Social Media Taxes
Module 2: Restricting Access and Content
Overview of social media taxes
Social media taxes, as the name indicates, refer to the trend of placing additional taxes on users on the use of social media. For some time, this was a popular approach among African governments seeking to cash in on the growing usage of international social media platforms. In recent years, such taxes have become less common, with some converting into other forms of online usage taxes and others being removed entirely.
Uganda’s experience with social media taxes has been most controversial, with the introduction of the Excise Duty (Amendment) Act 2018.(1) This Act envisaged 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) was supposedly intended to create a level playing field among telecommunications service providers and to favour local content over international content. However, in practice, service providers transferred the cost of the tax to users, resulting in increased costs to access the internet.
Impacts of social media taxes
The Uganda example clearly illustrated that 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.”(2) 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.”(3)
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.”(4)
Uganda subsequently abandoned the OTT tax but later introduced a new 12% excise tax on internet bundles that are reportedly disproportionately affecting women, exacerbating the gender digital divide.(5) Tanzania and Zambia have also initiated such schemes, along with attempts in a host of other countries in East and Southern Africa.(6) Some taxes have taken a slightly different form, such as Ghana which implemented a 1.5% levy on electronic money transfers.(7) This trend sparked concern among digital rights activists and individual users alike.
Kenya also attempted to implement a Digital Service Tax in 2020 with the passing of the Finance Act, 2020. However, after a legal challenge, the High Court nullified the Act on the grounds that the Senate had not participated in its passing.(8)
Human rights implications of social media taxes
Such taxes have clear rights-based implications. The additional financial burden curbs people’s access and enjoyment of online content and may also diminish their ability to access information and exchange ideas. When the Uganda tax was introduced, Human Rights Watch 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.”(9) 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.”(10)
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 2019, the ACHPR adopted the Declaration of Principles on Freedom of Expression and Access to Information in Africa.(11) The Declaration affirms that “the same rights that people have offline should be protected online and in accordance with international human rights law and standards” and that these rights apply “through any medium.” It recognises the importance of the internet in advancing human and people’s rights in Africa, particularly the right to freedom of information and expression.
The Declaration explicitly addresses the issue of social media taxes under Principle 38(3) on Non-interference, which states that:(12)
“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.”
A positive shift in tax burdens
In contrast to the burden of social media taxes placed on internet users on the continent, there is growing support for the notion that international digital platforms, particularly social media companies, should be taxed in the countries in which they operate and generate revenues, including those in Africa. In 2023, the Organisation for Economic Co-operation and Development (OECD) secured agreement from 138 countries on a landmark initiative that would enable major reform to the international tax system to more fairly tax digital platforms in the jurisdictions in which they earn revenue.(13) This is seen as a fairer, more equitable, and rational way of boosting tax revenues in countries seeking to benefit from the rise of digital technologies without hindering the expansion of access to the internet to those with limited ability to pay.
Licenses and registrations
Another tactic frequently used by states on the continent is the implementation of laws and regulations that require bloggers, social media users, and independent journalists to register or obtain licenses in order to publish online. In addition to implicating their individual rights to freedom of expression, it must be emphasised that these types of internet users fulfil an important role in our contemporary society by disseminating information and enabling discussion, and many international standards and guidelines on freedom of expression online provide legal standards that protect bloggers and journalists alike.(14) Requiring these users to obtain licenses or become registered to share content may inhibit their ability to disseminate information and constitute unjustified restrictions on these rights.
In 2018, the ACHPR expressed concern regarding the growing trend of states in East Africa in particular adopting stringent regulations on the internet and internet platforms that included various forms of taxes and licenses.(15) 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 was 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.(16)
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.”
There are several examples of countries in Sub-Saharan Africa that have or have attempted to, implement such license or registration regulations.
Recent examples in Africa
Kenya
The Kenyan Film and Classification Board requires citizens to obtain a license to be able to post videos intended for public exhibition or sale.(17) The Board has explained that it seeks to protect national security from illegal filming activities, as well as provide an additional stream of revenue. License costs amount to KShs 12,000 (USD 74) and KSh 5,000 (USD 31) for every video produced under 40 minutes and Sh1,000 (USD 6) for every video uploaded, with stiff penalties for non-compliance.(18)
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. It remains unclear whether the regulations apply to all video producers posting on social media,(19) but the KFCB has confirmed that it applies to videos recorded using mobile phones and published on social media.(20) UNESCO, in a 2022 assessment of media development in Kenya, likewise recommended that the government withdraw the regulation due to its potential impacts on the public’s access to information.(21)
Potential developments to monitor in Kenya
In 2019, a private members’ Bill, the Information and Communication (Amendment) Bill, sought to introduce regulations relating to the licensing of social media platforms and the sharing of information by licensed persons.(22) The Bill would create obligations on social media users, require the registration of bloggers, and allow the Communications Authority to develop a bloggers’ code of conduct. 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. As of 2024, the Bill has not yet passed and has since gone through several iterations.
Tanzania
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.(23) 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. APC argued 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.”(24)
Tanzania: Attempts to oppose the Regulations
- In 2018, ARTICLE 19 argued that the Tanzania Regulations were defective and wholly at odds with international standards on freedom of expression, recommending that they be withdrawn entirely.(25) After subsequent amendments were made to the Regulations in 2020, ARTICLE 19 again found that several issues with the 2018 Regulations had not been addressed while others had been made worse, including a failure to limit the sweeping powers of the Authority and a failure to provide appropriate due process safeguards in the licensing process.(26)
- In April 2018, civil society activists obtained a temporary court injunction against the regulations from Tanzania’s High Court pending another hearing to decide the case.(27) As a result, owners of social media platforms are required to register and comply with the regulations.
Lesotho
In 2020, Lesotho proposed the Lesotho Communications Authority (Internet Broadcasting) Rules which sought to require all social media users with over 100 followers to register as “internet broadcasters” and comply with the rules governing broadcast media houses.(28) In addition, the government was criticised for failing to publish the outcomes of the public consultation process for the development of the Rules.(29) As of 2024, it appears that the Rules have not yet been approved.(30)
Zambia
In 2021, Zambia’s Independent Broadcasting Authority likewise issued rules requiring online television stations to obtain a broadcasting license and criminalising online broadcasting without such a license.(31) It is also notable that Zambia introduced a daily levy on internet voice calls in 2018 which was subsequently withdrawn after backlash from consumers and digital rights groups, in addition to another abandoned attempt in 2010 to introduce a 17,5% excise tax on airtime and the provision of bandwidth to end users.(32)
This trend of introducing social media taxes and licensing and registration regulations in Africa warrants concern, notably the implication that states’ obligations to respect, protect and promote the right to freedom of expression can be traded off 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, as well as from burdensome obligations on bloggers and journalists.