Social Media Taxes
Module 2: Restricting Access and Content
Overview of social media taxes
Social media taxes, as the name indicates, refers to the fairly recent concept of an additional tax that is placed on social media users. This has been a growing trend in Africa, with Uganda leading the way with the introduction of the Excise Duty (Amendment) Act 2018. This Act envisages that “a telecommunication service operator providing data used for accessing over-the-top services is liable to account and pay excise duty on the access to over-the-top services.” Taxing over-the-top services (OTTs) is supposedly set to create a level playing field among telecommunications service providers and to favour local content over international content.
Impacts of social media taxes
Such taxes “disproportionately and negatively impact the ability of users in Uganda to gain affordable access to the internet, and thus unduly restrict their right to freedom of expression.”(1)
The Ugandan Tax Authority reported that within a year of the tax being introduced, it had only received 17% of the anticipated revenue. Reportedly, many social media users relied on virtual private networks (VPNs) to avoid the financial implications of the tax, and research has found that the tax “actually lowered domestic tax revenue and reduced Internet use.”(2)
Further, “since mobile money is disproportionately used by lower-income households and individuals (informal sector, women, youth, etc), mobile money taxes have implications on the attainment of financial inclusion and wider socio-economic development goals”.(3) Uganda subsequently abandoned the OTT tax, but later introduced a new 12% tax on internet data, which is likely to have similar effects.
Tanzania, Mozambique and Benin have also attempted to initiate such taxes, along with a host of other African countries.(4) This trend has sparked concern among digital rights activists and individual users alike.
Human rights implications of social media taxes
There are clear rights-based implications for the use of social media. The additional financial burden will curb people’s access and enjoyment of online content, and it may also diminish their ability to access information and exchange ideas. Human Rights Watch has expressed concern that the proposed tax is “just another way for authorities to stifle free speech”, explaining that “[t]axing anyone to use social media is an affront to their basic human rights.”(5) Research ICT Africa has pointed out that “in some countries these taxes are… a tactic for repressive governments to control freedom of speech where dissent coincides with the largest band of Internet users, who are often between 18 to 35 years of age.”(6)
The international human rights framework on access to the internet and the promotion of the right to freedom of expression has been discussed, in detail, above. The same principles apply here, save for the addition of a brief review of the African human rights system.
In 2016, the ACHPR adopted a Resolution on the Right of Freedom of Information and Expression on the Internet in Africa. The Resolution recalls the 2012 United Nations Human Rights Council Resolution, discussed above, and affirms that “the same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice.” The Resolution recognises the importance of the internet in advancing human and people’s rights in Africa, particularly the right to freedom of information and expression.
In 2018, the ACHPR expressed concern regarding the growing trend of states in East Africa adopting stringent regulations on the internet and internet platforms. The ACHPR noted particular concern over the following developments:
- The Electronic and Postal Communications (Online Content) Regulations 2018 in Tanzania, which introduced licensing requirements for bloggers who are now required to pay up to 2,100,000 Tanzanian Shillings (around USD900) for licences.
- The Excise Duty (Amendment) Bill 2018 in Uganda, which requires users of OTTs, such as social media platforms, to pay UGX200 (USD0.05), per user, per day of access.
- The directive issued by the Kenya Film and Classification Board on 14 May 2018 requiring licences for anyone posting videos for public exhibition or distribution online on their social media accounts.
- The 5% levy on telecommunications proposed by the Nigerian government in 2022, which was halted after Communications and Digital Economy Minister Isa Pantami argued that the sector was already over-taxed in the face of rising costs.
The ACHPR further stated:
“These regulations may negatively impact the ability of users to gain affordable access to the Internet, which goes against States’ commitment to protect the right of every individual to receive information, as well as the right to express and disseminate one’s opinion within the law which is provided under Article 9 of the African Charter on Human and Peoples’ Rights.”
The ACHPR’s 2019 Declaration of Principles on Freedom of Expression and Access to Information in Africa also addresses the issue of social media taxes under Principle 38 on Non-interference, which states that:
“States shall only adopt economic measures, including taxes, levies and duties, on internet and information and communication technology service end-users that do not undermine universal, equitable, affordable and meaningful access to the internet and that are justifiable and compatible with international human rights law and standards.”
Recent examples in Africa
The Kenyan Film and Classification Board requires citizens to obtain a license to be able to post videos for public consumption. The Board has explained that it seeks to protect national security from illegal filming activities, as well as provide an additional stream of revenue. The additional cost raises concerns about the ability of video producers to operate, including concerns that this could have far-reaching consequences for freedom of expression online, although it is unclear if the regulations apply to all video producers posting on social media.
Potential developments to monitor in Kenya
The Kenya Information and Communication (Amendment) Bill was presented to Parliament in 2019. The Bill seeks to introduce regulations relating to the licensing of social media platforms and sharing of information by licensed persons. The Bill aims to create obligations on social media users, requires the registration of bloggers, and allows the Communications Authority to develop a bloggers code of conduct. The Board appears to be calling for the adoption of this legislation. The Board’s CEO has indicated that “social media is a threat to the country’s moral fabric as it negatively influences the youth.” Although the Bill appears to have languished since its introduction in 2019, such legislative efforts raise serious concerns for freedom of expression on the internet.
Tanzania has also introduced licensing requirements which attach additional fees to social media. The Electronic and Postal Communications (Online Content) Regulations, 2020 introduced new online content regulations. Bloggers, in particular, are required to pay unreasonably high fees in order to obtain a license. Among other concerns with the regulations, the licensing requirement has been heavily criticised for being incompatible with the right to freedom of expression. The Association for Progressive Communications (APC) argues that:
“Tanzania’s new excise duty in the form of online content licence fees fundamentally threatens universal access to and affordability of the internet. Consequently, it clearly constitutes a limitation on the right to freedom of expression. Further, it is unjustifiable when measured against the arguments that could be made by the Tanzanian government in support of the increase, such as the need to ensure appropriate excise duty levels in order to ensure the fiscal sustainability of the state in meeting the developmental and other socioeconomic rights of its inhabitants.”(7)
Attempts to oppose the Regulations
- In 2018, ARTICLE 19 reviewed the Tanzania Regulations. The report ultimately found that they were defective and wholly at odds with international standards on freedom of expression. ARTICLE 19 recommended that the Regulations should be withdrawn entirely and called on the Tanzanian government to do so. ARTICLE 19 also reviewed subsequent amendments to the Regulations in 2020 and found that several issues with the 2018 Regulations had not been addressed at all, and others had been made worse, including failure to limit the sweeping power of the Authority and a failure to provide appropriate due process safeguards in the licensing process.
- In April 2018, Reuters reported that civil society activists obtained a temporary court injunction against the regulations from Tanzania’s High Court that would require bloggers to, among other things, pay a tax, obtain a clearance certificate and obtain an operating license.
- In May 2018, Reuters reported that the Tanzanian government overturned the injunction. As a result, owners of social media platforms are required to register and comply with the regulations.
The trend of introducing social media taxes in Africa warrants concern. There appears to be a misnomer that states can wilfully ignore their obligation to respect, protect and promote the right to freedom of expression in pursuit of economic gain. The ACHPR, civil society actors, and affected individuals should continue to speak out against these trends. Litigation, policy reform and advocacy strategies need to be urgently adopted to re-route the current trajectory away from increased reliance by states on social media taxes.