child might be in their best interest. a simple example relates to the battering and disappearance of children where their photos and videos have been shared in a bid to rescue them. The proposal seems to suggest that it will be an offence for trying to save a child and this may be in contraction with the welfare principle in determining that information may be shared about a child and in what circumstances. Further, the right to privacy can be reinforced, protected, and adjudicated under the Human Rights Enforcement Act, 2019, data protection and privacy Act among others if there is indeed breach of privacy.

1. Unsolicited information

Clause 4 of the bill deals with unsolicited information. There are several considerations that must be made surrounding unsolicited information. Firstly, there needs to be a clearly defined provision of what amounts to unsolicited information. The bill in its current form is ambiguous and doesn’t provide a specific definition of what unsolicited information is. The other consideration is that the bill is silent on whether companies, application, marketers etc (who are the major culprits of sending unsolicited information) fall within the meaning of “any person.” Further, if that is the case, the UGX 14 million fine is a less punishment for the offending companies. Where will the criminal liability for companies who offend this clause lie?  Uganda Communication Commission has in place regulations that bar unsolicited messages/ information and an individual can still seek remedies both under criminal and civil law and therefore the clause does not propose something new! We should rather strengthen the regulators to do their work and amend the regulations to have more deterrent sanctions/punishments.

1. Prohibition of sharing misleading or malicious information

Clause 5 deals with the prohibition of sharing misleading or malicious information. The Bill does not define clearly what amounts to misleading and malicious information which susceptible to be abused by whoever will be preferring charges. A good law should be simple to understand and easy to implement. Be that as it may, the Penal Code Act already deals with offences relating to false news and like such. Further, one can seek remedy under tort and does not necessarily need this amendment.

1. Restriction on holding public office

Clause 6 relates to the penalties that accrue to a person that is convicted under this law. The penalty that a convict under this law may not have or hold public office for a period of ten years is reasonable as it is a strong deterrence measure. However, the penalty relating to the dismissal or the vacating of public office by a leader or a public officer if convicted is already provided for under the various laws and regulation such as the public standing orders, Local Government Act, Parliamentary Elections Act, among others. The attempt to create a special legislation just to emphasise the provisions already provided for by other laws is bad legislative drafting. The motive for this clause seems sinister and targeting. A good law is one which balances the interests of the community and an individual, it should not be seen as a personal Vedetta escapade/campaign/project.

4. Recommendations
5. Public Interest and public participation

A good law should be in the interest of the people and should not be discriminatory or suppressive against any group, tribe, religion, sex or any other grouping recognised in the country. It should also be reasonable and enforceable, lest it is rendered redundant. The law should be made known to those that are to be ruled or governed by it. Based on these characteristics, the proposed law is one which must be refined to meet the threshold stated above. The cornerstone for democracy is public participation. The movers of the motion should allow as much as possible public participation in form of petitions, protest notes, consultations, and legal commentaries such as this one even if the result is to abandon the amendment.

1. Comprehensive revision of the current Computer Misuse Act

There is a considerable amount of ambiguity and subjective drafting of the Computer Mis Use Act. Certain provisions of the existing law (such as section 25 of the Computer Misuse Act does not spell out clearly the ingredients of the offence of offensive communication) and tend to re-enact what Courts have already declared unconstitutional. Let us do a comprehensive and honest review of the Act to bring it in conformity with the Constitution to guard and promote the freedom of expression.

1. Strengthen, review, and implement existing laws

It is important to note that there are several laws that are related or govern the issues and address the mischief that the bill seems to propose. Some of these laws include the Constitution of Uganda, 1995 the Children’s Act, the Data Protection and Privacy Act, 2019 the Data Protection and Privacy Regulations, the Human Rights Enforcement Act, the Regulation of Interception of Communications Act and the Computer Misuse Act and common law. We should focus our energies in implementing the laws to the latter, reviewing/repealing laws that do not confirm to the human rights standards to bring them in conformity with the constitution to protect, promote the rights and freedoms.