FCT HAS SUBSTITUTED TCRA’s DECISION AGAINST WATETEZI TV: “TCRA HAS NO POWERS TO IMPOSE FINES”

FCT HAS SUBSTITUTED TCRA’s DECISION AGAINST WATETEZI TV: “TCRA HAS NO POWERS TO IMPOSE FINES”

Dar es Salaam, Tanzania

The Fair Competition Tribunal (FCT) has delivered its judgement for the appeal filed by Watetezi TV against the decision of the TCRA Content Committee that was issued on 27th September 2019.

The Fair Competition Tribunal (FCT) has found that the TCRA Content Committe has no power to impose fines under Regulation 18 of the Electronic and Postal Communications (Online Content) Regulations, 2018.

The TCRA Content Committee had previously imposed a hefty fine of Five Million Tanzanian Shillings ( TZS 5, 000,000/-) against Watetezi TV for not making available to users the “Online Users Policy or Guidelines” contrary to Regulation 5(1)(c) of the Electronic and Postal Communications (Online Content) Regulations, 2018.

That decision was made by the TCRA Content Committee in accordance to Regulation 18 of the Electronic and Postal Communications (Online Content) Regulations, 2018.

Watetezi TV being aggrieved by that decision, filed an appeal before the Fair Competition Tribunal (FCT) on three grounds;

• One, that the TCRA Content Committee erred in law by relying on a wrong provision of the law to reach its decision.

• Two, the TCRA Content Committee acted beyond its powers and

• Three, that the TCRA Content Committee erred in law by convicting the entity which does not exist.

Dr. Mwenegoha, a member of the FCT when reading the judgement agreed with the first ground of appeal that, the TCRA Content Committee reached its decision basing on a wrong provision. That Regulation 18 does not give powers to Regulatory Bodies such as the Content Committee to impose fines. It was wrong to impose a fine basing on Regulation 18 because such a Regulation is applicable only where there is a conviction. Conviction powers are within the mandate of the court of law only. Therefore, the TCRA Content Committe has no power to convict a person.

However, Dr. Mwenegoha when delivering the FCT decision further said, Watetezi TV at the material time did contravene Regulation 5(1)(c) of the Electronic and Postal Communications (Online Content) Regulations, 2018 by not making available the online policy or guidelines to users.

Therefore, the FCT has reached a decision of setting aside the decision of the TCRA Content Committe and substituting it to Three Million Tanzanian Shillings (3,000,000/-) under Section 44 (2)(b) of the TCRA Act.

The other two grounds of appeal were partially allowed and disallowed.

On 25th September 2019, Watetezi TV was summoned by the TCRA Content Committee on account of not making available to users the “Online Users Policy or Guidelines” contrary to Regulation 5(1)(c) of the Electronic and Postal Communications (Online Content) Regulations, 2018.

Regulation 5(1)(c) reads that, “an online content provider shall have the obligation to establish online policy or guideline and make it available to users”.

The FCT decision delivered today has shaded more light that the TCRA Content Committee imposed a heavy fine to Watetezi TV contrary to the law.

Regulation 18 is only applicable where there is a conviction. Only the court has power to convict a person upon proof and not Regulatory Bodies like the TCRA Content Committee.

The FCT has directed that the proper provision of the law to be employed is section 44(2)(b) of the TCRA Act. However, section 44 also lacks the ingredients to be considered before imposing a fine.

The FCT decision issued today regarding the appeal of Watetezi TV has shade more light among online media operators to defend their rights. Also it has informed the public that, the TCRA Content Committee has no power to impose fines basing on Regulation 18.

Therefore, any fine that had been imposed by the TCRA Content Committe basing under Regulation 18 was wrong and deserves to be challenged before the competent authorities like the Fair Competition Tribunal (FCT).

Moreover, today’s decision by the FCT was an alarm to law makers to effect neccessary amendements to the Electronic and Postal Communications (Online Content) Regulations, 2018.

Following the FCT decision delivered today, THRDC will conduct a litigation surgery regarding the decision issued for further legal action at the Court of Appeal of Tanzania or not.

Advocates: Benedict Ishabakaki, Bertha Nanyaro and Rayson Elijah Luka from Victory Attorneys & Consultants defended Watetezi TV during the appeal at the Fair Competition Tribunal (FCT).

Issued by:
Tanzania Human Rights Defenders Coalition (THRDC)
On

May 4th, 2020



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