The increase in usage of telecommunication services and devices corresponds with an increase in the incidence and diversity of related offences. We will discuss some of these offences as prescribed in the Postal and Telecommunications Act Chapter 12:05. There has been a marked decline in usage of postal services, but they remain relevant and indispensable. The various offences are prescribed from section 80 in the Act.
Rights: MIRIAM TOSE MAJOME
Offensive Calls and Messages
It is a criminal offence to send offensive telephone messages or use mobile and fixed telephones in any manner deemed offensive. It is not a requirement to record the alleged abusive telephone calls to prove the offence. A criminal offence of any nature can be proved despite the absence of recorded or tangible evidence. Examples of offensive telephone messages are indecent or obscene messages or telephone calls of a threatening or menacing character that are intended to intimidate or cause other undesirable outcomes. The simple act of phoning or texting a message with the intention of insulting someone is a potentially punishable offence.
Fake news
The recent colourful 2016 United States presidential elections and attendant histrionics catapulted the phenomenon of fake news to everyday discussions. What is notable is that under Zimbabwean law, it is already an offence to send fake news by telephone. This is because it is an offence to use telephones to send false messages. Mobile telephone devices are the majority purveyors of telecommunication messages and in turn the largest purveyor of fake news, so the existing law affects all telephone users particularly mobile phone users. Fake news refers to deliberate publication of hoaxes, propaganda and disinformation using social media. There are as many motives for spreading fake news as there are manufacturers of fake news. Some generate fake news to drive traffic to their websites or for other devious purposes. Fake news seeks to mislead rather than inform people for financial, political or other gain.
Section 88(b) states that any person who sends by telephone any message that he knows to be false for the purpose of causing annoyance, inconvenience or needless anxiety to any other person is guilty of an offence. The false message need not necessarily fall under the ambit of fake news as described above, but it can be any other false and purposefully misleading message.
Annoying calls and messages
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Under section 88(c) people are forbidden from making a telephone call or series or combination of calls without reasonable cause for the purpose of accusing annoyance, inconvenience or needless anxiety. Crank callers or heavy breathers fall under this category as well as spam callers and messages such as the non-stop “call me back” messages or repetitive advertisements. These are criminal offences and all criminal offences should be reported to the police. Criminal charges can also be laid against companies and organisations as much as against individuals.
Right to privacy
Section 57(d) of the Constitution states that every person has the right to privacy and this includes the right not to have private communications infringed. It is a criminal offence to snoop on other people’s phones even if those people are employees or spouses. Married people retain their rights to privacy even within the marriage. People, who are married, are still individuals, who only happen to be married, but still have private personas. Nothing at law permits or encourages them to infringe each other’s rights to basic decency and privacy. There was widespread interest in the April 2016 judgment in State v Nsoro
HH160-16CRB57/16 pertaining to privacy of communications within marriage. Justice Chitapi set a land mark judgment holding that “There is no law which provides that a husband or wife has a right to infringe to the privacy of the other’s communications’’ Children also enjoy rights to privacy of their communications, but their rights are confined within parental discretion.
Theft and intercepting mail items
Any person, who is authorised to handle or receive mail or a postal article and purposefully delays it or wrongly delivers it or fails to deliver it is guilty of a criminal offence. This applies to messengers, postal officials and private individuals responsible for handling mail and postal items. The same applies to people who unlawfully communicate or divulge the contents of postal articles, which are in their custody. The same applies if they permit unauthorised persons access to such mail or postal articles. It is also an offence to hold onto mail and postal articles or wilfully delay their arrival to their proper destination. It goes without saying that stealing mail, tampering with it, concealing it, unsanctioned opening or wilfully destroying mail are criminal offences. Conviction for any of these offences attracts a fine or prison sentence of up to seven years.
Posting dangerous or obscene articles
Posting toxic and dangerous substances is prohibited. Sending parcel bombs, bullets or letters containing undesirable or intimidating objects is a serious offence. Equally criminal is sending indecent or obscene articles that may contain even one word, mark or design that can be deemed threatening or grossly offensive. Correspondence that deals with fraudulent or immoral business is forbidden from being posted. This has not been taken from the moral police manifesto, but from the Postal and Telecommunications Act Chapter 12:05
Miriam Tose Majome is a lawyer and a teacher. She can be contacted on [email protected]
