Reconciling Freedom of Expression with the Internet in Mauritius?

Recently, a social media had to pay a fine of  Rs. 50,000 imposed by a court of law in the Republic of Mauritius for “using an information communication service for the purpose of causing inconvenience”.The judgment has been pronounced after important amendments were brought to the Information and Communication Technologies Act 2001 (ICTA 2001) so that to regulate a broad range of offences such:-

  • Identity theft;
  • Fraud; or
  • Any damages caused to an information and communication installation or service.

In light of those amendments and the ever increasing usage of social media platforms and networks in Mauritius, it might be a good exercise to revisit the new potential liabilities of social media/network users if found to be in contravention of the ICTA 2001.


Section 46 ICTA 2001

Section 46 of the Information and Communication Technologies Act 2001 provides a list of the possible offences giving rise to potential prosecutions if social media/network users contravene them. It is crucial to understand that the wordings of Section 46 has been changed with the aim to lower the threshold of liability for social media/network users and provide a better avenue for victims of online abuses/threats/hatred.

Amongst the sub-sections of Section 46 the most relevant provision which directly concerns social media/network users is found in Section 46 (ga) and it provides partly as follows:-


"uses telecommunication equipment to send, deliver or show a message which is obscene, indecent, abusive, threatening, false or misleading, which is like to cause or causes annoyance, humiliation, inconvenience, distress or anxiety to any person".


In contrast with the previous Section46(h)(ii) of the ICTA 2001 the requirement to prove intent to cause annoyance, inconvenience or anxiety has simply and purely been removed making it much easier for the prosecution to prove its case. Recently there has been a case that has been lodged at the level of the Supreme Court of Mauritius about the constitutionality of this Section 46(ga) and therefore some light will be shed on its interpretation in the near future. 


However in the meantime given that the threshold is low, any comment, publication, post/repost on social media/networks that potentially causes annoyance, inconvenience or distress may theoretically give rise to prosecutions. It is also worthy to note that the penalty for such offence entails a fine not exceeding Rs 1,000,000.00 and imprisonment not exceeding 10 years. 


It is therefore vital to draw a clear demarcation line between regulating the misuse of social media/networks and allowing every citizen to express oneself freely without any fear on such platforms as this is going to pave the way for our new digitised model of democracy.