Fiji’s Online Safety Act: A ‘Trojan Horse’ for Internet Censorship

By: Jack Urban

In May 2018, the Republic of Fiji, led by Prime Minister Frank Bainimarama, passed into law landmark legislation geared toward creating a safe online environment free of cyberbullying, cyberstalking, trolling, fake news, harassment, and revenge porn. Despite this, the Online Safety Act (OSA) failed to get any opposition party member’s vote. Why? In truth, the OSA is an extension of a long history of government censorship of the media, as well as a long anticipated provision to broaden current policies from traditional media to social media. However, in order to understand why this is, one must first understand the history of the young republic, and it’s intimate relationship with media censorship.

With the passage of the Fiji Independence Order in 1970, Fiji officially transitioned from a British Colony to a Dominion. Following independence, sentiments grew among the iTaukei (native Fijian) minority that the government was dominated by Indo-Fijians (Fijians of Indian descent). These sentiments came to a head in 1987 wherein the first of many coups d’etat lead Ratu Sir Kamisese Mara, the father of independence and Indo-Fijian supported Prime Minister, to be deposed by iTaukei Lieutenant Colonel Sitiveni Rabuka. Shortly after, upon the Supreme Court of Fiji ruling the first coup d’etat unconstitutional, Rabuka assumed executive authority from Governor-General Penaia Ganilau and revoked the 1970 constitution. This lead the newly proclaimed republic to be expelled from the Commonwealth of Nations. 

Following these two coups d’etat came a time of mass emigration of Indo-Fijians, as well as the creation of the 1990 Constitution, which stipulated that the Office of the President, the Prime Minister, and two thirds of the Senate would be reserved for iTaukei citizens. However, Prime Minister Rabuka eventually helped to bring about the more equitable 1997 constitution, allowing the nation to rejoin the Commonwealth. Unfortunately, this move toward greater equality also spurned the coup d’etat of 2000.

On May 19, 2000, an iTaukei nationalist group entered Parliament to hold Mahendra Chaudhry, Fiji’s first Indo-Fijian Prime Minister, hostage. This eventually lead then President Kamisese Mara to resign, thereby allowing an interim government to be set up by Commodore Josaia Voreqe “Frank” Bainimarama, who subsequently appointed Ratu Josefa Iloilo as interim President. After Bainimarama’s negotiation of the release of the hostages, the High Court reinstated the government, leading Mara to immediately re-resign and Iloilo to keep ruling. However, the aforementioned governmental instability, due to ethnic divisions, only gained a temporary stay from the coup. 

In late 2005 and early 2006 tensions between the government and the military reignited with the proposal of amnesty by the government for people associated with the 2000 coup d’etat. Initiated by the diverse and colorful accusations of Bainimarama, accusing the government of a “disrespect for the law,” then Prime Minister Laisenia Qarase escalated the conflict by claiming Bainimarama’s statements to be “unconstitutional.” Eventually an ultimatum was issued by Bainimarama who, despite Qarase conceding to many of the demands, took control of the government after its deadline passed. Following this coup, Bainimarama consolidated power over the police, and was appointed interim Prime Minister of the newly created 2007 parliament by Iloilo. 

What made this coup d’etat distinct from the previous coups was the complete lack of significant protests or violence over the 5 month period, with some attributing this to a growing nihilism among Fijians in regards to their government; however, it can be better understood as a growing trust in Commodore Bainimarama as a vanguard for the people, in conjunction with increased media control by the Bainimarama. During the coup, Bainimarama closed down key media outlets, claiming that “things will operate as normal.” Moreover, Bainimarama told citizens “not to be intimidated or scared,” asking that they “cooperate and bear with the inconvenience,” as they “work towards putting in place a government that stands for all citizens of [Fiji].” This stood as a stark contrast to Qarase’s statement that “we cannot allow the government to break the law,” when asked about using extra-constitutional actions to counter the coup. Ultimately, military threats were made to several news publications and services, scripts were scrutinized, and organizations were asked to refrain from publishing any “propaganda” or reference to the “deposed government.” Indeed, it was this coup that commenced the Fijian government’s close relationship with media suppression.

In 2010, the government continued along this theme, bringing about the 2010 Media Decree, the first of its kind in the South Pacific. Following the dismissal of much of the country’s judiciary as well as the suspension of the constitution in 2009, this decree brought about an end to media self-regulation, a stipulation that all media must be 90% locally owned, mandatory bylining, as well as other restrictions on media. Though Bainimarama claimed that the law would ensure more balanced reporting on the country’s affairs, the international community disagreed. Amnesty International’s Pacific Researcher Apolosi Bose stated that the decree was “the Fijian government … giving itself a license to imprison or bankrupt its critics,” while continuing to claim that the decree’s vague wording, specifically the use of the terms “national interest” and “public order,” will be used against peaceful critics of the government. Moreover, Bose’s claims are widely believed, largely due to the fact that Bainimarama himself said that he hoped the decree would “change [the] mindset” of opponents in support of the national interest. However, out of all the restrictions introduced in the 2010 Media Decree, it was the creation of the Media Industry Development Authority of Fiji (MIDA) that was the most consequential in stifling media freedom within the country.

Set up by the Fijian government, some of the goals of MIDA are to facilitate media services which “serve the national interest,” and “ensure that nothing is included in the content of any media service which is against public interest or order, … or which offends against good taste or decency and creates communal discord.” Additionally, as if these services were not vague enough, MIDA specifically states that they answer to “the Authority” rather than any specific section of the government. Thus, it is clear that this organizations one purpose is to be the mechanism through which the government can stifle criticism and consolidate their control over information.

Through these apparatuses, the Fijian government committed many human rights abuses. For example, though the constitution provides for the right to the freedom of expression, including the press, those rights can be regulated under the “prevention of hate speech and insurrection,” “maintaining national security, public order, public safety, [and] public morality,” “protecting the reputation, privacy, dignity, and rights of other persons,” and “enforcing media standards and regulating the conduct of media organizations.” Additionally, the government can detain persons on suspicion of “endangering public safety” and “[preserving] the peace.” In conjunction, the government has defined sedition and terrorism loosely, and has often used all the aforementioned loose definitions as ways to stifle and suppress media. However, despite all of this, before the OSA, internet freedom was up to international standards.

In regards to direct media censorship, the government is actively involved. For example, the 2010 Media Decree allows for two-year jail sentences and $100,000 FJD fines for publishing anything that MIDA deems threatening to “public interest or order.” Separately, the Television Amendment Decree of 2012 has been used to threaten Fiji TV in the way of revoking their license if they broadcast anything perceived as “anti-government.” Additionally, from 2006-2014 Bainimarama’s military acting government arrested, arbitrarily detained, imposed fines on journalists, and deported foreign journalists, leading the Committee to Protect Journalists to call on Fiji authorities to drop sedition charges against the Fiji Times and many of their employees. 

It is this very intimidation and gross disregard for human rights that perhaps created the government’s most potent weapon in media suppression: self-censorship. Since the media decrees, there has been a culture of self-censorship present in reporting. In attempts to dodge fines, coincided by mistrust within the media industry and an atmosphere of suspicion among colleagues in rival organizations, most media outlets and journalists have elected to comply with strict government standards rather than fight injustice. Additionally, the Fiji Times, one of few organizations that have largely refused to be comply with strict government standards, has been dogged by fines for years.

In contrast to the aforementioned, though the government has been decidedly effective in censoring traditional media within Fiji, they have largely left the internet and social media alone. Over the years, social media has served to empower citizens to voice their opinions and participate in the political process, rarely with any consequence for the opinions they voiced. Moreover, social media has even served to legitimize the government as it made it easier for citizens to interact with their elected officials. This has been important for the youth of Fiji who, in the face of tight control over traditional media, have gone online in search of alternative news sources. However, all of that changed with the passage of the OSA.

Fiji’s OSA took effect in January of 2019, being passed in May of 2018. The OSA rode a global wave of concern over growing issues in cybersecurity, fake news, internet harassment, and revenge porn, and in that way is consistent with many other countries that are passing internet restriction laws. Supporters of the OSA hail it as a victory for women, and a strike against online harassers and trolls, with the Fiji Sun reporting that the OSA “will protect Fijians from being victimized on social media as is rampant today,” though more importantly noting that “it will make online users think twice before they post things online,”: a statement whose double meaning we now understand. 

However, though these protections are greatly needed in a society increasingly losing control over the internet, this well-meaning attempt to protect people is instead being seen as a Trojan Horse: the government seeking to co-opt those concerns as a way to extend censorship to social media. With approximately 500,000 online users, the government has become aware of a massive loophole in their information control campaign, and is presently seeking to mitigate their mistake. The opposition in Fiji not only claims that the OSA will undermine democracy, but one of their lawmakers, Litia Qionibaravi, believes the new law “has unnecessarily instilled more fear in our people.” More specifically, the OSA will extend the current culture of self-censorship to the internet. 

In addition, the opposition isn’t the only one calling into question the goal of the OSA. Bernadette Carreon, the Chair of the Pacific Freedom Forum, questioned whether the law was really about online safety, or purely regulation, while Anne Dunn, Commissioner for Online Safety, summarized the law by saying “if you have nothing nice to say, don’t say anything at all.”

Ultimately, critics find a few sections of the law to be specifically troubling. First, Part 4 of the law allows for the arbitrary intimidation of internet users, allowing for 5-7 years in prison or significant fines for the “[post of an] electronic communication with the intention to cause harm to an individual,” in Clause 24(1)(a) and Clause 24(2)(a-b). Additionally, there is a wide recognition that “causing harm” is too broad of a term, and can be interpreted to allow for any dissenting opinion to be classified as illegal content. Jope Tara, a PhD Candidate at the University of the South Pacific, found that the law seemed to mimic and repeat sections of laws that already exist, further exacerbating concerns of a Trojan Horse. Moreover, he thought that some clauses “raised concerns on [their] possible threat to free speech,” such as the creation of the Online Safety Commission in Clause 6. Even local youth entered into the parliamentary discussions on the bill, submitting a statement that said, “We are concerned that this bill is too widely drafted, that it can be misused by those in authority to punish and prosecute those … who do not share the same political views i.e. it can be misused to prosecute political opponents.”

Overall, the OSA has good intentions and includes internet restrictions that we may even see widely adopted by the world over the coming decades. However, we must not for one second believe that is the full intent behind the bill. The Republic of Fiji has a complicated and fraught history over its short existence. With many coups d’etat including a wide host of recurring characters, the citizens of Fiji have not yet known what a successful democratic state can look like. Thus, how can we blame people for self-censoring when there is a government in place that has so successfully and thematically stifled media through intimidation and strict consequences. Instead, we must look to the future, and the confidence that has been installed in the youth through the internet and social media, and use international structures to pressure Bainimarama and his government to rollback restrictions on traditional and social media.