A new report published by advocacy group Internet Without Borders says that telecoms companies operating in Europe and Africa are affording their users different digital rights. The study compares Orange and Vodafone’s subsidiaries to ask whether users in Senegal and Kenya are given the same right to access, use and create digital media as well as access and use devices and networks. The research provides a detailed assessment of respect for freedom of expression and privacy, concluding that users in Europe are treated differently to those in sub-Saharan Africa. Spotlight on Africa spoke to Julie Owono, Executive Director, Internet Without Borders…

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Update Orange and its Senegalese subsidiary Sonatel have since responded to some of the questions raised in this piece.

Spotlight on Africa: Telecom firms giving Africans less digital rights than Europeans

Why did you decide to carry out this study?

These operators, specifically Orange and Vodafone, have quite good records in terms of the freedom of expression of users and privacy. We were wondering if these two telecommunication operators perform the same way in sub-Saharan Africa. Unfortunately, we found that there were important differences on how these two companies behave when they are in Europe, in the EU, and when they are in sub-Saharan Africa.

Starting with pre-paid mobile services because these are some of the most popular on the continent – do you think users get the same terms and conditions in Senegal and Kenya as in Europe?

The terms and conditions is basically the contract which is signed between the operator and the user. It’s also a document where the user will have better understanding of what he or she can do on the operator’s network - information on when and why the network might be cut off for technical or other reasons. But unfortunately, we found two things – in the case of Orange in Senegal, we found that these terms and conditions are missing. They are not published on the website and it's worrying because the obligation to inform the user is a basic contractual obligation. The user has to know what he or she can do on the network of the operator. By not publishing such terms and conditions, Orange Senegal places itself in a very uncomfortable position, where we don’t know if Orange Senegal receives an illegal order, for instance to shut down the internet, we don’t know how the operator will respond to that order received from the government. In the case of Safaricom in Kenya, although the terms and conditions are published, unfortunately they are not very clear. Clear, meaning they are not accessible to the user; the language used might be perceived as very legal. The terms are not put in a very simple way for a basic user to understand. Most importantly, they are not very precise especially on issues of network interruption. We only know that the operator reserves the right to shut down the network whenever the operator finds it necessary to do so, but we don’t know why it may be necessary for the operator to shut down the network.

You’re saying that the terms and conditions in Senegal and Kenya allow the network operators to shut down the internet whenever they want?

It leaves space for very worrying practices which we can be seen on the continent. It’s not science fiction to fear that a shutdown might happen because shutdowns have happened in several countries in sub-Saharan Africa whether it is in west or east Africa. So that’s why we’re particularly worried that these two major operators in these two major countries - which are considered as democracies compared to many other countries – its worrying that the rule of law is not clear. We hope that as leaders they will drive the market up, as they are leaders, they will show the way to others – other operators and other countries. That’s something that we think is very important for the sub-Saharan Africa market.

Another area you focus on is privacy, whether these companies respect users’ personal data. What did you discover here?

Again we discovered that Orange in Senegal does not publish a privacy policy on its website. So it’s very important to publish a privacy policy because in a privacy policy a user can know what data of his or hers is collected by the operator. With whom is it shared, which third party has access to this data, whether it is government, whether it is other companies. The user has a right to know and this is not an obligation that was made up by Internet Without Borders. It’s an obligation that exists even under Senegalese law. There’s a law on personal data which was adopted by the country and which created a commission to protect personal data.

Does that mean that the operator in Senegal could, for example, be compiling lists of the telephone numbers that you dial and selling those lists on?

It’s possible. We’ve received complaints – of course, we’re not a judicial body. But we’ve received complaints from users, from citizens who tells us that they’ve received SMS messages that they’ve never asked for before. We don’t know, we’re asking – it would be important to publish that privacy policy in order for the operator to explain that it is taking all the necessary measures to protect the personal data of its users. By publishing the privacy policy, it would also allow the users to know how they are protected, who has access to these servers. We talk about cyber security and cyber criminality in Africa at the moment – so it’s also important, not only to talk about the criminals, but also to talk about steps that are taken to prevent criminals from entering servers. Publishing the privacy policy is very important and we’ve seen that in the case of Safaricom. We’ve worked in Kenya with an association, International Association of Women in Radio and Television, a group of journalists in Kenya, who are particularly interested in gender-based violence committed through digital services or digital platforms. In one of their reports, they’ve highlighted cases of women who were harassed by former spouses or after any sort of relationship, and didn’t understand how their data, their new data, their new numbers, got into the hands of their former spouse. So, these are questions that we’ve asked Safaricom – in reality, it can translate into very disturbing situations for particular people.

Why do you think that these companies that operate both in Europe and in Africa treat their respective users so differently, according to what you say?

The first factor is the awareness of people, of citizens, of civil society, organisations such as ours, but also in sub-Saharan Africa. The idea that digital rights are human rights is very new - preserving freedom of expression online is as important as preserving it offline. So this is the work that organisations such as Internet Without Borders is trying to do – raising the awareness of other civil society organisations, raising the awareness of citizens on the importance of digital rights. The other elements which could explain such low performance could be that local legal environments may not be strong enough compared to the existing threats. Some of these laws may need to be updated.

If this is the case, then isn’t this the responsibility of the countries in which these companies operate, to ensure that they put in place laws that govern these areas and then force the companies to adhere to these laws.

This questions makes us think of a particular situation – in 2017 Orange Cameroon was one of the network operators which agreed to shut down the internet to English-speaking regions of Cameroon upon receiving an illegal order from the Cameroonian government. We asked them, ‘why did you agree to obey this order?’ and they responded that they were just obeying the law. Which is true, but also not quite true because indeed the first entity responsible for the protection of human rights is states. But there was a set of principles that were adapted by the UN in 2011 - a charter called the Guiding Principles on Business and Human Rights, which says governments have the responsibility to uphold and protect human rights. But companies, which have such important roles in our societies today, also have the responsibility to uphold these human rights. One of ways to apply this responsibility is to help the legal environment evolve whenever it’s not up-to-date compared to the international obligations of the states in terms of human rights, freedom of expression and privacy. That’s why we’re saying that it’s not enough to say that the government is responsibility for protecting human rights because we know that certain states have a problem with the rule of law. But we also think that other actors, such as civil society, but also companies, every layer of civil society, including the private sector, plays a role in protecting democracy and human rights. Sometimes the government is not able to protect these rights.

* Orange and its Senegalese subsidiary has since responded to some of the questions raised in this piece. In a statement, it said it would like to underline the following points:

All customers do in fact receive the terms & conditions for prepaid mobile offers on the day of their subscription to an Orange SIM card. Sonatel pays a particular attention to the selected sales points where SIM cards can be sold to ensure the strict respect of all necessary legal obligations. It should be noted that, given the current drive in Africa to ensure that SIM-card holders are correctly identified with an ID card and registered, these sales points are rigorously controlled.

In addition, the SIM distributors also sign a distribution contract with Sonatel in which they explicitly make the commitment to provide customers with the necessary terms & conditions documents.

These same terms & conditions for prepaid mobile offers are also available upon request in all sales points.

Sonatel respects the rights of its customers with regards to their personal data and makes all the necessary declarations to the relevant authority in Senegal, the CDP, with respect to the use of this data.

The terms and conditions for fixed-line / internet offers can be found on the company’s website at https://www.orange.sn/2/particuliers/1/3/orange-legal-285.html. The terms & conditions for prepaid mobile offers are not available on the website for the simple reason that it cannot be assumed at the present time in the Senegalese market that most mobile customers have access to the Web. The provision of documents in sales points, where all prepaid customers go to register or recharge their offers, is a certain method to reach all customers. [The report you mention in your questions tends to project European habits onto an African context without thinking about whether this is accurate].

Sonatel respects the laws and regulations in every country in which it operates. Whether or not a Senegalese operator respects French law is not really an appropriate question.

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