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Ethiopia - Proclamation on Telecom Fraud Offences

06 August 2012

Legal analysis

In this analysis, ARTICLE 19 finds the recently adopted Proclamation 761/2012 on Telecom Fraud Offences (“the Proclamation”) to be fundamentally flawed from a freedom of expression and information perspective, and recommends its immediate repeal.

The Ethiopia House of Peoples’ Representatives passed the Proclamation on 11 July 2012. It creates new offences related to the use and provision of telecommunications services, and increases sentences for a number of existing offences. It also extends the Anti-Terrorism Proclamation and the Criminal Code to electronic communications. The Proclamation will gain legal effect once published in the Federal Negarit Gazett.

ARTICLE 19 finds that the purposes of the Proclamation, to protect the state monopoly over telecommunications and safeguard national security, do not comply with international standards on the right to freedom of expression and information. In particular, the lack of a definition for “national security” gives the law uncertain scope and may encourage limitations on legitimate expression. The Proclamation is therefore likely to undermine rather than advance its stated aims of promoting “peace, democratisation and development” in Ethiopia.

The most concerning aspect of the Proclamation is the extension of the Anti-Terrorism Proclamation 2009 (already criticized by ARTICLE 19 in the past) and the Criminal Code of 2004 to electronic communications in Sec. 6. In particular, the Anti-Terrorism Proclamation has attracted broad condemnation from a number of international human rights bodies for violating the right to freedom of expression and information; its extension in the Proclamation shows a flagrant disregard for these rights. The Criminal Code of 2004 contains provisions that do not comply with international standards on the right to freedom of expression and information, including prohibitions on “obscene” communications, criminal defamation, and prohibitions on expression specifically engineered to protect public officials from criticism. The extension of these provisions to electronic communications is also a significant cause for concern.

It is also concerning that the Proclamation increases sentences for pre-existing telecommunication offences, including the prohibition on call back services and telephone or fax services over the Internet. Despite assurances given by the Ethiopian government to the contrary, ARTICLE 19 is unable to conclude that these provisions do not threaten to impose criminal liability for the provision or use of services such as Skype or Google-Talk. The lack of clarity over the scope of this prohibition is likely to have a significant chilling effect on the use of such technologies in the country, and thereby limit the free flow of information.

Further, the Proclamation imposes criminal penalties for individuals who fail to obtain a license for various commercial and non-commercial activities surrounding telecommunication usage. These provisions are ambiguous in scope and impose unnecessary obstacles for individuals to access information dissemination systems in Ethiopia.

Recommendations

  • The Proclamation on Telecom Fraud Offences must be repealed in its entirety.
  • The Ethiopian government must reform the telecommunications sector and prioritise promoting universal access to the Internet.
  • The Anti-Terrorism Proclamation and the Criminal Code must not be extended to cover telecommunications, but must be amended to protect the right to freedom of expression.

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