Maxence Melo charge sheet #3
The recent arrest of digital media entrepreneur Maxence Melo of JamiiForums.com raises serious questions and concerns about freedom of speech, but one relatively minor aspect of the case has potentially serious implications for a lot of people.
Among the charges laid against Melo was “management of a domain not registered in Tanzania.” This took observers by surprise; even many close followers of media and technology issues in Tanzania were unaware that it is now apparently illegal to operate a website that does not use a dot-tz domain. The relevant laws have actually been in place since 2011, however, and the government posted a notice in the press last year calling on people to adhere to it.
But since it has now come to wider attention, it’s worth asking some questions. In particular, what exactly does the law say? And more pertinently, should you be concerned if you manage a domain other than something.tz? *
The charge sheet (see above) points us in the direction of the answers. “Management of a domain not registered in Tanzania” is described as being contrary to section 79(c) of the Electronic and Postal Communications Act, No. 3 of 2010 (EPOCA), together with associated Regulations. These are public available documents (available here and here), so what do they say?
First, the act itself (excerpts) gives the Tanzania Communications Regulatory Authority (TCRA) the overall mandate to:
“regulate all electronic communication numbering and electronic addresses and ensure efficient use by … performing an oversight role on the management of country’s code Top Level Domain (ccTLD).” (79(c))
The regulations (excerpts) go a lot further:
“Any public or business entity in Tanzania shall register and use domains with country’s ccTLD, the dot-tz.” (10)
“Dot-tz Electronic Communications shall be used for all official correspondences unless where proved technically not possible.” (10(2))
“A person who contravenes or fails to comply with the provisions of these regulations commits an offence and shall upon conviction be liable to a fine of not less than five million Tanzanian shillings or to imprisonment for a term of not less than 12 months or to both.” (17(4))
My reading is that there is a lot of room for interpretation here. I have five questions:
1. Does the regulation really apply to “any public or business entity in Tanzania”, as it says?
The regulations would seem to apply even to such folks as DFID and the World Bank, as well as Statoil, etc. It is not limited to entities that are headquartered or even registered in Tanzania. And at the other end of the scale, it is not even limited to entities with an online presence – it would seem to apply also to every small business, which might not even want a website?
2. Is it acceptable to “register and use” a dot-tz domain alongside a dot-com or dot-org domain?
This is what some organisations do – Acacia Mining, for example, and indeed Twaweza – though not JamiiForums. The regulations do not state that only dot-tz domains should be used, which suggests that this approach is acceptable, but I cannot be certain that this interpretation would be shared by the police, TRCA and the courts.
3. Does “official correspondences” include official letters (and more?) sent by private entities?
If so, this would have potentially major implications for many organisations. I have not found a definition of “official correspondences” anywhere in EPOCA or its regulations.
4. Is it legally acceptable for regulations to go so far beyond what is stated in the act?
An “oversight role” suggests a fairly hands-off approach, but the regulations go a lot further. My understanding of regulations is that they explain how an Act is to be implemented, rather than extending the law into an area not covered by the act itself, which seems to be the case here.
5. Does it matter if the law is not applied equally to everyone?
JamiiForums operate their site on a dot-com domain, but so do a lot of others. A few minutes online found several Tanzanian sites operating on dot-com or dot-org addresses, including several government agencies**:
- tpdc-tz.com (Tanzania Petroleum Development Authority)
- pspf-tz.org (Public Service Pension Fund)
- ngorongorocrater.org (Ngorongoro Conservation Area Authority)
- tanzaniaports.com (Tanzania Ports Authority)
- tanzaniatouristboard.com (Tanzania Tourism Board)
- januarymakamba.com (Hon. January Makamba, Minister of State in the Vice President’s Office for Union Affairs and Environment)
- paulmakonda.com (Paul Makonda, Regional Commissioner for Dar es Salaam)
- ippmedia.com (IPP Media, publishers of Nipashe and The Guardian newspapers, owner of several TV and radio stations including ITV)
- millardayo.com (Millard Ayo, media entrepreneur, cited by a TCRA lawyer as a blogger who adheres to the rules)
- issamichuzi.blogspot.com (Issa Michuzi, media entrepreneur, cited by a TCRA lawyer as a blogger who adheres to the rules)
If these organisations and public figures are seemingly allowed to use dot-com / dot-org domains, why not JamiiForums as well?
Let me leave it there. But before I go, and before anyone points out that “mtega.com” should perhaps also be on the list above, let me clarify that I am not in Tanzania.
* I am not a lawyer, and so you should not depend on this analysis as being 100% correct. In particular, I cannot be held liable for the consequences of acting on information in this post. It is my best effort at interpretation, but if you have concerns, please seek proper legal advice.
** All these links were correct at the time when Maxence Melo was charged, and at the time of publication of this post.