The Computer Misuse (Amendment) Bill 2022 cures no mischief

 

By Michael Aboneka Jr

Hon. Muhammad Nsereko sought leave of Parliament to table an amendment bill to the Computer Misuse Act in February 2022 and has now tabled the bill on the floor of Parliament. In my view, there is nothing new that the new law is seeking to cure and I am waiting to read the Regulatory impact assessment and the justifications thereof beyond public debates.  From the proposed long title of the bill, objectives and the clause on defects in existing law, it is not clear and specific enough of what mischief the bill intends to cure. The amendment seeks to largely protect the right to privacy, prohibition of unlawful access to data and spreading of false information which are already protected by existing legal frameworks such as the Constitution, Children Act, the Human Rights Enforcement Act 2019, Penal Code Act, Data protection and privacy Act 2019 among others. All these provide layers of protection that the bill seeks to do and by large, the amendment will only duplicate the provisions of laws above.

  Unauthorised access to information

The bill seeks to make it an offence for unauthorized access to information. The proposed amendment is typically talking about data privacy and creating an offence. This is already covered under the Data Protection and Privacy Act 2019 which prohibits the same. Further, there is no proviso for recording and sharing information that that is for the good cause such as recording committing of a crime for instance traffic offences, child abuse, theft, robbery among others. Does the Bill suggest that you must seek the consent of the crime perpetrator before you share the information? 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 in relation to the right to privacy.

 

Unauthorised sharing of information about children

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 Bill 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.

Unsolicited information

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, marketers etc (who are the major culprits of sending unsolicited information) fall within the meaning of “any person.” 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.

Prohibition of sharing misleading or malicious information and hate speech

The Bill deals with the prohibition of sharing misleading or malicious information and hate speech. The Bill does not define clearly what amounts to misleading and malicious information which susceptible to be abused by whoever will be preferring charges. Further, the bill introduces hate speech and indicates scenarios when this can happen. This is an attempt to re-enact what the Court has already determined unconstitutional. Secondly, section 25 of the current Act covers aspects concerning offensive communication. 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.

Restriction on holding public office

The bill proposes a ban on holding of public office for a period of ten years and dismissal as a penalty for offending the Act. What is the mischief here? Who is being targeted? Away from the penalty being harsh and unreasonable, this is not new as it is already provided for under the various laws and regulations 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.

Moving forward, we must ensure that there is wide public participation on this process as 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. Parliament should allow as much as possible public participation in form of petitions, consultations even if the result is to abandon the amendment.  

There is need for a comprehensive revision of the current Computer Misuse Act  as some provisions (not captured by the Bill) are ambiguous such as section 25 which does not spell out clearly the ingredients of the offence of offensive communication. 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 and further.  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.