RECENTLY, we discussed privacy and data protection within the context of the voters’ roll and certain events of the past week appear to have confirmed some peoples’ worst fears. Zanu PF sent election campaign bulk SMS messages, which identified recipients by their names, constituencies and wards.

By Miriam Tose Majome

They obviously used a database whose origins are the subject of a ceaseless heated debate. The bulk personalised text messages were too close to call and suspicious for a lot of people, who felt their privacy had been breached. The heated accusations and denials are still going on about where Zanu PF obtained the database they used. Zanu PF has claimed ownership of the database saying they used their cell membership database using freely given information, but not everyone is convinced. Many theories are being proposed such as use of sophisticated data mining and profiling software that identifies and narrows targeted people using existing publicly held information. However, the chief accusations are being labelled at the Zimbabwe Electoral Commission (Zec) that it gave Zanu PF a voters’ roll with telephone numbers, but it has denied this. Mobile phone companies were also accused of having sold their customer databases to political parties, but they also strenuously denied it.

The increase in usage of telecommunication services and devices corresponds with an increase in the incidence and diversity of related offences. Telecommunication offences are listed from Section 80 of the Post and Telecommunications Act Chapter 12:05.

Consent

The telecommunications regulator did not escape the charge either of supplying Zanu PF with the national mobile subscriber database. Some of the accusations were downright bizarre and unhelpful.

The Postal and Telecommunications and regulatory Authority of Zimbabwe (Potraz) immediately issued a strong cautionary statement regarding abuse of telecommunications and breach of privacy through unsolicited calls and bulk messages.

Potraz’s main point was that it is imperative for customers to consent to receiving promotional bulk SMS texts from third parties and must be given an unambiguous opting out choice that they can unsubscribe from the service.

No entity, no matter how powerful it may be — including the State itself, can infringe the communications of other people. Offences related to communications are found in Part XI of the Postal and Telecommunications Chapter 12;05 read in with Section 57 which guarantees the right to privacy.

Offensive calls and messages

It is a criminal offence to send offensive telephone messages or use mobile and fixed telephones in any manner that is deemed offensive. The unsolicited campaign messages received by some registered voters could be deemed as offensive by some people, who feel the messages were are too intrusive, but this is arguable.

Unsolicited phone calls can also be a nuisance if they are unwanted. It is not a requirement to record the alleged abusive calls to prove the offence as records can be obtained on the outgoing or incoming call history, although it is not always possible to identify or track some numbers because of the use of encryption technologies.

Examples of offensive telephone messages are indecent or obscene messages or telephone calls of a threatening or menacing character that are intended to intimidate or cause other undesirable outcomes.

The simple act of making a phone call or sending text messages or disseminating social media messages with the intention of insulting someone is an offence, as too are spam messages for marketing or other promotional purposes.

Section 88(b) states that any person who sends by telephone any message that he knows to be false or otherwise for the purpose of causing annoyance, inconvenience or needless anxiety to any other person commits an offence.
Spam from mobile phone companies

Mobile telephone companies churn out countless unsolicited messages per day and these messages are spam. Spam messages are a collection of unsolicited unwanted bulk electronic messages generated automatically usually for commercial and other promotional purposes.
There is a difference between genuine advertising and customer abuse. Most folk are intelligent reasonable people and ordinarily don’t mind receiving the odd promotional messages within reason. However, when the messages are so numerous and frequent that they have subscribers teetering on the edge of insanity, the phone company could be liable for prosecution for criminal nuisance.

Subsection (v) of the said schedule states … Any person who employs any means whatsoever which are likely materially to interfere with the ordinary comfort, convenience, peace or quiet of the public or any section of the public or does any act which is likely to create a nuisance or obstruction; shall be guilty of criminal nuisance.
Remedies for nuisance calls, messages

Section 88(c) prohibits the making of telephone call or series or combination of calls without reasonable cause for the purpose of accusing annoyance, inconvenience or needless anxiety. Crank callers or heavy breathers fall under this category as well as spam callers and messages such as can non-stop “call me back” messages or repetitive promotional messages. These are criminal offences and all criminal offences are reportable to the police and chargeable and triable in court. Criminal charges can be laid against mobile phone companies and other organisations as much as they can be laid against individuals for generating and sending spam messages.

Mobile companies are generally the biggest generators and purveyors of spam messages. Importantly, the law provides remedies and penalties for such undesirable behaviour, so there is no need for mobile phone users to suffer in silence. Help is only available to those who actively seek it. If the campaign messages are deemed as nuisance acts they should be reported to the police and tried in court. Examples of criminal nuisance acts, are listed in the third schedule of the Criminal Law Act Chapter 9;23 under Section 46.

Fake news

Election campaigns anywhere are always colourful and highly charged. The Zimbabwe 2018 elections can draw strong parallels to the 2016 United States elections and its attendant histrionics that catapulted the notion of fake news into everyday conversations.

Under Zimbabwean law, fake news is already flagged as an offence if it is purveyed by telephone because it is an offence to transmit false messages by phone. Since mobile telephone devices are the majority purveyors of telecommunication messages, subscribers are the largest culprits of spreading unlawful fake news. The existing laws, therefore, affect all mobile telephone users, as they are all potential offenders if they pass on messages without verifying the truth and source of the information.

 Miriam Tose Majome is a lawyer and a teacher. She writes in her personal capacity and can be contacted on enquiries@legalpractitioners.org