In October 2014, ARTICLE 19 assessed the state of Internet freedoms in Senegal. In particular, we examined the compatibility of the Senegalese legal framework governing the Internet against international and comparative standards on the right to freedom of expression and freedom of information.
This analysis is published on March 2015 as a contribution to the current national debate on the reform of the legal framework on freedom of expression in the digital age.
In the analysis, ARTICLE 19 notes a number of positive aspects of the Senegalese legal framework pertaining to the Internet, in particular:
- Recognition of right to freedom of expression in relation to digital technologies in a number of laws and decrees,
- General lack of obligation for internet service providers to monitor the information they transmit or to search for illegal activities unless ordered to do so by judicial authorities,
- Positive proposals in the Draft Press Code including to abandon notice-and-take down provisions for Web-hosting providers and adopt a system requiring a judicial order.
However, there are a number of areas that fall significantly below the international standards and which could have a serious impact on freedom of expression in Senegal. Of particular concern is the Cybercrimes Law; which imposes a number of content limitations on freedom of expression that are vaguely worded and potentially very wide ranging. Similarly, the Decree on Encryption impose numerous requirements to seek permission from a commission before providing, importing, exporting and in some cases using encryption software. Additionally, the draft Press Code, whilst including a number of positive changes also tightens the definition of journalist would have the effect of excluding most bloggers and citizen journalists and continues to impose excessive liability for offences related to defamation, slander and insult.
Summary of recommendations
- Defamation should be fully decriminalised, including for online content. The provisions setting the penalties for insult, slander, defamation and similar offences should be removed.
- The definition of journalists (Article 168 of the Draft Press Code) should be modified to focus on the function of the individual and not an affiliating with a particular outlet;
- The notice-and-takedown system (Article 3 of the Law on Electronic Transactions) should be replaced with a system requiring a judicial order to remove content as suggested in Article 163 of the Draft Press Code;
- The notice-and-takedown system proposed in article 161 of the Draft Press Code for the liability of directors and co-directors of online press services should be replaced by a notice-to-notice system;
- Article 431-7 of the Cybercrime Law should be amended to include a broader category of grounds, including gender, age, political or other opinion, sexual orientation, gender identity or disability;
- The crime of incitement to violence, discrimination and hostility should require an intent;
- The word promote should be removed from the definition of racist and xenophobic material;
- Articles 431-60 and 431-61 should provide a definition of the term “secret information.” In particular, it should distinguish between the various categories of classified information;
- Articles 431-60 and 431-61 should be re-drafted so that all offences require harm to national security or national defence.
- Articles 431-60 and 431-61 of the Cybercrimes Law should include an express public interest defence;
- Article 227 of the Draft Press Code permitting the authorities to suspend a press outlet for an attack on ”good morals” should be removed;
- Article 159 para 5 of the Draft Press Code preventing editors of an online press service from publishing content susceptible to present violence in a favourable way should be removed;
- The limitation of free use of encryption software to those with keys of less than 128 bits in article 2 of the Decree on Encryption should be removed. The free use of encryption technology should be extended to all individuals not just those acting in a private capacity.