Artists and Cyber Crime Bill

HARARE - Lawyers, media and political analysts believe the proposed Computer Crime and Cyber Crime Bill will affect artistes in their execution of duty as online platforms would be restricted especially for those whose work the state deems political incorrect or dangerous.

Lawyer Jacqueline Chikakano thinks there is one key provision that may impact on the exercise of artistic freedom in Zimbabwe and that is Section 18 on pornography.

Chikakano said this provision is more likely to impact on artistic expression than the former. “This is more so considering that the word pornography is not defined and the bill goes on to criminalise the; a) production, possession, and availing of material that is considered ‘pornography’ in a computer system; b) and for purposes of this offence, publishing pornographic material includes; Distribution, transmission, possess, dissemination, circulating, exhibit, exchange, barter, sell or offer for sale. It also includes; printing, photographing and copying such pornographic material.

“This provision if passed as is, would impact on the performing and visual artists as well as the writers for as long as the material is distributed or published through a computer system. “This is because the offence affects persons who produce such material for purposes of distribution through a computer system; it also affects persons who ‘possess’ such which can be all three as well as persons who ‘exhibit’ them which can affect the visual and performing artists especially.

“So for as long as the artistic creations in any form, are published or distributed through a computer system then these classes of artists could be found to have breached this law.”

Chikakano said the danger with this provision from an artistic point of view, largely stems from the fact that what constitutes pornographic material is not defined hence any artistic piece can fall under the purview of the materials considered as ‘pornographic’ and with the offence attracting up to 10 years imprisonment, this provision could have a chilling effect on persons seeking to exercise this right.

“There are arguments against whether or not pornography especially possessing it in one’s computer system should be criminalised, if it is to be retained however, there is need among other remedial action, to streamline and define what sort of materials constitute pornography especially from an artistic expression point of view.

“Like all laws, this bill must provide certainty in respect of the prohibited conduct and that includes in respect of materials that are considered to be pornographic.”

Scriptwriter and actor Enock Chihombori said the bill is more politically motivated than being morally motivated.

“Creativity within the artists is derived from, or motivated by many aspects of life including politics. Many artists use satirical productions to express themselves. This usually comes in the form of theatrical productions, short skits, cartoons or even films.

“I quote ‘Satire is the use of humour, irony, exaggeration, or ridicule to expose and criticize people's stupidity or vices, particularly in the context of contemporary politics and other topical issues’.

“Now these days’ computers, cellphones and other electronic devices are widely used to communicate, transfer or distribute information, which in this case could be politically laden satirical artistic productions.

“These can be deemed unpalatable by the law and infringe on the artists' freedom to express themselves on topical issues,” said Chihombori.

He added that most products might not reach their intended targets or most artists might feel muzzled and hence fail to produce. “As we know, most comical artists thrive on topical issues, and topical issues need to be consumed timeously.

“Any hindrance in delivering is a compromise on the artist's ability to succeed in their chosen field. This Bill also has the danger of being used selectively. Laws should be applied without fear and favour.”

Legislator and lawyer Jessi Majome said: “My view is that the Bill will further censor, and in an unconstitutional manner, the right to freedom of expression including that of creativity in an already cowed population.

“The dictatorship has long closed out the mainstream media and now seeks to asphyxiate the only available means of dissemination to creatives. What's left is for them to challenge it not only using the law, but also with conscious creativity itself.”

Award winning actor and law graduate Edgar Langeveldt said as far as artists go, they are not criminals necessarily but he sees some attempts to silence certain ideas, plays, web pages, groups, music or design.

“If this law is to protect society that is fine but if it is to incriminate and persecute, it will face ideological and technological resistance of unpredictable forms.

“Artistic freedom - like any other freedom - is predicated on the right to choose, think and express oneself within a community. While it does not target artists they as members of society will obviously adjust their thinking or actions.

“But I don't think it should prejudice the artist or become a form of advanced repression or suppression.

“In my opinion, this Bill is a knee jerk reaction to recent events, where government became nervous about the internet's power to effect rapid change in the dissemination of information, opinions and public mood,” said Langeveldt.

The actor added that correct application and interpretation of the provisions cannot harm anyone, but a license to intrude and seize is unacceptable if the person is targeted as opposed to the material. “On balance, it will reduce negative messages like hate speech but in reality it will not radically alter anyone's beliefs or views.

“The test for artists may arise only in the most extreme of cases. Generally, it is a watchdog, not a determinant.”

Human rights lawyer Dewa Mavhinga said the mere existence of the Bill can induce self-censorship in artists, journalists, and writers fearful of having the draconian law invoked against them.

“The Computer Crime and Cyber Crime Bill goes against the spirit of expanded media freedom and protection of artists and writers in an open, democratic, and transparent society as envisaged by the Constitution,” said Mavhinga.

He added that the proposed Bill is the clearest signal yet that freedom of expression is imperiled in Zimbabwe.

“Despite the constitution guaranteeing access to information, freedom of expression and of the media, this vague and draconian Bill could soon become a government instrument for the harassment and persecution of journalists, artists, and writers,” said Mavhinga.

Media practitioner and MISA-Zimbabwe programmes officer Tabani Moyo said the Bill exposes citizens to vulnerability as it is an extension of the legal regime aimed at limiting expression rights online.

“It is not limited to general citizenry but the arts since the artists have become creative forces of dissenting voices making commentary on the socio-economic and political crisis in Zimbabwe.

“However we must note that the bill is coming as an addition to a whole gamut of laws governing expression off-line.

“Remember artists have fallen prey to laws such as the Censorship and Entertainment Controls Act(CECA), AIPPA, Broadcasting Services Act, the Criminal Law Codification and Reforms Act to name but a few.

“So the bill exerts weight of a ring of laws that are violating the constitution of the republic.”

Moyo added that the bill militates against the constitutional provisions under section 61 which provides for freedom of artistic expression. “For instances the Bill sets the conditions of search and seize which are wide and open to abuse.

“It defines a framework that legalise the collusion of the two powerful forces namely the government and the private sector (Mobile network operators and Internet Service Providers) in analysing the citizens' data for the purpose of criminalising expression online and undermining privacy of the populace.”

Political analyst Maxwell Saungweme said the Bill will definitely try to stifle creativity and limit artistic freedoms. “But based on our history, including recent history the more you try to gag artists, the more they become more creative and more incisive.

“In this age of social media and advances in information technology it's outdated to seek to silence artists by oppressive laws. It seems the sponsors of this Bill are residing on the wrong side history.”

Media analyst Rashweat Mukundu said the concern is that the cyber law would criminalize freedom of expression by targeting opponents of government for arrest and prosecution over their works.

“The law must be very specific on what constitutes a crime so that citizens can know how to act. If the law is vague then it will be subject to abuse by clamping down on dissenting voice. “Criticism of government and activism be it political or so must not be criminalized. Acts of criminality be it financial, business or otherwise must be clearly spelt out if that is the intention of the law,” said Mukundu.

Voluntary Media Council of Zimbabwe executive director Loughty Dube said: “The Bill will mainly affect issues of freedom of expression, while issues of computer crimes are of major concern.

“The timing of crafting the Bill raises suspicion that government is concerned in curtailing activists who have taken their protest to the internet.

“There should be a clear definition of what cyber-crimes are compared to freedom of expression and general internet freedoms.”

Filmmaker and producer Nigel Munyati could only say: “No more than the existing draconian laws which are restricting artistic freedom. I actually think this is a pathetic piece of legislation that will have little effect.”

Visual artist Chiko Chazunguza said art being as versatile as it is, it causes very different kinds of reactions among people.

“It is my hope that as artists we shall be viewed with that generous eye as before. With the growth and appreciation of new media among designers and artists we are surely going to see lots of social apps and software and should these then be put to use by people with other agendas we sincerely hope that these community serving apps won’t be banned or stopped.” Chazunguza added that cyber laws are necessary and healthy for any given country.

Film actor and producer Tawanda Gunda has doubts that the bill will work any miracles for artists.

“In my opinion most artists are just not moving with the times and expect the distribution models of record bars and the like that were in place in the 1980s and 1990s to be still applicable in this era.

“First of all, a product really has to be worth the money to make a sell as consumers have more options available to them now than then. There are way more artists on the market now than before.

“What is required now from the artist is a really good product, and then consistency in terms of the quality of product and delivery to the market. With innovation there are lots of ways to monetise a quality artistic product which makes piracy a blessing in disguise. For instance, all the Jamaican artists making track to Zimbabwe and filling venues have never officially sold a single record in Zimbabwe.

“If I have a really good record I could sell a leather jacket with my image on it for $200 and give away the album for free,” said Gunda.

(Baseline contributions by Nhimbe Trust)

Comments (1)

limitation of rights guys mochema porno tipeiwo maserious read data protection act if its journalistic yu are protected kwete zvimwe izvi

moser - 17 October 2016

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