Technology has changed the way in which people engage in public discourse. Facebook is no exception. It provides a global network for exchanging opinions without reliance on mass-media intermediaries.
Writing on Facebook walls has legal consequences. The terms and conditions of Facebook provide at paragraphs 3.7 that: “You will not post content that: is hate speech, threatening… incites violence…”, and at 5.1: “You will not post content or take any action on Facebook that (…) otherwise violates the law.”
In Mauritius, section 206 of the Criminal Code creates the offence of “outrage against public and religious morality” through the use of words, exclamations or threats used in a public place or any writing sold or distributed or exhibited in any public place. My reading is that there will be considerable difficulty to bring a Facebook wall post or like under the definition of outrage. When interpreting penal laws, care should be taken not to bring people under the ambit of the law if they do not so fall under the plain ordinary meaning thereof.
Section 282 of the Criminal Code criminalises “Stirring up racial hatred”. Any person who, with intent to stir up hatred against any section of the public, publishes any writing which is threatening, abusive or insulting or broadcasts any such matter, shall commit an offence and shall be liable to a fine not exceeding Rs 25,000 and to prison for a maximum of 10 years. This provision can be used to prosecute Facebook posts and likes.
The other provision of law which is of interest is section 46 of the Information and Communications Act (ICTA). It provides, inter alia, that any person who uses an ICT service for transmitting a message which is grossly offensive, or of an indecent, obscene or menacing character, or for the purpose of causing annoyance, inconvenience or needless anxiety to any person or which is likely to endanger State defense, public safety or public order, commits an offence and is liable to a maximum fine of Rs 1 million and to maximum imprisonment of 5 years. This provision is widely used to prosecute those using a mobile phone to send menacing messages or to cause annoyance.
The Computer Misuse and Cybercrime Act 2003 criminalises, inter alia, the offence of unauthorised access to data and provides that any person who causes a computer system to perform a function, knowing that the access he intends to secure is unauthorised, commits an offence and is liable to a fine not exceeding Rs 50,000 and to imprisonment not exceeding 5 years. This section of the law is used to prosecute the unlawful withdrawal of money at ATMs.
Besides criminal liability, a Facebook post can also entail civil liability under article 1382 of the Civil Code which provides that « Tout fait quelconque, de l’homme, qui cause à autrui un dommage, oblige celui par la faute duquel il est arrivé, à le réparer ».
The above legal provisions have to be analysed together with article 12 of our Constitution which protects freedom of expression. The exercise of this freedom is subjected to such conditions or restrictions as are necessary in a democratic society and for the protection of others.
Mauritian courts have not yet ruled on Facebook posts and likes. It is interesting to note that in India, a woman used Facebook to question the need to shut down Mumbai for the funeral of a controversial political leader. A case of hurting religious feelings through social media was lodged against her and another lady who liked her post. The Press Council of India condemned this incident as a violation of freedom of speech which is guaranteed by article 19 of the Indian Constitution. This attempt by the police to regulate free speech was considered to be “unconstitutional”.
In the UK, a judge defended the right of people to speak their mind even if others are offended as the necessary price of free speech in a case on demotion for opposing gay marriage. In the USA, a Facebook “like” is considered to be a form of speech and is protected under the First Amendment. Clicking the “like” button causes a statement that the user “likes” something to be published. Liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports his campaign; it is the internet equivalent of displaying a political sign on one’s front yard.
Facebook can represent uncontrolled danger to a state. For instance, Facebook was used to coordinate the riots which broke out in London in 2011. For the individual, he considers Facebook as empowering him to communicate as though he was in a law-free zone. This is a mistake. Uncontrolled communications can lead to criminal and civil liability. The legal regulation of social media is challenging because it does not fit with the paradigms of existing laws, which struggles to keep up and adapt to social media, to regulate the individual’s instant access to self-expression.