News released by Aljazeera dated June 14, 2012 has reported that ‘A new law in Ethiopia has criminalized the use of VOIP (Voice Over Internet Protocol) services such as Skype. Users could face up to 15 years of jail time.’ Following this, many other news agencies, both local and international, have repeated such an assertion. This created havoc and confusion among members of the ordinary public who make use of VOIP services including Skype, GoogleTalk, Yahoo Messenger, ViaTalk, Vonage, Packet 8, SunRocket, Viber and many other applications for personal use and communication.
Let us review the Draft Proclamation on Telecom Fraud Offences (‘new Telecom Draft law’) (as available on the Internet), and assess from a legal perspective whether this new Telecom draft law criminalizes the use of Skype and other VOIP services for personal utilization. So, is the personal use of such services on ones’ electronic device a crime?
It is the authors’ view that the term ‘personal use’ refers to use that an individual makes out of a product or service for his/her personal enjoyment without the involvement of a third party. ‘Providing service’ on the contrary entails the presence of a third party obtaining such service from a provider. Article 10 (3) of the New Telecom Draft law stipulates:
‘Whosoever provides telephone call or fax services through the Internet commits an offence and shall be punishable with rigorous imprisonment from 3 to 8 years and with fine equal to five times the revenue estimated to have been earned by him during the period of time he provided the service’.
Article 10 (3) is criminalizing the act of providing telephone call or fax services using the Internet. This provision singles out those ‘providing’ such service for the sake of monetary benefits or as part of a business endeavor. However, the literal reading of same provision cannot be translated to categorically criminalize individuals using Skype and other VOIP services for personal use. The Article further provides that the fine that will be imposed as part of the criminal punishment will equal five times of the revenue earned by the provider. This can only refer to individuals or juridical entities providing such services to others for profit. Subsequently, sub article 4 of the same provision criminalizes individuals who obtain such services provided by others.
Any extension of this provision to criminalize ordinary personal use of services such as Skype will amount to creating a criminal offence by analogy, which is prohibited in the FDRE Constitution and Criminal Code. The principle of legality under Article 2 (2) & (3) of the FDRE Criminal Code stipulates:
‘The Court may not treat as a crime and punish any act or omission which is not prohibited by law. The Court may not impose penalties or measures other than those prescribed by law. The Court may not create crimes by analogy’.
Simply put, this fundamental principle is saying that one can only be said to have committed a crime and consequently be subject to punishment if and only if the specific act charged has actually been prohibited by law. In other words, there are not offences other than those which are expressly provided for by law.
All criminal offences and punishments introduced in the new Telecom draft law should thus be read in light of the pertinent fundamental principles. It is quite evident that Article 2 (1) of the new Telecom Draft law defines the term ‘telecommunication service’ in a very broad manner so as to include almost everything under the Sun. However, such broad definitions by themselves do not create criminal offences.
We further reflect our opinion based on the 2002 ‘License Directive for Resale and Tele center in Telecommunication Services’. The 2002 Licensing Directive (which has been in existence for the past 10 years) also provides under Article 13 (2) that ‘the use of Internet for sending voice or fax messages or the provision of such services is prohibited’. This provision again is not sufficient by itself to create a criminal offence by law; therefore, a cumulative reading with Article 14 of same Directive is mandatory. Under Article 14 fortunately, the provision that has the effect of criminalizing the prohibited act under Article 13, is only crafted so as to penalize people operating a business activity after getting a license from the appropriate Agency. Accordingly, Article 14 reads in sub article 1 that ‘The license of a licensee that violates… Article 13 of this Directive shall be revoked by the Agency’, and sub article 2 stipulates that ‘… a licensee that has violated Article 13 (2) of the Directive shall criminally be responsible…’.
Here again, the law is intended to address business people working under the Agency’s license. Accordingly, this 2002 Licensing Directive cannot be interpreted to criminalize the use of Skype for personal use.
This short overview is by no means a comprehensive analysis of the issue. There are many other provisions that could be discussed from the new Telecom Draft law and the Directive. But given the limited space available for the reflection, consider this our brief legal stand on the issue. This opinion does not establish any sort of client-attorney relationship with readers.
Bahakal Abate Yimer (LLM, LLM, LLB) firstname.lastname@example.org
Micael Sehul Micael (MLB, LLM, LLB) email@example.com