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LEGISLATION
[Intermediary liability of online service providers is specifically governed by the law on electronic messages, electronic signatures and electronic transactions. Other existing laws do not directly envisage liability of online intermediaries but provide criminal penalties for infringing intellectual property rights (e.g. copyright), violation of right to privacy, defamation etc.] Law No. 02/2013 Regulating Media, February 8, 2013 (published in Official Gazette No. 10 of March 11, 2013) [(1) Article 6 prohibits a journalist from publishing documents from legislative, executive or judicial powers with respect to confidentiality in the national security and national integrity; confidentiality of judicial proceedings, parliamentary sessions and cabinet deliberations in camera. (2) Article 7 prohibits media for children from acting as illustrations, story or opinion praising or promoting any malicious, indecent and delinquency acts that are likely to divert or demoralize them. (3) Article 9 provides that the freedom of opinions and information shall not jeopardize the general public order and good morals, individual’s right to honour and reputation in the public eye and to the right to inviolability of a person’s private life and family; the freedom shall also be recognized if it is not detrimental to the protection of children. (4) Article 21 provides that every individual, associations, public entities and organizations with legal personality shall have the right to request for correction, reply or rectification of an article or a story published in a media organ.] Law No. 18/2010 relating to Electronic Messages, Electronic Signatures and Electronic Transactions, March 12, 2010 (published in Official Gazette No. 20 of March 17, 2010) [(1) Article 8: Liability of communication network services - A communication network service shall not be liable in respect of contents of documents, electronic message through his/her network and another person to whom he/she has no control. The liability shall apply to: creation, publication and dissemination of electronic messages on the network; and, use of such electronic messages in a way that is contrary to the law. (2) Article 10: Further states an intermediary shall not be liable for providing access to information, transmission or its retention, as long as it: does not initiate the transmission; is not the one to select the addressee; uses automatic communication technology without its role; and, cannot modify the electronic information. (3) Article 11: Caching - An intermediary shall not be liable for the automatic, intermediate and temporary storage of that electronic record, in case the intention of such a storage of electronic record is its onward transmission to other recipients who requested for it, as long as the service provider: does not modify the electronic record; fulfills the conditions for access to the electronic record; complies with rules regarding the updating of the electronic message, specified in a manner widely recognized and used; does not interfere with the lawful use of technology, widely recognized and used by industry, to obtain information relating to the use of the electronic message; and, removes or disables access to the electronic message it has stored upon receiving a take-down notice. (4) Article 12: Hosting - An intermediary provides a service comprising the storage of electronic message shall not be liable for damages arising from information stored, as long as: it is not aware that the information or the activity relating to the information infringes any person; it is not aware of facts or circumstances from which the infringing activity or the infringing nature of the information is apparent; and, upon receipt of a take-down notification provided by this law acts expeditiously to remove or to disable access to the information.(5) Article 13 pprovides that an intermediary shall not be liable for damages incurred when it links its services with other different web sites containing electronic messages or activities that do not fulfill legal requirements, where: it is not aware that the information or activity relating to the information infringes any person; it is not aware of facts or circumstances of the infringing activity or the infringing nature of information; it does not receive a financial benefit directly attributable to the infringing activity; and, removes or disables access to the information relating to the electronic message within a reasonable time after being informed that such electronic message infringes the rights of a third party. (6) Article 14: Take-down notification - (a) The complaint shall notify, in writing, an unlawful activity to the intermediary or to the concerned service provider or its designated agent. The notification shall include: full names and address of the complainant; the written or electronic signature of the complainant; rights that have been infringed; Justification of the unlawful activity; the remedial action required to be taken in order to resolve the dispute; telephone and electronic mail contacts if any; a statement that the complainant is acting in good faith; and, a statement by the complainant that the information provided is true and correct. (b) Any person who notifies an unlawful activity to the service provider knowing that there is no truth contained therein as regards the facts commits an offence and is liable for damages for false notification. (c) An intermediary or a certification authority is not liable for a takedown in response to a wrongful notification. Law N° 31/2009 on the Protection of Intellectual Property (Articles 255-264), October 26, 2009 (published in Official Gazette No. 50 bis of December 14, 2009) (1) Article 261 provides that any industrial or commercial use of an invention, utility model, industrial design and model, mark or other distinctive sign of business, trade name, geographical indication or layout design integrated circuit, which is the subject of a protection title granted under this law and made by any person other than the owner of the title and without his/her consent, shall constitute an act of forgery.(2) Any infringement of copyrights or related rights protected under this law, committed willfully or by gross negligence, by any third person for profit-making purposes and without owner’s right consent shall constitute an act of forgery.(3) Any third person, who knowingly sells, offers on sale, is making rent, detains or introduces on the territory of the Republic of Rwanda, the alleged infringing goods for commercial purposes, shall be considered as committing the same offence.] Organic Law N° 01/2012/OL instituting the Penal Code, May 2, 2012 (published in Official Gazette No. Special of June 14, 2012) (1) Article 229 provides that any person who records a picture or the voice of a child or disseminates it in any way for pornographic purposes shall be liable to a term of imprisonment of more than five (5) years to seven (7) years and a fine of five million (5,000,000) to ten million (10,000,000) Rwandan francs. (2) Article 230 provides that any person who displays, sells, rents, disseminates or distributes pornographic pictures, objects, movies, photos, slides and other pornographic materials involving children shall be liable to a term of imprisonment of more than five (5) years to seven (7) years and a fine of five million (5,000,000) to twenty million (20,000,000) Rwandan francs. (3) Article 276 provides that any person who defames or harasses another person on the basis of sex with intent to humiliate him/her or his/her work shall be liable to a term of imprisonment of at least two (2) months but less than six (6) months and a fine of two hundred thousand (200,000) to five hundred thousand (500,000) Rwandan francs or one of these penalties. (4) Article 282 provides that any person who publishes, by any means, an unoriginal version of a person’s statements, spoken or pictures and photos without explicitly stating that it is an unoriginal version shall be liable to a term of imprisonment of six (6) months to one (1) year and a fine of one million (1,000,000) to five million (5,000,000) Rwandan francs or one of these penalties. (5) Article 285 provides that any person who, by use of any fraudulent means, opens, removes, delays or diverts correspondence or other written messages, whether or not they have arrived at their destination shall be liable to a term of imprisonment of one (1) year to two (2) years and a fine of one million (1,000,000) to three million (3,000.000) Rwandan francs or one of these penalties. (6) Article 286 provides that any person who gathers personal information or inserts and uses in computers and other specialized equipment personal information likely to adversely affect the dignity or the privacy of people shall be liable to a term of imprisonment of six (6) months to one (1) year and a fine of one million (1,000,000) to five million (5,000,000) Rwandan francs or one of these penalties. (7) Article 287 provides that any person who records voices, keeps records or uses other means to save in computers and other specialized equipment personal information likely to adversely affect the dignity or the privacy of people shall be liable to a term of imprisonment of six (6) months to one (1) year and a fine of one million (1,000,000) to five million (5,000,000) Rwandan francs or one of these penalties. If such information is made known to third parties who are not authorized to know it without consent of the concerned persons, the offender shall be liable to a term of imprisonment of six (6) months to one (1) year and a fine of five million (5,000,000) to ten million (10,000,000) Rwandan francs or one of these penalties. (8) Article 288 provides that any person who, maliciously and publicly, commits a specific act against another person which is likely to damage the honour or dignity, or bring him/her to public contempt shall be liable to a term of imprisonment of six (6) months to one (1) year and a fine of one million (1,000,000) to five million (5,000,000) Rwandan francs or one of these penalties. (9) Article 307 provides that any person who withdraws data stored or sent electronically or through any similar way, which is not meant for him/her, shall be liable to a term of imprisonment of two (2) years to five (5) years and a fine of five hundred thousand (500,000) to three million (3,000,000) Rwandan francs. (10) Article 308 provides that any person who, without authorisation, modifies or erases intentionally any recorded or transmitted data through computerised devices or any other similar systems, or makes it useless, shall be liable to a term of imprisonment of three (3) years to five (5) years and a fine of one million (1,000,000) to five million (5,000,000) Rwandan francs. (11) Article 309 provides that any person, with authorization to use data recorded or transmitted through computerised devices, or by any other similar systems, intentionally uses them in incorrect, incomplete or resorts to a comparable procedure and gets or hides the property or passes it on to any unauthorized person, shall be liable to a term of imprisonment of three (3) years to five (5) years and a fine of three million (3,000,000) to five million (5,000,000) Rwandan francs. Any person, without a right to utilize any data recorded or transmitted through computerised devices, or any other similar systems, who intentionally uses them in an incorrect or incomplete way and gets or hides the property or pass it to any unauthorized person, shall be liable to the penalties set forth in Paragraph One of this Article. (12) Article 311 provides that any person who makes, imports or exports software or any other comparable systems which enable him/her or other persons to fraudulently use information and communication technology, the secrecy of television or a communication network and uses them privately or disseminates them, shall be liable to a term of imprisonment of three (3) years to five (5) years and a fine of three million (3,000,000) to five million (5,000,000) Rwandan francs. In case of recidivism, the offender shall be liable to a term of imprisonment of six (6) years to eight (8) years and a fine of six million (6,000,000) to ten million (10,000,000) Rwandan francs. (13) Article 312 provides that any person who, fraudulently and in any way, accesses and remains in another person’s automated data processing system or similar systems with intent to find out electronically stored or transmitted data, regardless of the location, shall be liable to a term of imprisonment of one (1) year to three (3) years and a fine of one million (1,000,000) to three million (3,000,000) Rwandan francs. If the acts mentioned under Paragraph one of this Article delete or modify recorded or forwarded data, the offender shall be liable to a term of imprisonment of more than five (5) years to seven (7) years and a fine of two million (2,000,000) to six million (6,000,000) Rwandan francs. (14) Article 313 provides that any person who prevents or misguides the running of automated data processing system or other similar system of another person shall be liable to a term of imprisonment of six (6) months to two (2) years and a fine of one million (1,000,000) to three million (3,000,000) Rwandan francs. The offender shall be liable to a term of imprisonment of more than five (5) years to seven (7) years and a fine of one million (1,000,000) to five million (5,000,000) Rwandan francs, if the automated data processing system or any similar system belongs to a State organ or to any other organ. (15) Article 315 provides that legal action for the offences under Articles 312 and 313 of this Organic Law shall only be taken after a complaint of the offended person.]
BILLS AND PENDING PROPOSALS
[The ICT bill is under deliberation in the Parliament, but it is inaccessible due to legal restriction on unofficially published law.]
DECISIONS
[There are currently no known cases that have been brought before the courts on the issue of intermediary liability.]
OTHER RESOURCES
Supreme Court of Rwanda, http://www.judiciary.gov.rw/the-courts/ordinary-courts/supreme-court
CONTRIBUTORS
Fred K. NkusiEmail: frednkusi88 at gmail.com or nkusi_fred at yahoo.com[personal page]
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