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    Social Media Taxes

    Module 2: Restricting Access and Content

    Overview of social media taxes

    Social media taxes, as the name indicates, is a recently conceived tax 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.

    While there is still uncertainty around the practicalities of the tax, what is apparent is that it will “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) Kenya and Tanzania appear to be following suit with the imposition of social media taxes and other regulations, which may restrict access.

    This trend has sparked concern among digital rights activists and individual users alike. 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. Uganda can try to dress up this draconian new tax as a benefit, but, in reality, it is just another clumsy attempt to limit free speech.”(2)

    Human rights implications of social media taxes

    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 African Commission on Human and Peoples’ Rights (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 peoples’ 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 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.”

    In 2019, the Special Rapporteur on Freedom of Expression and Access to Information in Africa issued a press release on the continuing trend of internet and social media shutdowns in Africa.  While this press release was directed more at internet shutdowns, it provided a useful reminder that “the internet and social media have given voice to the people of Africa who may now discourse on social, economic and political issues far more than ever before, and states should not take away that voice.”

    Recent examples in Africa

    Uganda

    As briefly discussed above, Ugandans are required to pay 200 shillings a day (about 0.05 USD) to access OTT services, which include social networking and messaging apps.(3) In January 2020, the Uganda Revenue Authority reportedly proposed that the OTTs tax be transformed into a fully fledged tax on internet data to be paid by users.

    Of the approximately 45 million people in Uganda, nearly 25 million have a mobile subscription and around 19 million are internet users. Given that Uganda is a developing country, it is difficult to understand why the state has resolved to tax individual users rather than profitable foreign based social media platforms or even local digital media publishers. The tax is significant and diminishes access to, and affordability of, the internet for the majority of Uganda’s population.(4) The implications for the right to freedom of expression are clear.(5)

    Estimated impact of the tax

    It appears that the Ugandan Tax Authority reported that within a year of the tax being introduced, it has only received 17% of the anticipated revenue.  Reportedly, it appears that many social media users are relying on virtual private networks (VPNs) to avoid the financial implications of the tax.

    Kenya

    The KenyanFilm and Classification Board requires citizens to obtain a license to be able to post videos on the internet.  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.

    Potential developments to monitor in Kenya

    The Kenya Information and Communication (Amendment) Bill 2019 is presently before Parliament.  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.”

    Tanzania

    Tanzania has also introduced licensing requirements which attach additional fees to social media.  The Electronic and Postal Communications (Online Content) Regulations 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.”(6)

    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.
    • 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.

    Conclusion

    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.

    Footnotes

    1. ARTICLE 19 ‘Eastern Africa new tax and licensing rules for social media threaten freedom of expression’ (2018) (accessible at https://www.article19.org/resources/eastern-africa-new-tax-and-licensing-rules-for-social-media-threaten-freedom-of-expression/). Back
    2. Human Rights Watch ‘Uganda’s Troubling Social Media Tax New Law Restricts Right to Free Speech and Information on Social Media’ (2018) (accessible at https://www.hrw.org/news/2018/07/02/ugandas-troubling-social-media-tax). Back
    3. CIMA, ‘How Social Media Taxes Can Burden News Outlets: The Case of Uganda’ (2019) (accessible at https://www.cima.ned.org/publication/how-social-media-taxes-can-burden-news-outlets-the-case-of-uganda/). Back
    4. APC, ‘Human rights impacts of taxing popular internet service’ (accessible at https://www.apc.org/sites/default/files/Human_rights_impacts_of_taxing_popular_internet_services_0.pdf). Back
    5. ARTICLE 19 update (2020) (accessible at https://www.article19.org/resources/ugandas-proposed-tax-on-internet-data-threatens-the-rights-to-freedom-of-expression-and-access-to-information/).  See Uganda Business News, ‘Week in review: Trade disputes, social media tax, African internet registry’ (2020) (accessible at https://ugbusiness.com/7993/week-in-review-trade-disputes-social-media-tax-african-internet-registry). Back
    6. APC above n 17 at 12. Back