By Shardha Rajam and Mihika Poddar​

On June 1st this year, the Parliament of Uganda imposed a tax on usage of social media and internet messaging platforms such as Whatsapp, Facebook and Twitter. The Ugandan Government, which on prior occasions has shut down and regularly censored digital media, claimed that the tax was imposed to raise revenue and to stop the spread of rumours. In a country with a per capita GDP of $615, a $19 tax on access of social media is prohibitive, increasing the digital divide and consequently stifling free speech. Given that Uganda’s budgetary expenditure was almost double its revenues in 2016-17, the social media tax has been welcomed by some as a move to bridge the fiscal deficit. Here, we explore how the tax falls foul of some of the basic freedoms guaranteed in international instruments.

The tax was imposed by Uganda’s Excise Duty (Amendment) Bill, 2018 as part of an overhaul of the excise duty law which is to take effect in July. The tax is levied on all ‘over the top’ (‘OTT’) services, which generally indicates communications services provided over the internet, that run ‘on top’ of traditional telecommunications networks that are heavily regulated. The bill defines such services as “transmission or receipt of voice of messages over the internet protocol network” This would include all social media as well as internet-messaging platforms.

While a tax in and of itself may seem justifiable, as a levy on the use of a service, and as not hampering free speech as it is not a complete shutdown, an impact-based assessment would indicate otherwise. Users are already taxed for using airtime and data, and therefore, would in fact be subject to double taxation by the social media tax. The digital divide, especially in the developing world, is troubling, and is mostly attributable to economic barriers to data and services, as well as government policies of censorship and creation of other access barriers. In this backdrop, levying such a prohibitive tax will only expand the divide, pushing these services beyond the reach of the less affluent.

The tax is not only on internet usage in general, rather, it only applies to usage of certain communication platforms. However, the platforms that the tax targets play a crucial role in the digital space, enabling not just social engagement for leisure and recreation, but also increases participation in political dialogue and public discourse – hallmarks of a strong democracy. It also supports several web-based commerce and other e-services. All of these capabilities will be threatened by this tax.

It is proposed in the Bill that ‘over the top’ services will ‘not include educational or research sites prescribed by the Minister by notice in the Gazette.’ Thus, only the government will have the discretion to list platforms that will be exempted from the tax. This comes as a severe blow to principles of net neutrality (preventing discrimination in the flow of information on the internet), as the government’s bias towards certain content and expressions can easily influence these decisions. The Ugandan government has already confirmed that it filters content in public posts to ‘prevent misuse’ of social media platforms. It is thus plausible to anticipate that this wide discretion afforded to the government will be used as a censorship tool.

The Uganda Communications Commission has stated that local versions of Facebook and Twitter will be available to the public, thereby indicating that Ugandans have alternative social media platforms. Although there could be a good argument that this encourages local entrepreneurship, a government-controlled digital platform will make it easier to censor and control content. Much like China’s hold on the local internet, it is easy to foresee the Ugandan government shadow banning dissenting opinions, and eliminating ‘sensitive content’ under the garb of national security. Further, diversity of content and platforms is in itself an indicator of an open and democratic internet. Individuals should not be left scrounging for platforms to express their opinions, as the very purpose of free speech is the ability to express in the medium of one’s choice, and not have governments dictate which platform is inappropriate.

At the international level, the right to access and disseminate information has been recognised as an essential element of free speech and expression. The UN Special Rapporteur’s report urges that access to the Internet be considered in human rights terms and stresses the importance of achieving universal access to the Internet. The UNHRC recently passed a resolution for the “promotion, protection, and enjoyment of human rights on the internet”, condemning “measures to intentionally prevent or disrupt access to or dissemination of information online in violation of international human rights law”. It builds upon Article 19 of the UDHR as well as General Comment No. 34 of the ICCPR that require State Parties to ensure access to the internet. Further, according to Para V of the UN Millennium Declaration, the benefits of information and communication technologies must be available to everyone. Such exorbitant taxation will disrupt access by creating economic barriers, and fall foul of these international instruments.

President Yoweri Museveni has been in power in Uganda for more than 30 years, and the present social media tax belongs to a long-held tradition of quelling dissent. Although covered up under the guise of raising revenue, the smoke screen fools few. Uganda’s apathy towards digital freedom has inspired others, with the Democratic Republic of Congo, Kenya, Chad, Gambia, Mali and Tanzania displaying the same indifference. Moving beyond the obviously problematic imposition of internet shutdowns, governments are now developing more indirect ways to control information flow. It must be emphasised that it does not matter whether the State provides alternatives to social media platforms or requires the taxes to overcome a fiscal deficit, as these justifications do not fulfil the narrow threshold of restrictions to free speech. The attempts to regulate OTT services have been on the rise worldwide, using various tools such as taxation and soft-peddling censorship. These trends are worrisome and need to be called out now, before using regulatory tools as a garb to curb digital freedoms becomes common state practice.

Shardha Rajam and Mihika Poddar are currently undertaking the BA-LLB (Hons.) at The West Bengal National University of Juridical Sciences.

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