The case number 456 that was filed in 2016 by the Republic of Tanzania against Jamii Forums Executive Director, Maxence Melo, and Mike William before Magistrate Thomas Simba at the Kisutu Resident Magistrate has finally been ruled after more than 3 years with a severe blow to Freedom of Expression and Online Privacy.
Mike Mushi has been acquitted of the charges on the basis that he was mistakenly added in the first place. Maxence Melo has been found guilty of the charges and sentenced to pay a fine of Three Million shillings or 1 year in jail. The fine has been paid and Maxence has been released.
This sentence comes more than three years since Maxence was arrested by the Central Police on December 13, 2016, where he was temporarily detained for 5 days and then sent to Keko Prison for 3 days to which he was released on bail but with three other cases; the others being case 457 and 458. The shareholder Mike William was later added to the charges in February 2017.
The original charges of the case were Obstruction of investigation under Section 22 (2) of the Cyber Crimes Act of 2015, for not complying with an order of disclosure of data in his possession. The reference to the charges was that of refusing to cooperate with the ongoing Police Investigation that required revealing information and user data of certain members, to mention specific to this case (456), is that of Fuhrer — JF Expert Member. The member had whistle-blown on the platform alleging Oil Com being involved in tax evasion scandal by illegally leasing and draining oil at the Dar es Salaam port.
In a turn of events, as opposed to the police seeking further information on the thoroughly shared embezzlement plan, they were more interested in getting user information including the IP address of the whistle-blower. With time the indictment was changed by the republic in November 2017 to new charges. The new indictments indicated that the defendants were ‘corrupting or distorting data’ in violation of the Internet Error Act Section 22 (1) “Intentionally and unlawfully destroy, delete, alter, conceal, modify, renders computer data meaningless, ineffective or useless with intent to obstruct or delay the investigation.
So far, the case has had four witnesses from the prosecution side, then Deputy Zonal Crime Officer (ZCO) who is now the Senior Superintendent of Police (SSP) — Ramadhani Kingai, Assistant Superintended of the Police (ASP) — Fatuma Kigondo, Inspector Police from the Cyber Crime Department — Peter Kayumbi and Oilcom (T) Sales officer — Mr. Usama Mohamed. It should be noted that the only presented item of evidence during the hearing was a printed copy of an extract of the JamiiForums website, which had been rejected by the court.
After a series of adjournments of the hearings due to a variety of reasons, the first defense eventually occurred on August 5, 2019. With the guidance of the defense council Advocate Peter Kibatala, Benedict Ishabakaki and Jeremiah Mtobesya the defendant Maxence Melo acknowledged to have been at the time of the charges; the Managing Director of Jamii Media Company in which Mike Mushi was not the Director as stated by the prosecution. Maxence further explained that there was no website that was run by Jamii Media, and that the company was licensed to run online advertisements. The defendant further stated that the website abided by the International laws that regulate websites to apply and implement privacy policies and protection of user data.
The ruling is contrary to the defendant’s victory in their first case similar to this one. On June 1, 2018, the defendants were acquitted with case number 457. In this, the republic was representing the plaintiffs who were also written on JamiiForums in regards to tax evasion, namely CUSNA Investment and Ocean Link Private companies doing Clearing and Forwarding business in Tanzania.
The defendants still have one case to go. Case number 458 has 2 counts, the first similar to the other cases and the second count, Management of a domain not registered in Tanzania: Contrary to section 79(c) of the Electronic and Postal Communication Act (EPOCA), No 3 of 2010.
What Maxence Melo says on losing the case;
Today is a gloomy and sad day for all those who believe in the rights to Freedom of Expression, Access to Information and Personal Data Protection.
It is saddening to observe that the Court has not found our defense and what we have been standing up for as sound and valid. We serve the online community as Content Service Providers. We might have a hammer but that doesn’t mean we hit every nail. Having an ability and access to personal data information should not be the only criteria for a service provider to use or misuse that user information.
As online content service providers, our main requirement/need is for there to be a well-explained guideline legally appropriate outlining what, how, who and where such information is to be handled and only when necessary and required. Right now it is still unclear to many and maybe it was unclear to the Judge as well for with digital matters, it is indeed challenging for it allows abundant collection of personal data.
This loss is not Maxence’s or Jamii Forums. It is a loss of many in general and the online community in particular. It is very unfortunate that this loss is going to hurt the Tanzanian citizens more. Many will be affected because Freedom of Expression will be violated, there won’t be a right to receive and share information. Section 18 of the Constitution gives us the right to receive and share information but this violates that right and we have to remain receivers and not share with others, especially when it is sensitive information of those in power, the powerful and locally influential.
The scope of how big the matter is may surpass some to the extent it would not be surprising that others might be celebrating without knowing what’s at stake and the danger that lies ahead. JamiiForums has been receiving letters from some government institutions, public figures, powerful individuals, all requesting to access the private information of users. The fact that the Court has seen that this as okay is heart-breaking.
When we asked the Police what laws our clients have broken they never gave us a response, we insisted we will cooperate if they told us that but they denied and the Court has approved of that without considering how much people will be affected.
We as JamiiForums won’t give up, we know what we are standing up for and despite the fact that it might have been misunderstood by the judge or Court, we will appeal at the High Court so people can have the right to receive and share information without restrictions as long as they haven’t broken the law and by protecting their privacy and rights to Access to Information and Freedom of Expression.