Introduction

The increase in internet access in the recent past has created a number of new legal challenges. The internet is transnational, amorphous, and difficult to define, and as such the new landscape created by the digital world has often confounded the law when it comes to protecting fundamental rights in the digital age. Old definitions about what constitutes a publisher or a journalist are increasingly complicated; overcoming the anonymity afforded by many internet platforms can be a difficult, if not impossible, endeavour; and there are serious questions about who is liable for content shared online that may affect multiple parties in different jurisdictions.

Regulating and legislating crimes that occur on, or relate to, the internet has been a difficult undertaking for states and international bodies. It is estimated that African economies are losing $4 billion annually due to cybercrimes,(1) roughly 10% of the continent’s GDP,(2) and Africa now has the third highest number of cybercrime victims in the world.(3) Without adequate regulatory frameworks and protections, the growth of internet access, e-commerce, and economic development may lead to increased instances of cybercrimes.

In Africa, where the number of new internet users continues to grow at a rapid rate, the increase in access to the internet and information and communications technologies (ICTs) has also led to increased violations of users’ rights. Laws to regulate criminal activity on the internet are increasingly providing tools for the state to suppress dissent or to punish critics and independent media because of their often vague and overly broad nature.

As far back as 2011, the United Nations (UN) Special Rapporteur on freedom of expression warned that:

“[L]egitimate online expression is being criminalized in contravention of States’ international human rights obligations, whether it is through the application of existing criminal laws to online expression, or through the creation of new laws specifically designed to criminalize expression on the internet.  Such laws are often justified on the basis of protecting an individual’s reputation, national security or countering terrorism, but in practice are used to censor content that the Government and other powerful entities do not like or agree with.”(4)

Unfortunately, little has changed in the intervening period.