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O'Neill Government's threat to fine or jail Social media users in PNG is laughable

Admin | 5:12:00 AM |
Commentary by Bryan Kramar
On October 15 Post Courier reported "the Government has now come hard on improper users of Information Communication and Technology (ICT) Services and warns that a K20,000 fine or three months jail will apply under section 266 of the NICTA Act."
The report stated "NICTA chief Charles Punaha said that the authority will charge or punish anyone who lies, spreads false information or sends any content or communication that the person knows is offensive or of an indecent nature on social media, emails, blogs, forums including Facebook
So the question is what would have provoked the NICTA Chief to come out of his slumber and issue such a bold statement? Up until now the most vocal critic of Social Media has been the Prime Minister Peter O'Neil.
Well 10 days earlier the Minister of Communications Jimmy Miringtoro announced Mr Punaha re-appointment to the CEO position together with two members to the NICTA Board. Surprising enough their appointments were made by the NICTA Appointments Committee, which just happens to be headed by Peter O’Neill.
On October 13, eve of flying on his official visit to Japan Peter O'Neill issued a press statement warning opposition politicians and their supporters to show respect during his visit and to refrain from slanderous and bitter commentary through social media. Two days later the NICTA boss issues a threat to social media users, a coincidence or perhaps deliberately calculated?
To be honest when I first read the report I couldn't help but laugh, firstly for being totally absurd and secondly NITCA has no powers to charge or fine anyone under Section 266 of Act. It left me wondering whether the NICTA Chief arrived at this half baked idea on this own or whether he was provoked by Peter O'Neil.
I first became aware of Section 266 of NITCA Act last year after Peter O'Neill's own infamous lawyer Ms Tiffany Twivey made reference to it while threatening to take action against a number of social media commentators for making offensive comments against her client.
National Information & Communications Technology Authority (NICTA) Act or law was introduced by Parliament (Somare Government) in 2009. It was to regulate the information and communications technology industry, including radio-communications through the establishment of a Government Authority (NITCA). The NICTA Act of 2009 replaced both the Telecommunications and Radio Spectrum Acts of 1996. NICTA Act gives the Authority, comprised of an Executive Board, Chief Executive Officer (CEO) and staff specific powers to attain its objectives prescribed under its Act.
Section 266 falls under part 15 of the Act; relating to Offences, Penalties and Enforcement. It pertains to the improper use of Information and Communication Technology (ICT) Services which includes mobile phones; hand-held radios, television and the internet. The provision (section) states that a person who, by means of an ICT service sends any content or communication that the person knows is offensive, indecent, obscene or menacing character; or for the purpose of causing annoyance, inconvenience or needless anxiety to another person; including sending any content or communication, that he knows to be false is guilty of an offence where the penalty is a fine not exceeding K20,000 or imprisonment for term not exceeding 3 months or both. So this isn't a new law but a provision of the Act that was first introduced in 2009. However it is the first time for the Government to threaten to invoke it on its citizens.
So following his reappointment by the Prime Minister the NITCA chief is now threatening to invoke this provision to charge "anyone" who "lies" on social media, emails, blogs, forums including Facebook.
I would understand if he had taken issue with anyone who knowingly sends offensive (malicious or abusive language) or indecent (pornographic) communication such as a naked selfie with malicious intent. However he has instead focused on the rather lessor contentious issue of making a false statement. It is not to say I support people spreading false statements or lies, it would be a better world if they didn't but I find it hard to understand why the O'Neill Government would make it a priority policy committing K3.2 million of Government funds but yet refuse to fund the Nations Anti-corruption Task Force Sweep. It gives the impression the Prime Minister is held bent on prosecuting ordinary people who publicly criticise him on social media rather than addressing the misuse and laundering 100's of millions of the peoples money which he happens to be facing criminal prosecution over.
So does the threat by the NICTA Chief to "anyone" who tells lies or make a false statement include the Prime Minister and Minister of Communications. I have documented numerous statements by the Prime Minister which in my view to be false and misleading. Will the NICTA Chief be bold enough to walk the talk and investigate such complaints or should we assume his announcement is nothing more than another desperate effort by O'Neill Government to avoid public criticism.
In May 2014 Post Courier reported NICTA awarding of mobile network licence to a Dubai-based multinational firm, Awal Telecommunications Corporation Ltd. According to NICTA website the license was issued on 14 March 2014, valid for ten years with a concession said to be worth more than USD$260 million (K790 million). The presentation of the concession was said to have been carried out in a low key event attended by the Minister of Communication and Information Jimmy Miringtoro and the NICTA’s manager of international affairs Jackson Kariko.
The report stated Mr Miringtoro was elated when giving his speech at the presentation and that he said the Government looked forward to welcoming them into the country. "It feels really wonderful to handover the licenses to Awal. We thank them for their interest in our country and we wish that they could do wonderful things to support the government in developing telecom sector of the country. We welcome them to Papua New Guinea," he said.
At the time the AWAL's CEO announced it expected to start the roll-out of its network in June 2014. He explained the upgrading of PNG’s telecommunications infrastructure is Awal’s top priority by making the telecom facility available to the entire population of PNG by improving the network coverage and at par with the international telecom operators."
Following that announcement I made my own inquires into the company, the findings suggested AWAL's claim to be a leading mobile communications company was a scam. Refer to full article at the following link. http://www.pngict.com/awal-communications-fact-or-fiction.h…
On 27 August 2014 Post Courier raised the issue on the whereabouts of Dubai-based Awal Telecommunications Corporation and its A-Tel mobile phone company. They reported that NICTA response was that it advised that Awal gave them two dates in June and July for the rolling out of their program but there have been no developments since then.
The Minister of Communications responded by assuring the people that Awal’s K800 million A-Tel mobile company will still come and set up in Papua New Guinea at their convenient time. It was reported that Mr Miringtoro told the Post -Courier that the said month of July that was communicated to PNG for their set up was a holy month and executives travelled to Medina to say thank you to Allah, their God.
"I must assure that Awal is still coming to Papua New Guinea in fact, last month, was a Holy Month…they went to Medina, to say thank you to Allah," Mr Miringtoro said.
"Awal will still make it to PNG to roll out their full mobile program because they already have the licenses which the full board of NICTA awarded them three licenses after vigorous screening. We must have all the hope and believe in them. They will still come to PNG to invest," he said.
Attempts by the Post-Courier to get comments from the company following the expiring of their June deadline were unsuccessful.
Well it is now October 2015 where is AWAL? The Minister gave an assurance, is this not a false statement. Will the NICTA Chief stay true to his word and bring charges for misleading or false statements made in relation to AWAL. More so will he investigate himself the NICTA Board and Minister over the awarding of mobile network operator license and concession to a company whose registered office is located in Korobasea, a residential home.
O'Neill Government, Minister and NICTA Chief believe they have the powers to charge or fine anyone, well they don't. Under the Act Section 278(1) states Criminal proceedings do not lie against a body corporate or an individual merely because they have contravened (breached) this Act.
Basically this means that just because NICTA believes a person or company committed an offence under the Act they can not be criminally charged for it. In fact the Act section 279 and 280 suggests NICTA to exercise its powers to issue a warning or desist (stop) notice to any person or company who it believes has breached its Act. Where it is required to state the facts of the alleged activity and conduct a hearing to provide the person concerned an opportunity to show good cause why the desist order should not be made. The provision stipulates that NICTA must consider any representations made at the hearing.
Section 271 provides NICTA powers to prosecute offences. also referred to as private prosecution. However it must first seek the consent of the Public Prosecutor who has constitutional control and exercise of the prosecution function of the State. If the Public Prosecutor believes the allegations by NICTA are baseless and without merit it will likely refuse NICTA's request.
Any criminal or prosecution proceedings initiated will ultimately be determined by Public Prosecutor and any finding of guilt and subsequent fine or imprisonment will be determined by the Courts and not NITCA. The Court will need to first find you guilty of the charge then apply what it believes to be the appropriate penalty in the circumstances of your case. Based on the penalty prescribed for Section 266 the penalty shall be a fine "not" exceeding K20,000.00 or imprisonment for a term "not" exceeding three (3) months or both. In other words whatever penalty the Court believes is appropriate whether a fine or imprisonment it can not exceed K20,000 or 3 months term in prison. It's my view the Court given the less serious nature of an offence under Section 266 it will apply a small fine K100-K500 and avoid imprisoning any person unless they are a repeat offender and having no regard for the law or the Court's ruling.
It's important to note even if you were charged by NICTA for posting a lie or false statement to sustain the charge they would need to prove beyond reasonable doubt that a person "knowingly" lied. In that they would have to prove the person knew the truth but deliberately lied about it. A simple defence would be to state that at the time you made the statement you believed the statement to be true. The burden is then on NICTA to prove you didn't.
Example the Minister's claim that AWAL would set up their mobile network was misleading statement however he need only plead that at that time he "believed" they would. However if it can be proven that the Minister new that AWAL was a scam then it would confirm he knowingly lied about it.
A further defence against the offences under Section 266 is to assist the Court by bringing to its attention that pursuant to (in accordance with) Section 279 and 280 of NICTA Act, they should have first issued you a warning or desist notice giving you the right to be heard before bringing formal charges against you.
Further still you could argue that the enforcement of Section 266 violates your constitutional rights and therefore is to no legal effect. Section 41 of the Constitution (proscribed acts) protects corporate legal persons as well as individuals against harsh and oppressive actions. The section states that any act that is done under a valid law but is harsh, oppressive; or is not warranted, or is not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, is an unlawful act.
So is the threat by NICTA Chief to imprison any person up to 3 months or fine them K20,000 for making a false statement a harsh and oppressive act? Is it warranted to incarcerate (lock up) someone for expressing their views or opinions on issue of national interest? If the answer is in the affirmative then it would be deemed unconstitutional and to no legal effect.
Every individual is afforded constitutional qualified rights to freedom of speech. Where it is lawful to publish defamatory matter if it is true, and if it is for the public benefit that the publication should be made. It is it also a lawful excuse for the publication of defamatory matter if the publication is made in good faith. (where you believed it to be true)
Under the Defamation Act it is a criminal offence to publish a defamatory matter concerning another. Provided it can be proven the offender knew the defamatory matter to be false, then he or she would be liable to be fined an amount not exceeding K1,000.00 or imprisonment for a term not exceeding two years, or both.
To conclude it's my view that NICTA should commit its time and resources (public money) to protect ordinary people who are being ripped off by mobile companies rather than be seen to be protecting Peter O'Neill from public criticism and expending the peoples money in the process.
While the O'Neill Government pushes ahead with its plans to make legislative changes to police the use of social media in the guise of cyber crime I look forward to lobbying to have the same laws revoked and thrown in the bin the moment the Prime Minister has been removed from office.