Draft Bill Violates Rights to Access to Information, Freedom of Expression
(New York) - The Angolan government should withdraw the bill on information and communication technology crimes currently before parliament, Human Rights Watch said today. The proposed legislation would undercut both freedom of expression and information, and pose a severe threat to independent media, whistleblowers, and investigative journalism.
The bill would also give security forces a blank check to search and confiscate data without due oversight and would create harsher penalties for crimes that are already defined in previous legislation if they are committed through electronic information technology, Human Rights Watch said.
"This bill claims to be in line with best international practices, but it in fact fails to establish clear safeguards to protect the public's right to know and right to speak," said Daniel Bekele, Africa director at Human Rights Watch. "It would extend and deepen the existing restrictions in Angola's media environment to the internet, where many Angolans have turned for open debate on matters the government wants to restrict."
The Angolan parliament, dominated by the ruling Popular Liberation Movement of Angola (MPLA), passed the draft information technology crime bill law on March 31, 2011, without allowing for wider public debate. The bill was approved as part of a package of laws regulating information technology and data protection. Internal discussions have continued in parliamentary commissions, which are equally dominated by the ruling party.
In April, a group of journalists and civic activists submitted their main concerns about the bill in writing to parliament. In response, the government, in a meeting with the Angolan Journalists' Union on May 9 that was not open to the public, presented some minor amendments. The response failed to address a number of the major concerns. Human Rights Watch is concerned that parliament may submit the law to the president for his signature next week without genuinely open and broad public debate.
The use of internet and social media by journalists, civic and human rights activists, and opposition parties has become more and more important in Angola, as a means of circumventing the longstanding restrictions on traditional media. In a speech to the ruling party on April 14, President Eduardo dos Santos claimed that the internet was being used to organize unauthorized demonstrations to "insult, denigrate, provoke uproar and confusion." This speech has fuelled concerns that the bill is actually aimed not at internet crime but at clamping down on political speech and organizing through the electronic media.
The bill is also part of a broader pattern of restrictions on fundamental freedoms. In December 2010, Human Rights Watch expressed concern at the revised state security crime law, which, among other provisions, criminalizes "insulting" the president. In March, Human Rights Watch documented a ruling party intimidation campaign to discourage people from joining an anti-government demonstration that had been called via the internet.
"This bill, slipping through without proper public debate, could hamper the fundamental freedoms enshrined in Angola's 2010 constitution," Bekele said. "This does not serve the interests of a government seeking international respectability, particularly in view of upcoming 2012 elections."
Further details on specific articles of the bill, and the human rights implications, are in the background note below.
Among the information and communication technology crime bill's most worrying provisions are:
Undermining Independent Reporting in the Public Interest
Under the crime of "unlawful recordings, pictures and video" (article 17), any person could be fined and imprisoned for electronically disseminating pictures, video, or recordings of a person's public speech without the subject's consent, even if the material is produced lawfully and without any intent to cause harm. This could deter journalists from posting videos of public demonstrations, or police brutality, even if recorded in a public place. While people have a right to the protection of their privacy, invasion of privacy should not be subject to any criminal penalty except in the most egregious circumstances, and never in absence of a criminal intent.
The bill also criminalizes good-faith whistle blowing under the crime of "espionage" (article 25), which imposes a penalty of 8 to 12 years in prison for anyone using an electronic information system to seek access to classified information "in order to reveal such information or to help others to do so," regardless of the actual threat to national security. It provides the same penalty for accessing information that is not classified but that "could endanger the security of the state." Such standards could easily be used to deter all investigative reporting, since a reporter will have to guess whether information could be deemed to endanger state security in some undefined way and self-censor, or may even be made liable at a later date for risks the reporter could not possibly be in a position to foresee, Human Rights Watch said.
In addition, penalties are increased for activities carried out in cooperation not only with foreign governments, but also with foreign "organizations" or "associations." This could be interpreted as including bona fide news organizations, human rights organizations, or even the United Nations.
Imposing Punishment Despite Lack of Criminal Intent
The bill is also littered with crimes that omit criminal intent as a necessary element. Proving intent to commit a crime is central to all but a very few crimes in legal systems around the world.
For example, if this bill becomes law, a person may be punished for recording and publishing lawfully produced pictures or videos without consent (article 17) even in circumstances where the publisher may not know that consent is lacking.
Similarly, under article 20, the bill punishes "direct and public" incitement to a crime using an information system, without specifying as necessary elements both intent to incite and an actual causal relation to the commission of a crime. Article 20 also punishes "praise" of a criminal offender that creates "a risk" that a similar offense will be committed, also without specifying intent to incite a similar crime or any tangible measure of such "risk."
Overall, these provisions could enable the Angolan authorities to punish public speakers simply for expressing their opinions without having to show any criminal intent on the part of the speaker, or any tangible causal relation to actual damage to public safety or national security, Human Rights Watch said.
Increased Penalties for Crimes Defined in Previous Legislation
The bill references a number of offenses from Angola's criminal code - the 2002 state secret law, the 2006 press law, and the 2010 state security crime law. However, it increases penalties for these offenses substantially. In this fashion, the bill appears designed to make electronic communications a more harshly policed sphere than any other means of expression. Human Rights Watch opposes increasing criminal sanctions for such offenses simply because of the medium employed.
For example, under "defamation, libel and slander" (article 16), the bill treats defamation as a criminal offense, which is already the case under Angola's 2006 Press Law and Criminal Code, but increases the penalties by a third of the upper and lower limits defined in Angola's Criminal Code. Human Rights Watch opposes criminal liability for defamation as an undue restriction of freedom of expression.
Blank Check for Search and Seizure by Security Forces Without Prior Oversight
Article 75 of the bill also confers wide-ranging powers to unspecified "organs of defense and security" to search and seize data without prior authorization of the courts in the name of national security. This presents an open door to intrusive and abusive searches that can compromise the rights of individuals and severely inhibit the rights of free expression and access to information.