Prosecuting and Punishing Persons for Sending Messages of Obscene, Offensive, Threatening or Menacing Character under the Mauritian Information and Communication Technologies Act

Abstract

Jurisprudence from Mauritian courts shows that people have been convicted of offences under the Information and Communication Technologies Act. These offences have been mostly committed using mobile phones. The most common offences relate to making phone calls and sending text messages which are obscene, indecent, abusive, threatening, annoying, inconveniencing, menacing, false or misleading, or likely to cause distress or anxiety. Although in some cases people have been convicted of posting videos or audio on YouTube, Facebook, Viber and sending out emails. One of the challenges faced by courts is that many words in section 46 of the Act which creates offences are not defined and courts have to rely on dictionaries. It is argued that the constitutionality of section 46 could be challenged successfully. Another challenge is that the punishments provided for in the Act are not applicable to juristic persons. Recommendations to address those challenges are made here. The article also highlights how the police’s IT unit, the telephone companies, and the judiciary work together to ensure the availability of evidence needed to prosecute those who have allegedly committed an offence under the Act. It is argued that some of the offences under the Act are of strict liability nature and that Mauritian courts have no jurisdiction over offences under section 46 of the Act when committed abroad.