IN THE HIGH COURT OF MALAWI
COMMERCIAL CASE NUMBER 54 OF 2011
ALICK KIMU PLAINTIFF
ACCESS MALAWI LIMITED 1ST DEFENDANT
AIRTEL MALAWI LIMITED 2ND DEFENDANT
MALAWI TELECOMMUNICATIONS LIMITED 3RD DEFENDANT
TELECOM NETWORKS MALAWI LIMITED 4TH DEFENDANT
CORAM: THE HONORABLE MR. JUSTICE L P CHIKOPA
Kasambara Mr. of Counsel for the Plaintiff
Likongwe Mr. of Counsel for the Defendants
Njala, Court Clerk
The defendants are all licensed telecommunications services providers in Malawi. They are licensed under the Communications Act of 1998 [the Act]. The Malawi Communications Regulatory Authority [MACRA] on the other hand is the industry regulator. It operates within the four walls of the Act. The plaintiff is a subscriber to all service providers. His relationship with them is primarily governed by a service contract signed by the plaintiff with each of the four service providers. The service contracts are virtually identical. Of significance for purposes of this case is a clause common to all contracts that guarantees the privacy and confidentiality of customers’ [including the plaintiff’s] communication activities. Such confidentiality and privacy is also a feature of the defendants’ operators’ licenses. See Clause 16 of the operator’s license for ACCESS MALAWI LTD, clause 22 for TELECOM NETWORKS MALAWI LTD, clause 15 for MALAWI TELECOMUNICATIONS LTD, clause 14 for AIRTEL MALAWI LTD. The clause runs as follows:
‘the Licensee shall not monitor or disclose the contents of any communication conveyed as part of a public telecommunications service except:
a. to the extent necessary for the purpose of maintaining or repairing any part of the network used to provide the service or monitoring the Licensee’s quality of service;
b. when requested to do so by a person authorized by law or by an order of the court;
c. if so requested by a competent authority for the maintenance of national authority.
In between April 2009 and September 2010 MACRA procured a Consolidated ICT Regulatory Management System [CIRMS]. The system was according to a bid document issued by MACRA to have inter alia the capacity for:
a. lawful interception;
b. internet interception;
c. GSM and CDMA, GPRS interception; and
d. Equipment identity registry.
After commissioning the CIRMS MACRA requested from the defendants various detailed information. Such information is contained in exhibits SC 11a and 11b in the affidavit of Saulos Chilima. The defendants were, to be fair to them, reluctant to comply with the requests. They thought compliance would compromise the confidentiality and privacy of their subscribers apart from breaching constitutional guarantees of privacy. After various exchanges between the defendants and MACRA the defendants let it be known to their subscribers, of which the plaintiff is one that they could:
‘no longer be in a position to safeguard the privacy and confidentiality of customers’ communication activities, as we understand it to be our obligation under our respective operating licenses, subscriber contracts, the Communications Act and the Constitution of the Republic of Malawi’. [Sic]
See exhibit AK1 in the Plaintiff’s affidavit.
By Originating Summons dated October 18, 2011 and in obvious reaction to the above communication, the plaintiff brought this action against the defendants seeking three orders and two declarations against the defendants. If we may the same were styled as follows:
i. A declaration that the plaintiff is entitled to have his right to privacy safeguarded by the defendants under the Constitution of Malawi and the defendant’s individual telecommunications licenses;
ii. A declaration that the defendant will be in breach of or violating the plaintiff’s right to privacy if they were to comply with the directive from Malawi Communications Authority [MACRA] that they surrender to MACRA their subscribers’ [including the plaintiff’s] call details records;
iii. An injunction restraining the defendants from furnishing to MACRA all its subscribers’ [including the plaintiff] call details records;
iv. An order of costs against the defendant
v. Any order of the Court. [Sic]
Contemporaneous with the Originating Summons the plaintiff sought and was granted an interlocutory injunction restraining the defendants by themselves, their staff or employees and/or agents or otherwise howsoever ‘from furnishing their subscribers’ call detail records[CDRs] to Malawi Communications Regulatory Authority[MACRA] or any other person without any court order or in compliance with a specific Act of Parliament other than the Communications Act till the determination of this matter or until further of this Court’ [Sic]
The injunction thereby granted was to subsist until the substantial issues herein were determined to finality or until a further order of the court.
This is a civil matter. The rule of thumb therefore is that he who alleges must prove their allegation on a balance of probabilities. We think we should refer to the rest of the law applicable herein as we deal with the issues raised herein.
THE ISSUES AND A DISCUSSION THEREOF
The genesis of this action, it is obvious, is the introduction in the Malawi telecommunications industry of the CIRMS machine. What the plaintiff rather carelessly called ‘the spy machine’. The CIRMS machine according to the bid document and exhibits AK1, SC 11(a) and (b) will enable MACRA obtain ‘real time call related data from telecommunications services providers’. Such data, called call detail records [CDR], includes information about who called which number; details of calls received; time and duration of calls; location where call was made or received; SMS sent and received; type of handset used and other detailed subscriber information. MACRA has now requested for such information from the defendants. The defendants feel they cannot comply with such new data requirements without compromising their subscribers’ right to privacy as provided for under their subscriber contracts, operating licenses, the Act and the Constitution of the Republic of Malawi. They do not strictly speaking oppose this matter. Rather they ask the Court to give them some kind of direction on how to proceed in view of their obligations to MACRA the industry regulator and their subscribers’ one of whom is the plaintiff. That is why they felt obliged to inform their subscribers that they could no longer guarantee subscriber privacy which in turn resulted in the present action whereby the plaintiff action seeks to enforce compliance with his right to privacy via the above set out orders and declarations.
In our judgment this matter revolves around two questions namely:
i. Whether the plaintiff has the right to have his right to privacy safeguarded by the defendants under both the Constitution of Malawi and the defendants’ individual telecommunications licenses; and
ii. Whether the defendants will be in breach of or in violation of the plaintiff’s right to privacy if they complied with the directive from MACRA that the defendants surrenders their subcsribers’ CDRs.
Depending on the answers to the above questions we may have to decide on what reliefs to extend to the plaintiff. In putting the case as above we want to emphasize the point that this case is not about the propriety of having the CIRMS machine/system. That issue we understand is in another court. This is about the propriety of the defendants providing the information gathered by the defendants via the CIRMS to MACRA.
Whether The Plaintiff Has The Right To Have His Right To Privacy Safeguarded By The Defendants Under The Constitution Of Malawi And The Defendants’ Individual Telecommunications Licenses
The defendants agree that the plaintiff does have such right. We cannot agree more. Whether or not the defendants live up to such obligation is a completely different matter but fortunately the subject of our next question.
Whether The Defendant Will Be In Breach Of Or In Violation Of The Plaintiff’s Fright To Privacy If They Complied With The Directive From MACRA That They Surrender Their Subscribers’ CDRs
The right to privacy is set out in section 21 of our Constitution. Simply put every person has the right to privacy. That right includes the right not to be subject to interference with private communications including mail and all forms of telecommunications. We have no doubt that this right is incorporated into the defendants’ licenses hence the reference in all of them to confidentiality and privacy. Having said so it is also our understanding of the law that this right is not absolute. It is limitable. The Constitution itself appreciates that fact for in section 44(1) and (2) it provides for instances in which the right can be limited. For the record the right can be limited if the limitation is prescribed by law, is reasonable, is recognized by international human rights standard and is necessary in open and democratic society. In the case of Maggie Kaunda v R we had occasion to discuss limitations. We debated not just the above provisions but also the proportionality principle namely that the limitation should be proportional to the good sought to be achieved by limiting a constitutionally guaranteed right. We also said therein that it is for the one seeking to insist on a right to establish the makings of a breach. It will then be for the one seeking to limit to show on a balance of probabilities that the limitation is one permitted under section 44(1) and (2) abovementioned. The standard for the former instance is of course slightly lower than on a balance of probabilities. In the instant we need to ask and answer the question whether the provision of CDRs equals a breach of one’s right to privacy. The answer is in the positive. As we have shown the CDRs include information about who called who, time and duration of such calls, location where calls were made from, SMSs sent and received and the identity of handsets used. That is private information which should only be disclosed at the discretion of the owner thereof. Any unauthorized access thereto is on the face of it a limitation and/or erosion of the right to privacy. The question being whether such limitation is saved by section 44 above-mentioned. The reason advanced by the defendants is that they are obliged to make available such information following a directive from MACRA the industry regulator. Our quick response is that a limitation does not become legal merely because it came from MACRA indeed any regulator. It is because it complies with the test set out in section 44 abovementioned. Does it? The answer is in the negative. No legislation has been pointed out which allows the defendant to limit the right. There was mention of the confidentiality and privacy clauses in the license which we have referred to above. We do not think they are of much help. The test still remains that which is in section 44. We also do not think that the proposed limitation is one that can be said to be reasonable or necessary in an open and democratic society or recognized by international human rights law. International human rights law and reasonable or open and democratic societies have no business knowing who is phoning who from where for how long and on what handsets. That actually seems to be more of an indication of a closed and undemocratic society. If as seems to be suggested by the confidentiality clauses the issue is about national security, the need to repair or maintain the network or law enforcement we do not think that the way forward is a blanket directive that lays bare every subscriber’s call records. It is to deal with each instance on a case by case basis. That is actually envisaged under the license itself. It permits access to such information on application to a court of law and on showing good cause. Allowing blanket access appears to us to therefore not only to be unnecessary in the circumstances but to be in breach of the proportionality test as well. It would allow access to even those persons that are clearly not in conflict with the law. It also gives rise to concerns about possible abuse of such information by the regulator. In complying with the directive the defendants will be in breach of the plaintiff’s right to privacy. That is obvious if we put side by side the information requested by MACRA and the plaintiff’s right to privacy as provided for under the Constitution, the Act, the license and the subscriber contract.
If the defendants complied with the directive from MACRA they would in our view be in breach of the plaintiff’s right to privacy as provided for under the Constitution, the Act and the licenses. The directive is incapable of being saved by section 44.
The plaintiff sought two declarations and an injunction. The first declaration was to the effect that he is entitled to having his right to privacy safeguarded by the defendants under the Constitution the Act and the operating licenses. That is granted. As we have seen above the defendants did not object to the grant of such declaration. Secondly the plaintiff sought a declaration that compliance with the MACRA directive would in the circumstances of this case be a breach of his right to privacy. That is grated as well. The reasons are given hereinabove. The plaintiff also sought an injunction restraining the defendants from furnishing MACRA with CDRs as set out in exhibit SC 11(a) and (b). That is also granted. Meaning that the interim injunction granted herein is made permanent.
The plaintiff’s prayed that they be awarded the costs herein. The defendants thought each party should pay its own way. Why because they thought they were as much a victim herein as say the plaintiff. But for MACRA’s directive they would not be here. One can be sympathetic with the defendants. But not too much in our view. If they were put in this situation by MACRA and wanted a way out what stopped them from approaching the courts and seeking directions on the way forward. It would then be understood if they asked that MACRA pays the costs or that each party pays its own way. In the instant case they let the defendant literally drag them to court. They should pay the plaintiff having succeeded. It was also suggested that we should order that MACRA pay the costs herein. Maybe we should. But we do not want to condemn MACRA unheard. And we do not want to adjourn this matter just for the sake of hearing MACRA about the costs. If the defendant feels that strongly about the costs there is nothing to stop them from separately seeking indemnity from MACRA. The defendants will meet the plaintiff’s costs herein the same to be taxed if not agreed.
Dated this May 2, 2012 at Lilongwe.
L P Chikopa