Challenges of Regulating Online Content in Tanzania: An Analysis of Legal Frameworks and Hindrances to Justice

1. Introduction

This article intends to study legal avenues availed to a victim of online bullying. There are legislations enacted to govern online content in social media, mass communication, etc. The focus is on the governance of online published content on social media. Amidst the existence of governing laws, there are accounts publishing content that would attract criminal and/or civil allegations.1 The existing legislations provide a quasi-judicial and judicial avenue for an avenging victim of the online published content.

Social media has a good number of apps constituting it, each has its requirements for becoming its user. Towards becoming a social media user in many of the current platforms, share similar requirements, including, owning an e-mail or cell phone number, personal name, date of birth, and other personal details. Once, one completes entering the required information, one becomes the owner of an account within the social media forum, be it Facebook, Instagram, etc. The technology is not a condition to reject or deny the account creation of any person with such an interest, who has successfully entered information in all required portfolios. Technically, the machine cannot recognize the account creator, for mechanically it accepts all data entered as true to the best of the knowledge of the account creator. Hence, the creator is at liberty to manipulate the data to personal advantage.

The law provides a quasi-judicial and judicial procedure in adjudicating allegations arising from online content. At both stages, the burden of proof lies on the person who alleges. The first thing to be proved is the identity of the offender. In order to ensure the security and validity of online accounts, personal information such as name, email, phone number, and address may be collected from users during the account creation process2. This personal information is used to verify the user's identity and prevent fraudulent activity or misuse of the account. Various identity verification methods may be employed, such as two-factor authentication3 or submission of government-issued identification documents4. However, in some cases, a user's identity may be assumed to be genuine based on their behavior or reputation within the online community5. The level of identity verification required may depend on the nature of the service being accessed, the user's intentions, and the associated risks

It is therefore apparent that an account may be created with fictitious information, thus making it impossible to prove the identity of the account owner on the social media platform, before either a quasi-judicial or judicial body. It is this gap this article intends to study.

Contribution of the Study

• The paper provides a critical analysis of the legal frameworks governing online content in Tanzania, highlighting their shortcomings in identifying the publishers of obscene, offensive, bullying, and harassing content. This analysis can inform policymakers and legal experts in Tanzania and other countries facing similar challenges in regulating online content.
• The paper sheds light on the hindrances to justice in Tanzania's digital space, particularly in relation to the proliferation of anonymous social media accounts. This can help raise awareness among the public and stakeholders about the need for better legal frameworks and enforcement mechanisms to ensure justice in the digital age.
• The paper contributes to the growing body of literature on the regulation of online content and freedom of expression in Africa. By focusing on Tanzania, the paper provides a case study that can inform comparative research on the legal frameworks and challenges facing other African countries in regulating online content.

To summarize, this study is divided into several sections. Section 2 presents background information on this article. Section 3 provides a detailed explanation of social media in Tanzania. Section 4 provide details about The Tanzania Communications Regulatory Authority (TCRA), the organ for regulating online content, section 5 provides details about online account owner, and section 6 explain how to handle complaints concerning online content. Section 7 of this study gives out the recommendations and the last section gives the summary of the findings as well as future work.

2. Background

Social media online content in Tanzania is regulated by the Electronic and Postal Communications Act6, The Electronic and Postal Communications (Online Content) Regulation of 20187, and other legislations. In 2018, the Legal and Human Rights Center challenged the Electronic and Postal Communications Act (EPOCA) regulation, on powers to make regulations as vested to the Minister under EPOCA8. It was in response to the enacted online content regulation which labeled some online publications as offending the law, identified authorities and responsible organs to deter, adjudicate and open court process in dealing with such alleged offenses emanating from the online published content. LHRC in this matter was defending the Constitutional right to freedom of expression9. This article is not disputing the necessity of protecting not only the right to freedom of speech but all other constitutional rights. They are all of the equal importance and should all be exercised subject to limitation.10 Nevertheless, this article intends to enrich existing legislation governing social media to see it fit, on how recognition of the account creator should be made transparent.

The online content is facilitated by online content service providers, online content hosts, and users. Every individual in that chain has a legal obligation to fulfill in ensuring full security of whose information has been published online. As a general rule, all personal information is supposed to be published only after agreed terms between the publisher and the person whose information is to be published. Anyone acting without such contractual obligation on personal confidential information is committing a crime or civil wrong. It is the reason various organs have been mandated to adjudicate matters arising from online content, including the judiciary. Regulation 18 of the Electronic and Postal Communication (Online Content) Regulation 201811, provides that:

“Any person, who contravenes the provisions of these Regulations, commits an offense and shall, upon conviction be liable to a fine of not less than five million Tanzanian shillings or imprisonment for a term of not less than twelve months or to both.”

In cognizance of the online publications that may attract legal attention, the regulation provided room for those offended by the online published information to open cases before the courts of law, either criminal cases or civil suits. In either matter to be taken before courts of law, it is mandatory for the complainant to identify the offender. Besides this immense legislative effort, there is a gap in the identity of the offender, for, technically, social media browser has left it to a loss for account creator to remain anonymous. Many countries saw this come with administrative approaches to manage the identity of the account creator, which are going to be detailed herein.

3. Social Media Use in Tanzania

Social media is an integration of different networks that provides a platform for the user to post video/s, audio, text/s, graphics, emojis, and other services. Online Content would take either of the above forms. Transmission of online content is done by the online content host, through a server, protocol, web server, and companies. Social media users in Tanzania access services through mobile companies. Globalization built a very competitive world. Every day the world sophisticates mean reducing the costs of engaging in global business competition through digital technology. Today, there are many online businesses, entertainment accounts, and strong use of social media platforms (Facebook, Instagram, TikTok, etc), all of which jointly simplify the means of communication.

Social media has hugely simplified distance communication that was previously done through postal or telecommunication, which both were expensive if compared to the current use of this media. Telecommunication is very expensive for both local and international communication. While the use of bandwidth, in making local and international calls is cheap. Many social media users do not register using their true personal information. The fictitious information used by EPOCA and its regulation is fit in protecting online content, although provides a questionable legal procedure to handle criminals and civil offenders. Social media i.e Instagram, Facebook, Twitter, and TikTok in Tanzania have a wide range of users. Circumstances have shown their positive contribution to the development of quick communication. However, incidents have also shown their negative impact on violating individual persons' right to privacy.

For instance, the year 2016 gave birth to a person camouflaging himself/herself under the name KIGOGO who has been playing hide and seek, by publishing government and persons internal affairs with an intent to shame them. Kigogo who is hiding under the auspices of technicalities underneath digital technology is to date unknown and still interfering with private information. Consequently, many anonymous accounts have been created that publish harassing, bullying, offensive, and obscene either true or false information without the consent of the information owners. Some of those do it, believing, they have constitutional protection, but that is not the case.12 While others live in countries that permit such online content publication without the consent of the information owners. Being the quick means of sharing information, social media in Tanzania has an economic impact on individuals, government entities, and proprietors. Today the majority of Tanzanians own smartphones, which is the internet transmission tool. Nevertheless, Tanzania Communications Regulatory Authority (TCRA) through its establishing legislation13, as provided under Regulation 4[14, every user to be registered. Much as the above requirement is provided, one has, therefore, to register a sim card with one of the telecommunication companies, providing service in Tanzania; Airtel, Vodacom, Tigo, TTCL, or Zantel. These telecommunication companies sell all their products to their use including internet bandwidth.

4. TCRA on social media

Tanzania Communication Regulatory Authority (TCRA) has been granted the administrative responsibility of regulating the conduct of media content, among other duties. This regulatory body may take actions such as deleting harmful content online and prohibiting its spread to prevent further damage caused by users. Apart from the application of the authority’s mandate, individuals who have been offended by cyber-related crimes may choose to pursue criminal charges with the police cyber department. In the case of a civil matter, the aggrieved party can seek the court's permission to present electronic evidence. It is the responsibility of every user to report any wrongful behavior, whether it's criminal or civil, that they come across online. The complaint can be filed with online content service providers, online content hosts, TCRA, or ultimately, the courts of law. The proper procedure for filing a complaint starts with reporting the issue to the online content host. If the user is not satisfied with the host's decision, they can take their complaint to other forums, such as TCRA or the court of law, as provided by the law.

The regulatory bodies are responsible for monitoring online content and are required to take action within twelve hours of receiving a complaint. In cases where content is under question, the user responsible for the content will be given time to respond and explain why action should not be taken against their account. Online content hosts have the authority to take measures such as prohibiting the content and deleting the user's account as deemed necessary. The EPOCA regulation of online content has established a judicial avenue for individuals who are not satisfied with administrative decisions. In cases involving criminal activity, complaints may be filed at the police station and subsequently taken to the Director of Public Prosecution's office. For civil cases, individuals seeking compensation or damages may institute a suit directly at the courts of law.

Companies providing online services have a crucial role to play in cooperating with the authorities entrusted with the responsibility of ensuring the security of their users. Given that evidence in cases involving online content is often in electronic form, the original copy of such evidence is typically held by the online content hosts and service providers. As a result, the originality of the evidence is dependent on the actions and processes of these companies. Therefore, these companies must take appropriate measures to safeguard and preserve electronic evidence to ensure its authenticity and integrity. When creating personal accounts online, users have the freedom to enter non-existent personal information such as names, birth dates, place of domicile, educational qualifications, and other details. Since the account creation process is conducted online, the identity of the account owner can remain unknown to online content service providers, hosts, and other users. This anonymity can be concerning when it comes to the regulation and monitoring of online content. However, it is important to note that intentionally providing false information during the account creation process may be deemed illegal and can result in legal consequences.

When the identity of the account owner is unknown, it can be difficult to file a criminal or civil suit against them. In such cases, authorities may attempt to track down the owner through the IP address or other means of identification. EPOCA regulation aims to protect the right to privacy by setting guidelines for the collection, use, and dissemination of personal information by online content hosts and service providers. However, as digital technology evolves, there is a growing concern over the security of the digital platform, with evidence showing that experts can manipulate the system for their benefit. In addition, the privacy protection guaranteed by the Constitution of the United Republic of Tanzania15 is increasingly being called into question. It is therefore important to assess whether the current legal framework is sufficient to offer adequate protection against online published content.

5. Identity of the Online Account Owner

The identity of the online account owner refers to the personal information of the individual who created the account, including their name, address, and other identifying details. In some cases, the identity of the account owner may be unknown or intentionally hidden, making it difficult to hold them accountable for their online activities

5.1. What is Online Content?

Digital media that can be accessed via the internet through a web browser or other internet-enabled device is referred to as online content16. This content can take various forms, such as text, images, audio, and video, and can be created by individuals or organizations17. Online content may be distributed via websites, blogs, social media platforms, or other online channels, and can be either free or paid18. It can be used for a variety of purposes, including entertainment, education, communication, and marketing. Scientific online content refers to digital media containing scientific information or knowledge, often published on scientific websites, journals, or databases19. This content, which may include research articles, data sets, images, and videos, is typically created and published by scientists, researchers, or academic institutions and is often subject to peer review or expert vetting20. The use of scientific online content has grown in importance in recent years due to the increasing digitalization of scientific research and publication21.

The minimum age for creating an online account on social media platforms may vary by platform and country. In the United States, the Children's Online Privacy Protection Act (COPPA) prohibits websites from collecting personal information from children under the age of 13 without the consent of their parents or guardian. As a result, many social media platforms have a minimum age requirement of 13 years old for creating an account. However, some platforms may have higher minimum age requirements. For example, Facebook has a minimum age requirement of 13 years old, while LinkedIn has a minimum age requirement of 18 years old. In addition, certain countries may have laws regulating the minimum age for creating online accounts. For example, the General Data Protection Regulation (GDPR) in the European Union requires that children under the age of 16 must have the consent of their parent or guardian to create an online account. It is important to note that these age requirements are not always strictly enforced, and it is possible for younger children to create an online account with a fake birth date. It is the responsibility of parents and guardians to monitor their children's online activity and ensure that they are using social media platforms safely and responsibly.

In some cases, accounts on social media platforms may be created by bots (Social media bots)22, which are software programs that can be programmed to perform automated tasks, including creating accounts. The use of bots to create social media accounts is generally discouraged due to the potential for spamming or other malicious activity23. Generally, social media bots can be used to spreading spam or misinformation, create fake accounts to influence public opinion, or manipulate online discussions and engage in cyberbullying or harassment. To address this issue, some social media platforms have implemented measures to detect and prevent the creation of accounts by bots.

5.2. Authenticity of Online Account

The verification of the authenticity of online accounts on social media can be challenging due to several reasons. Firstly, individuals can create fake accounts or use pseudonyms, making it difficult to accurately identify their true identity. Moreover, it is easy for individuals to steal or manipulate personal information to create fake accounts, making it hard for social media platforms to confirm the validity of the account. In addition, social media platforms may not possess the necessary resources or technologies to effectively identify and prevent the creation of fake accounts.

A study published in the Journal of Computer-Mediated Communication found that "social media users often engage in identity play, creating and inhabiting multiple, simultaneously present identities"24. This means that users may present different identities or information in various contexts, making it challenging to determine the legitimacy of an online account. The anonymity and lack of accountability in online environments also make it easier for users to create fake accounts or manipulate their identities. Another study published in the International Journal of Human-Computer Studies discovered that social media users frequently have multiple online profiles and identities, which can make it difficult to verify their authenticity25. The study also found that individuals may create multiple profiles for various purposes, such as preserving their privacy or separating different aspects of their online identity. These factors can complicate the process of identifying and verifying the legitimacy of online accounts on social media platforms.

6. Handling of Complaints

Handling complaints is the process of receiving, reviewing, and responding to complaints or grievances made by individuals or organizations regarding a particular issue or situation. In the context of online content regulation, handling of complaints refers to the procedures put in place by online content hosts, service providers, and regulatory authorities for receiving and addressing complaints related to online content, such as inappropriate or illegal content, violations of privacy, or intellectual property infringement. The handling of complaints may involve investigation, mediation, or legal action, depending on the severity and nature of the complaint.

6.1. Complaint at the First Instance

It is the legal requirement as provided under regulation 1626, for any aggrieved person to file a complaint to the service provider, as the first remedy. Social media has provided a forum for every individual who owns an account within the specific media to lodge complaints and act upon them. On receipt of a complaint, the service provider doesn’t hold the hearing forum but instead executes commands within the reach of the specific forum, be it, blocking, banning accounts, suspending the account, etc.

The service provider has one advantage, of not dealing with the identities of the person behind the account but direct with the published online content. Such a unilateral decision has been impactful in stopping the spread of online content complained against. Although many times these decisions have been helpful, legally they lack the sense of justice, and don’t deter the person from creating several other accounts and posting similar content. Thus, making apprehension and trying the alleged person a very important procedure.

6.2. TCRA as the Quasi-Judicial Organ

Tanzania Communication Regulatory Authority (TCRA) is mandated under regulation 1727 to inquire, demand a response from a service provider within twelve hours, and hear complaints lodged against the online published content. TCRA under its Content Committee, after being satisfied if the complaint is worth requiring adjudication, may constitute a disciplinary hearing and make a decision.

At this stage, is where there must be identified person against whom allegations have been lodged. The burden of proof is left on the complainant. In simple terms, based on the technicalities of the technology, the complainant may be able to identify the complainant who used personal information on his/her registered account, while leaving it impossible to identify an anonymous person.

6.3. Judicial Procedure

Regulation 18 of the Electronic and Postal Communication (Online Content) Regulation28 provides that;

“Any person, who contravenes the provisions of these Regulations, commits an offense and shall, upon conviction be liable to a fine of not less than five million Tanzanian shillings or imprisonment for a term of not less than twelve months or to both.”

The above provision provides room for any person to prosecute offensive online content through the judiciary. With the current developments in evidence laws29 online content with criminal or civil elements, can be tried at the courts of law in the United Republic of Tanzania. However, is the matter admissible amidst the anonymity of the offender?

This article intends to signify the importance of the identity of the online account owner. Be it a criminal or civil suit, there must be the proper party to the suit. It is the normal legal procedure in prosecuting these cases. Whenever a person or group of persons or an entity feels his/her privacy intruded on by the published online content, may institute a criminal case. It is either by filing a complaint to the Police office, or directly filing a criminal case at the courts of law. Either way, the Director of Public Prosecution is to be involved.

The above provision requires the culprit to be identified in the course of an arrest. The visual identity of the person was best explained in the below case law:

"The evidence in every case where visual identification is what is relied on must be subject to scrutiny, due regard being paid to all the prevailing conditions to see if in all the circumstances there was sure opportunity and convicting ability to identify the person correctly and that every reasonable possibility of error had dispelled. There could be a mistake in identification notwithstanding the honest belief of an identifying witness."30

Admissibility of the evidence in either criminal or civil cases highly depends on the identification of the offender. A complainant has the duty to identify, who is the case filed against31. It is further important to prove that, the accused is the person who did the wrong.

"For a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person as to leave a remote possibility in his favour which can easily be dismissed."32

7. Recommendations

It is often difficult to regulate the content published on social media platforms due to the enormity and decentralized nature of the platform. A study found that the volume and speed of content published on social media make it challenging for traditional content moderation techniques to keep up33. Furthermore, the anonymity and pseudonymity offered by many social media platforms can make it difficult to identify the individuals or organizations responsible for publishing certain content34. Consequently, there have been calls for the development of more advanced and automated methods for identifying and removing inappropriate content from social media platforms35.

In the case of bots, there are several approaches that can be taken to prevent bots from creating or publishing content on social media:

• Implementing CAPTCHAs: A CAPTCHA (Completely Automated Public Turing test to tell Computers and Humans Apart) is a challenge-response test that is used to determine if the user is a human or a bot. CAPTCHAs can be implemented during the account creation process to prevent bots from creating accounts.
• Implementing Two-Factor Authentication: Two-factor authentication (2FA) requires the user to provide two different forms of identification when logging in or creating an account. This can make it more difficult for bots to create or access accounts.
• Monitoring Account Activity: Social media platforms can monitor the activity of accounts to detect and prevent bot-like behavior. For example, if an account is posting a large number of messages in a short period of time, it may be flagged as a bot.
• Implementing AI-based Detection Systems: Artificial intelligence (AI) can be used to analyze the behavior of accounts and detect bot-like activity. For example, machine learning algorithms can be trained to recognize patterns of behavior that are indicative of bot activity.
• Educating Users: Social media platforms can educate their users about the risks of interacting with bots and how to identify fake accounts. This can help users to be more cautious and less likely to engage with bot-generated content.

8. Conclusion and Future work

In conclusion, verifying the authenticity of online accounts on social media is challenged by several factors, such as users' ability to create fake accounts or manipulate their identity, insufficient resources or technologies for detecting and preventing the creation of fake accounts, and the intricacy of users' online identities and profiles.

As online content publishers, it is crucial to address various ethical concerns when sharing information on the internet. These include verifying the accuracy of the content being disseminated, refraining from plagiarism, respecting the privacy of individuals, complying with copyright laws and fair use provisions, avoiding promoting hate or discrimination, refraining from engaging in harassment, and taking responsibility for the content being shared.

Disregarding these ethical considerations may lead to the proliferation of misinformation, legal ramifications, and harm to individuals or communities. Therefore, it is critical for online content publishers to act with honesty and weigh the impact of their actions. Apart from the general ethical considerations related to online content publishing, social media platforms present specific issues. Online content publishers on social media should verify the accuracy and authenticity of the information they share, disclose their identity and motivations transparently, comply with the community standards of the platform, and maintain professionalism in their interactions. This encompasses avoiding the dissemination of false or misleading information, disclosing any conflicts of interest or biases, and refraining from personal attacks or the promotion of hate or discrimination. By embracing these ethical considerations, online content publishers can contribute to fostering a positive and respectful online environment.

In the future study, we expect to do a comparative analysis of the legal frameworks governing online content in different African countries, with a focus on the challenges and opportunities for regulating social media and anonymous online content, to perform an empirical study of the impact of online anonymity on freedom of expression and the hindrances to justice in Tanzania and other countries, and to conduct a critical analysis of the role of social media in shaping public discourse and political participation in Tanzania, with a focus on the opportunities and challenges for promoting democratic values and human rights.