Social media is a mechanism by which users are able to communicate across a wide network using a global platform/intermediary. The owners of social media intermediaries such as Facebook, Instagram and Twitter may claim to have very little control over how its users decide to use the platforms they provide. Logically, it goes without saying that they ordinarily should not be punished for whatever is posted by users given that they are merely intermediaries or messengers. Be that as it may, it is equally important to acquire media literacy education on the potential risks and available legal protection in our jurisdiction. Is there potential liability for social media intermediaries for what is posted by users at law? Having regards to the laws currently operating in Zimbabwe, below is a brief commentary addressing online platform liability.

Current Position
Presently there is no local legal framework for holding online networks liable for any illegal content posted on their platforms. For example, if User X posts illegal material on their social media pages the online intermediary used by X cannot be held liable for the illegal material that has been published. In reaching this position, the following legislative provisions which are capable of implicating liability were considered:

• The Constitution is the point of departure as it is the supreme law of the land and any law inconsistent with it is null and void to the extent of its inconsistency. Section 61 of the Constitution protects the right to freedom of expression and freedom of media which includes freedom to seek, receive and communicate idea and other information. The protection of one’s right to freedom of expression suggests that an intermediary and its user would be guided by the protection of this right. Even so, such freedom is not absolute and finds limitation in Section 61(5) excludes incitement to violence, hate speech, malicious injury to a person’s reputation and dignity and breach of right to privacy. Given that this is the supreme legislation, guidance on intermediary liability shall be sought in subsidiary legislation.

• The Freedom of Information Act [Chapter 10:33] is a follow up to the Constitutional right to freedom of expression but in terms of Sections 4-6, it is only applicable to request for information made to the public office holders or statutory office holder. Therefore, this Act is not applicable.

• The Broadcasting Act [Chapter 12:06] is applicable to all broadcasting services which are defined in section 2 as follows:

“any service which delivers television or radio programmes to persons having equipment appropriate for receiving that service, whether the delivery is effected by means of or uses the radiofrequency spectrum, cable, optical fibre, satellite or any other means or a combination of those means, and includes any of the services referred to in paragraphs (a) to ( j) of subsection (2) of section seven”

It is farfetched and difficult to attribute the above definition as one that an intermediary would fall under. Further, the Act does not define an online intermediary thus on this basis is not applicable.

• Lastly, the Postal and Telecommunications Act [Chapter 12:06] provides for the licensing and regulation of cellular telecoms, postal and telecommunication services. The definition of these are instructive and the Act is also silent on online intermediaries. Online intermediaries are not licenced service providers as envisioned by this Act and as such, is not governed by it.

On the Horizon
It is however worth highlighting that Zimbabwe has embarked on a transformative legal regime that may advance online platform liability and establish a safe harbour for users.

• The Cyber Security and Data Protection Bill, if promulgated, provides in Section 166 that an electronic communications network or access service provider shall not be criminally liable for not providing access or transmitting information through its system if the service provider has not
• Initiated transmission; or
• Selected the receiver of the transmission; or
• Selected or modified the information contained in the transmission.

Although an online intermediary may not be an access service provider, it potentially falls under the definition of “electronic communication network” provided for in Section 3 because it uses electronic communications infrastructures and facilities (network, servers etc) to allow users to share information on its platform in Zimbabwe and beyond. Consequently, online intermediaries may be held liable if the above criteria are fulfilled. It must be understood that this does not entail strict liability because the presence of intention on the part of the online intermediary is a requirement for liability to be placed.

Section 166 further provides for remedies available to an aggrieved party in case of illegal content being posted. The procedure to be followed is that the online intermediary must remove or disable the information upon the presentation of a court order or an order by any appropriate authority, which is POTRAZ in our case. Such an order requires compliance and failure to take down/block the unlawful information, the online intermediary risks criminal liability and penalties.