The judgment of D. Chan Kan Cheong and Judge K.D. Gunesh-Balaghee in the appeal case of SEEGUM J vs THE STATE OF MAURITIUS has raised important points regarding the term’s annoyance as per our ICTA law.
As refresher, the appellant had been prosecuted and convicted for the offence of “using an information and communication service for the purpose of causing annoyance to another person” in breach of section 46(h)(ii) of the Information and Communication Technologies Act 2001 (“ICTA”). Prior to its amendment in 2018, the section 46(h)(ii) stipulated that “any person who… uses an information and communication service, including telecommunication service, for the purpose of causing annoyance, inconvenience or needless anxiety to any person… shall commit an offence.”
The sole focus of the judgment was on the issue of constitutionality despite the several grounds of appeal presented by the counsels of the appellant. The appellant, represented by Me M. Mardemootoo, contended that the section 46(h)(ii) of ICTA breached the section 10(4) of the Constitution of Mauritius, thus, rendering the former invalid. The requirement of Section 10(4) is that laws in criminal matters should be formulated “with sufficient precision to enable the citizen to regulate their conduct.” Ignorance of the law not being a defence, it is, therefore, of utmost importance for all Mauritian citizens to understand which behavior can amount to a breach of law.
The appellant argued that the term “causing annoyance” was vague and uncertain, thereby failing the test of constitutionality as set out in the section 10(4). However, the submission of the State’s counsel, Me K. Parson, was that section 46 (h)(ii) passes the test of constitutionality as laws for criminal matters cannot be excessively rigid at the cost of being inapplicable and, as such, the relevant provisions of the ICTA were valid. The rationale of the above-mentioned arguments is that a lack of flexibility in the definition of certain legal terms would render them futile in their application.
After considering arguments from both sides, the judges’ opinion was that the provisions of the law were indeed drafted in broad and wide terms. They referred to the ‘Concise Oxford Dictionary’ to demonstrate that the term “causing annoyance” could be simply interpreted as making someone “a little angry”. As a result, messages which would seldom be deemed as harmful or offensive by an ordinary man could fall in its ambit and this may lead to absurd situations. For instance, banters between football fans on Facebook might be within the definition of this offence.
In the judgment, a contrast has been made between the Mauritian, English and Indian provisions. Both the English and Indian provisions contain the term “causing annoyance”. In UK, the additional requirement is to establish either the person’s knowledge that the messages are false or the persistent use of a public electronic communication network to send the messages. According to the law in India, there is the requirement for both elements to be present, namely the falsity of the message and persistent use of a public electronic communication network. In the opinion of the judges, these additional elements made the offence ‘objectively ascertainable by the court and by the citizens.’ However, in Mauritius, at the time of the offence, a single message sent for the purpose of “causing annoyance”, irrespective of its veracity, would amount to an offence.
According to Judge D. Chan Kan Cheong and Judge K.D. Gunesh-Balaghee, section 46(h)(ii) of ICTA, as it was at the time of the offence, must be struck down since it was in breach of the implied principle of legality as per section 10(4) of the Constitution. The judges added that they ‘are not hereby making any pronouncement as to the constitutionality of the new redrafted section 46(h)(ii), as amended by Act No.14 of 2018.’
On 28th May 2021, the Attorney’ General Office issued a press release stating that the judgment does not concern the new amended provision. It also emphasized that the judgment was based on the principle of legality rather than the principle of freedom of expression.
It is unclear what bearing would the judgement have, if any, on the new provisions of the ICTA. For instance, could the rationale for the interpretation of “causing annoyance” be applied to the new provisions under ICTA as amended in 2018? The law is yet to answer these questions.
