Mauritius, the small African island nation that – according to observers – has one of Africa’s best democratic records,1Economist Intelligence Unit’s Democracy Index 2019 (2020), Democracy Index 2019: Mauritius a “Full Democracy” and ranks 1st in Africa, 18th worldwide, Intercontinental Trust has until recently steered clear of measures that seek to regulate the internet and online speech. However, a 2021 proposal suggests an unconventional regulatory approach compelling all internet traffic to the country to be rerouted via a proxy server to be decrypted and archived. This proposal has led to warnings from a multitude of global digital rights groups of incipient risks to freedom of expression and privacy in Mauritius.
Mauritius’ regulatory framework:
In 2021, the Mauritian Government proposed further amendments to the ICT Act in a consultation paper. Whilst the paper does not provide clear legal provisions, it does identify the class of legal instruments likely to be introduced in Mauritius. It is currently unclear when (or if) the amendments might be added to the ICT Act. In short, the amended ICT Act would seek to:
Relevant national bodies:
Key takeaways for tech platforms:
Tech Against Terrorism’s analysis and commentary
Whilst until recently Mauritius has taken a comparatively lenient approach to online regulation, the 2021 proposed amendments to the ICT Act appear unprecedented in their reach and the concomitant risks of violating several principles of international human rights law. There are potential benefits in placing legal liability on individual users as opposed to tech companies in terms of the impact on freedom of expression online, mainly because stringent liability provisions on platforms could see platforms over-zealously remove content to avoid penalties.
However the measures proposed by the government nonetheless risk a negative effect on the domestic right to privacy and freedom of expression due to their interference with encrypted web traffic and prohibition of ill-defined content categories.
The example of Mauritius raises important questions about smaller nations in the Global South and their ability to engage constructively with larger global tech companies, something which the consultation paper addresses directly as a challenge. Mauritius mentions regulatory approaches in the United Kingdom, France, Germany, India, and Australia3See summaries for each country in our Online Regulation Series Handbook here: as models for Mauritian regulation. Whilst those regulatory approaches all have significant shortcomings, the Mauritian approach appears much more drastic. However, Mauritius justifies the amendments to the ICT Act by criticising perceived big tech platforms’ lack of compliance with Mauritian legal requests and their lack of content moderation capacity in the local creole language. Whilst the shortcomings of tech companies regarding content moderation in the Global South are well documented,4See, for example: Rest of World Staff (November 2021), Why the rest of the world shrugged at the Facebook Papers, Rest of World. the specific reasoning behind these proposals has been questioned by researchers who assess, on the basis of tech company transparency reports, that large platforms do seem to take action on requests from the Mauritian Government.5Msisegwa, Daniel, (May 2021), Mauritius Social Media Regulation Proposal Centres State-led Censorship, CIPESA
Global civil society criticism: risks to privacy and “administrative censorship”
Several civil society groups have warned against the proposed amendments to the ICT Act. In an open letter, a number of global digital rights groups led by AccessNow warned that the amendments would render the law non-compliant with Mauritius’ commitments under human rights law.6AccessNow et al (May 2021), Joint civil society statement in response to the Information & Telecommunications Authority Consultation paper on proposed amendments to the ICT Act for regulating the use and addressing the abuse and misuse of Social Media in Mauritius, AccessNow. This is due to the law’s wide scope in vowing to remove “harmful” content without further defining the term, which according to the group violates the principle enshrined in Article 19 of the International Covenant on Civil and Political Rights (ICCPR) concerning the need for clarity and predictability in assessing legality. The group also warned against instruments seeking to decrypt traffic data (measures the group called “unprecedented” and “distressing”) and which further risk violating Article 17, concerning the right to privacy. The group further warned about the risks to information security associated with violating encryption. For more of Tech Against Terrorism’s research in this area, see our report on “Terrorist Use of End-to-End Encryption: State of Play, Misconceptions, and Mitigation Strategies”.
Lastly, the group cautioned against the risks of “administrative censorship” that could result from the law. The group argued that the authority of the NDEC – an administrative body – to determine the illegality of content illegality, as opposed to a judicial body, could lead to the over-zealous restriction of speech. This is partly because administrative bodies may have more incentive to reach conclusions favourable to the incumbent government than does an independent tribunal. The group highlighted that this is in violation of international norms advanced by the Special Procedures of the UN Human Rights Council and of the Manila Principles for Intermediary Liability.
Likewise, a group of scholars from the Free Speech Project – a joint initiative between online magazine Slate and American University – criticised the measures and explicitly stated their concern about the lack of judicial oversight in the proposed amendments.7FJELD, Jessica, MEETARBHAN, Milan, NAGY, Adam, TEHWARI, Shreya (20 May 2021), Mauritius Is Considering an Unprecedented Attack on Online Freedom, Slate Furthermore, the scholars assessed that the amendments continue the Mauritian Government’s growing habit of encroachment on online freedom of expression and digital rights, which commenced with the amendments made to the ICT Act in 2018 which made the sharing of “obscene” or “indecent” content punishable with up to 10 years in prison.