August 30 2013
If two consenting adults send each other naked photos of themselves, should they be charged under criminal law?
What is the definition of child pornography? How do you defend yourself against such a charge?
What kind of language would “lower the reputation” or hurt your feelings?
And what does it mean to deny genocide or “grossly minimise” crimes against humanity?
These were some of the questions discussed at a cybercrime conference in Swaziland, a small land-locked kingdom in southern Africa.
The Southern African Development Community (SADC), a regional body, has developed a model law on “computer crime and cybercrime” and Swaziland is now working to “transpose” that model law into local legislation.
About 40 participants — mostly from government departments, internet service providers, NGOs, and telecommunications company MTN — gathered for a two-day workshop on August 28 and 29 to try to iron-out any concerns with the proposed law.
The workshop was hosted by the ministry of information communication and technology, in partnership with the ministry of justice and constitutional affairs, the International Telecommunications Union (ITU), and the European Union.
The audience seemed divided over the question of “adult pornography” — how to define it, what penalties should apply if it becomes an offence, and how far the state can go in regulating the behaviour of two consenting adults?
Provision 12 of the draft legislation is on child pornography. Clause 2 (b) under this provision says a charge of child pornography can be defended if “the conduct that is alleged to constitute an offence was for a genuine artistic, educational, legal, medical, scientific or public benefit, including Swazi cultural events”.
The “Swazi cultural events” defence against a charge of child pornography is in the proposed law because of the annual Reed Dance, or Umhlanga in the local tongue siSwati. It is a traditional Swazi ceremony that takes place each year in August or September. Thousands of unmarried and childless women and girls (many under the age of 18) travel from their villages to take part in the seven-day event, dancing in front of the king and the queen-mother, as well as a large crowd of locals and tourists. The “maidens”, as they are called, wear short traditional dresses and no top, so the women’s and girls’ breasts are visible to anyone attending the public event.
The potential concern acknowledged by the draft law is that if someone takes a photo of the semi-naked maidens who are under the age of 18, that person cannot be charged on possession of child pornography.
Further debate at the workshop centred on racial insults over the internet. Provision 16 of the draft “computer and cybercrime” legislation, under the heading Racist and Xenophobic Motivated Insult, says:
A person who intentionally and without lawful excuse or justification or in excess of a lawful excuse or justification publicly, through a computer system, uses language that tends to lower the reputation or feelings of:
a) persons for the reason that they belong to a group distinguishing by race, colour, descent or national or ethnic origin, as well as religion, if used as a pretext for any of these factors; or
b) a group of persons which is distinguished by any of these characteristics;
commits an offence and is liable, on conviction to a fine not exceeding [amount yet to be determined] or to imprisonment for a period not exceeding [period yet to be determined] or to both.
Participants noted that the line, “tends to lower the reputation or feelings,” is a broad phrase that needs refining and clarification.
There was also a discussion on the difference between saying possibly racist comments in person as compared to writing them on the internet. The consultants from the International Telecommunications Union, who are helping to facilitate the session and draft the Swaziland legislation, said they would look into these concerns.
Provision 17 of the cybercrime Bill says that a person who uses a “computer system” and “denies, grossly minimises approves or justifies acts constituting genocide or crimes against humanity … is liable, on conviction, to a fine not exceeding [amount to be determined] or to imprisonment for a period not exceeding [period to be determined] or to both”.
There was not a detailed discussion of this provision.
The cybercrime workshop, and the entire exercise of importing SADC model laws into local Swaziland legislation, forms part of a regional program known as HIPSSA.
HIPSSA is also referred to as: Support for harmonisation of the ICT policies in Sub-Saharan Africa. According to HIPSSA and ITU consultant Ida Jallow, the program is funded 90 percent by European Union, and 10 percent by the International Telecommunications Union (ITU). ITU are the “implementing partner” of the program.
Two other pieces of SADC model law — “data protection” and “e-transactions” — are also being transposed into Swaziland legislation.
Click on the below links to read more about Swaziland’s proposed cyber-security legislation:
For comments or queries, please contact:
MISA-Swaziland National Director