In an era of digital and social media, crimes have transitioned into the virtual or cyber space. To address these challenges, the Computer Misuse Act, 2011 was enacted to protect electronic and cyber space users from some crimes created or encountered online. (Assuming that you are aware of such terms as cyber space, virtual space or online for that matter.
The Computer Misuse Act 2011 creates a number of offenses and these include unauthorized access, access with intent to commit or facilitate commission of an offence, unauthorized modification of computer materials, unauthorized use or interception of computer services, unauthorized obstruction of use of computer, unauthorized disclosure of access code, unauthorized disclosure of information, electronic fraud, child pornography, cyber harassment, offensive communication, and cyber stalking.
In the heat of political, economic and social debates, which a number of Ugandans engage in on social media, some have fallen victims or been charged of the crimes highlighted in the Computer Misuse Act. As many people now use electronic means to communicate, it is important to understand what offensive communication is and how to engage on issues around it.
Under section 2 of the Computer Misuse Act, computer means an electronic, magnetic, optical, electrochemical or other data processing device or a group of such interconnected or related devices, performing logical, arithmetic or storage functions; and includes any data storage facility or communications facility directly related to or operating in conjunction with such a device or group of such interconnected or related devices. This definition thus covers the use of phones, tablets among others.
What is offensive communication?
Section 25 of the Computer Misuse Act, 2011 provides “any person who willfully and repeatedly uses communication to disturb or attempts to disturb the peace, quiet or right of privacy of any person with no purpose of legitimate communication whether or not a conversation ensues commits a misdemeanor and is liable on conviction to a fine not exceeding twenty four currency points or imprisonment not exceeding one year or both”.
The word ‘willful’ according to Webster’s Universal English Dictionary means stubborn; or done intentionally. The word repeatedly means ‘many times, over and over again. Thus a person who stubbornly and intentionally uses communication over and over again is said to disturb or attempt to disturb the peace, quiet or right of privacy of any person especially where there is no purpose of legitimate communication.
Legitimate communication occurs where the purpose of a particular electronic communication is genuine and lawful and occurs between genuinely existing individuals or entities. Where a person poses as a legitimate or trusted entity or individual and yet seeks to convince another to handover their personal details or information or any valuable thing, that act is called phishing; it is a form of electronic fraud. That communication is not legitimate. Where there is no purpose of a legitimate communication between the sender and receiver of electronic communication; there is practically nothing in common between the sender and receiver warranting the communication, such communication is illegitimate.
To test the legitimacy of any communication, the persons must genuinely exist; there must be a genuine purpose necessitating the communication.
In summary, to prove offensive communication, the prosecution must show the following:
- The communication was willfully or stubbornly sent to the complainant
- The communication was repeatedly sent to the complainant
- The communication had no legitimate purpose
- The communication disturbed or attempted to disturb the peace, quiet or right to privacy of the complainant
- The accused was responsible for the said offensive communication.
The Mens rea
Mens rea is the criminal intent that informs a criminal act or omission. The intention of an offensive communication must be to cause distress as held in the case of CONOLLY VS. DPP, EWHC WLR 276. In that case, court found that the applicants act of sending indecent and grossly offensive articles with intent to cause distress/anxiety fit in the definition of malicious Communications under the Communications Act and thus guilty. Our Computer Misuse Act doesn’t provide for malicious communications, though the ingredients reviewed are similar to that of offensive communication. The issue for appeal before court was whether her purpose for sending the photographs had been to cause distress to the recipients. Court held that in considering whether any communication is offensive, the purpose and intention of the communication must be examined.
Some arguments against the law:
In a democratic and free society, prosecuting people for the content of their communication is a violation of what falls within guarantees of freedom of expression in a democratic society. In the European Court of Human Rights case of Handyside v UK References: 5493/72, (1976) 1 EHRR 737,  ECHR 5, it was observed that freedom of expression includes the right to say things that ‘offend, shock or disturb the state or any sector of the population’. The Court concluded that taking prosecution is such cases wouldn’t be appropriate.
It also is an affront on the rule of law since enforcing these kinds of standards requires certain predictability in the law, which the offence doesn’t seem to proffer.
It is not just enough that a complainant is fearful of a particular communication to allege cyber stalking. A set of trailing or nature of actions that show the complainant is being haunted by the accused must be shown. In the case of Kassandra Cruz et al vs. United States of America et al, the appellant was sentenced to 22 months in prison and 100 dollars in special assessment as well as 217,832 dollars in restitution. She had created a profile on Facebook and Instagram in false names posing as a male called Giovanni to stalk a female she found on a pornography site. She subsequently sent friend requests to the victim in order to win her friendship. The victim noticed the strange behavior in this Giovanni and blocked “him”. Cruz threatened to expose the victims’ past if she did not comply with her demands for 100,000 USD in exchange for her to stop. She did this with 900 calls and text messages both to her personal phone and work phone. She was later arrested during a pre-arranged meeting in May 2016.