01 October 2020

Human rights groups respond to draft communications policy

originally published in the St Helena Sentinel Volume 9, Issue 27, Thursday 01 October 2020, p.11

A lack of experts used in drafting the policy; a lack of data protection; and the potential for human rights violations.
These are main concerns of two letters recently submitted to SHG, as part of the consultation process for the new Draft Communications, Networks & Services Policy.

The policy is meant to ready the island for the arrival of the Equiano fibre optic undersea cable and the changes that it might bring.
The two human rights groups that submitted the letters – the St Helena Equality & Human Rights Commission (EHRC) and A Human Right (a non-profit organisation dedicated to providing free basic internet and phone access to developing countries, and which worked with SHG to secure access to a submarine cable) – have also released their letters to the public.

The letters should soon be the subject of a meeting of the Economic Development Committee (EDC).
“All consultation points will be recorded, comments will be provided, and any recommended changes to the policy will be provided to the EDC to preside over,” the SHG Press Office told The Sentinel. “The recorded points and comments will be publically available, as this will be discussed in an EDC open session.”
So what should we look for the EDC to discuss, when the meeting occurs?


The EHRC starts its six-page letter by highlighting the good intentions of the draft policy in preparing St Helena for the “long-awaited and much-wanted Equiano cable.”
Specifically, the EHRC stated recognition of the importance of the policy in increasing internet access for less well-off community members. It noted the positive impact this could have for work and schooling opportunities and for upholding other human rights.

But the EHRC expressed concern that certain aspects of the draft policy could prevent the full benefits of the policy/cable.
“Where the EHRC is concerned is in the areas relating to surveillance and the line management of the Regulator.”
Specifically the EHRC expressed concern that people’s right to privacy might be violated, and that a conflict of interest in the Regulator could mean a lack of independent oversight.

Right to privacy

The EHRC details two reasons they are concerned that the human right to privacy could be violated if the draft policy is not changed.
The first reason is the amount of power granted to a sole individual, based upon vague grounds.
“The most concerning part of the policy is the power handed to a single individual to breach our right to privacy, i.e. the Governor. For example section 3.3.11 says the Governor acting at his or her discretion may require a retention notice.

“First of all no matter what the circumstances, there should be more than one person involved in a decision of this importance. The Governor is the Queen’s [representative] on-island; neither the Queen nor the Prime Minister have such powers in the UK.

“The public interest grounds are very vague and too open to misapplication to be useful.
“This section has the potential for major human rights abuses to take place and is unacceptable.”
The second reason is that without enacting data protection legislation alongside the policy, SHG could inhibit the island’s ability to benefit from the cable and could leave citizens’ and tourists’ personal data (recognised in international law as part of the right to privacy) at risk.

“Without data protection the internet becomes a very dangerous and complicated space to visit[...] safety is paramount when considering the type of data that can be so easily shared[...] New technologies that allow specialists doctors to monitor a patient’s health in real time, banking applications, university quality education from home are just a few examples of the benefits of internet based technology[...]
“St Helena is a safe and trusting place; we do not think twice about sharing information with each other. This will make us particularly vulnerable. The introduction of online banking has been a great step forward, but how safe will the information be once the cable arrives?[...]

“There is also the constant threat of online hacking and malicious software[...] On St Helena it is common to turn off security updates on our computers and phones because of the amount of data they can use without our consent and the costs involved. This already leaves a lot of devices open to attacks when high speed internet arrives.”

The EHRC also notes the EU’s GDPR (General Data Protection Regulations), which aims to protect citizens no matter where they or where their data is held; and to create an international standard for how personal data is protected and processed online.
“The GDPR allows EU citizens to challenge how and where their data is stored. Failure to fulfil these obligations can result in penalties as high as 20 million Euro, or 4 percent of national income[...]
“Anyone visiting the island, knowing St Helena is a UK territory, will expect a reasonable level of data protection. Especially when we [are] entrusted with an individual’s personal information, such as credit card numbers, passport information, home address, medical information and any other data required for stay on the island.”

The EHRC posed two specific questions to SHG within this section:
1) The Policy is to encourage the setting up of ground stations onisland, which begs the question what sort of organization would want to do that when there is no data protection legislation?
2) Section 3.3.2 needs clarification – is the data the Regulator can require only business information relating to the service provider [or] will the regulator have the power to require personal data on their customers?

The Regulator

In general, the EHRC said that having a regulator for the island’s communications could enhance and protect human rights.
The EHRC said however that the reporting line for the regulator presented conflict of interest and could undermine the accountability, transparency and other benefits of the arrangement.
“The EHRC is concerned about the reporting arrangements and the potential conflict of interest in the Attorney General acting as line manager and temporary Regulator. The Attorney General is the Government’s lawyer, there to advise Government but also to act as its advocate.”
The EHRC’s direct question to SHG was:
1) What if SHG wanted something and the Regulator wanted something which conflicted with that?

A Human Right

The letter from A Human Right is a 55-page document that deals not just with the draft policy but the wider implications of St Helena’s current state of telecommunications and its future with the cable project.
It states that St Helena currently has a rare opportunity to improve communications for the island.
“Due to the nearing end of the monopolist’s license St Helena has the once-in-a-decade opportunity to reform its telecoms landscape and bring much-needed change to unlock the many opportunities its EDF-sponsored submarine cable will offer.”

A Human Right says the draft policy in its current state would be detrimental to the cable’s potential.
“[The draft policy...] attempts to protect the status quo rather than bringing much needed reforms to St Helena to enable a digital transformation, thus hampers the many opportunities the submarine cable could unlock and risks islanders to remain excluded from global Information Society.”

The letter says the policy was clearly drafted without “true expert advice” and that it therefore “fails St Helenians, UK taxpayers who continue to fund St Helena and EU taxpayers who through the EDF are sponsoring the island’s submarine cable.”

“It is with great disappointment to read this Policy which[...] fails to explore alternatives to maintaining a private monopoly but strives to justify the same, undermines its very own principles and by this weakens SHG’s authority, underestimates the challenges of effective regulation and generally shows insufficient consideration of the many technical, economic and regulatory complexities of modern telecoms.
“We therefore urge SHG to seek true expert advice and follow our recommendations.”

The letter is split into six sections, with an overview of each provided below.

The importance of internet access

The first section of A Human Right’s letter covers the importance of accessible internet for St Helena.
“Broadband Internet is not a luxury, but a new form of digital literacy and mission-critical infrastructure for participation and progress in any twenty-first century society,” the letter says.
“To this day, St Helena has been largely locked out from the digital revolution due to the high cost, low performance and unreliability of Internet access.
“The digital divide between St Helena and the connected world will continue to expand rapidly if this issue is not addressed adequately and in a timely, balanced and well-coordinated manner.”
The letter emphasizes the importance of internet access for tourism, education, the economy and the island’s democracy.
“As a British Overseas Territory many decisions affecting St Helena, in such areas as defence, foreign affairs, use of currency and Brexit, are made by the UK parliament,” the response reads. “St Helenians are barely able to even form an opinion on current matters, a necessity for democratic participation, as they cannot adequately access UK media, much of which is published online only today.”

The monopoly

A Human Right’s letter is very critical of SHG’s current monopoly communications licence with SURE SA Ltd.
“There have been countless issues with the monopoly causing lasting frustration among islanders and hampering St Helena’s socio-economic development,” the letter says.

Christian Von Der Ropp, of A Human Right, in the letter said that St Helena gets charged “prohibitive and unfair tariffs” for internet packages, in comparison to other small islands.
“Compared to other small islands of similar size that also rely on satellite connectivity such as Norfolk Island and the Cook Islands, broadband subscriptions on St Helena are 1.9 to 74 times more expensive,” the letter says.
The letter is also critical of the current supervisory body not being independent – a concern similar to the EHRC’s concern that the regulator within the draft policy would also not be independent of SHG.

The letter also says that having a signed monopoly in place makes St Helena “dependent” on a single provider and that this creates “severe risks.”

“[It] grants excessive rights that enable the company to crowd out local businesses, hamper entrepreneurship in St Helena and exclude the poorest from accessing the internet.
“As St Helena has experienced repeatedly, the dependence on a single provider’s network[...] can lead to a total blackout of international communications,” the letter says.

“An even more concerning dependence results from the fact that according to St Helena’s Telecommunications Ordinance and the current license terms the monopolist is eligible to compensation for the fair value of its telecommunications assets including equipment, plant, apparatus and buildings, should its license be revoked or not be renewed.
“Given SHG’s financial constraints and the resulting difficulty to pay such compensation St Helena basically has no choice but to renew the monopoly.”

Misconceptions and misassumptions

The letter says parts of the draft policy are based on “misconceptions and misassumptions.”
For instance, the letter says it is a misassumptions within the policy that a monopoly is necessary for telecoms in St Helena.

The draft policy says that telecoms provision in St Helena is “well below minimum efficient scale due to market size” and that in “these conditions a single network operator is in a better position to dimension and plan the construction of the network[...] and to avoid duplications of investments in excess capacity. Thereby economies of scale can be fully utilised to benefit all customers.”
A Human Right’s letter describes these statements as “factually wrong assertions” and says that the policy “ignores that several similarly sized island nations including the British Overseas Territories of Montserrat and Anguilla as well as the Cook Islands and many remote communities across the developing world provide evidence that competition is viable even on a very small scale. Instead the Policy is quick to dismiss any such concept out of hand without any investigation.”

In almost every area, from fisheries to communications, SHG is currently attempting to remove public sector involvement and subsidy; but A Human Right’s letter argues that it is a misassumption that a public entity should not be involved in delivery of vital goods and services.
“While the Policy falls victim to a dogma that the private sector, and specifically a monopoly, can and will deliver any and all goods and services better than the public sector, the rest of the world has begun to re-evaluate this theory. Governments around the world are taking the lead on developing the digital infrastructure necessary to develop thriving 21st century economies just as they did with the electricity networks, roads, bridges, railroads, airports, and other vital economic infrastructure of the 20th century.
“They are doing so because in many cases, for-profit telecommunications corporations are unable and unwilling to equitably provide the necessary investment and service – leaving whole towns, regions, and socio-economic groups shut out of the modern economy and society. St Helena is an evident example of this issue.”

The letter also questioned the policy’s statements that “the market in St Helena is not yet mature enough to be able to support [a liberalization];” and that “it will take time for user habits to change when greater connectivity is available.”
The letter says the policy made these statements “without evidence[... and] ignoring the unprecedented surge of global internet traffic [as well as] the fact that so many islanders make use of the unlimited data allowance after midnight.
“We doubt that it would take time for users to change usage habits, but believe there is a huge unserved latent demand and that increased supply would immediately be embraced by St Helenian consumers.”

Regulating the monopoly

A Human Right was concerned that “it remains unclear how a Regulator would be able to independently measure Quality of Service and hence ensure compliance[...] Without adequate tools to continuously measure service quality[…] the Regulator obviously cannot ensure service quality.”
A Human Right further says that as a monopoly’s infrastructure is so critical to SHG, the regulator would “be inclined to avoid conflicts.”
“By underscoring seven times throughout the Policy that the regulatory burden on the licensee should be kept at a minimum, it already conveys a tendency towards lax oversight despite the many difficulties with the monopoly in the past,” A Human Right’s letter says. “This situation creates a moral hazard, where the monopolist has no incentive to comply with its license terms and the regulations since it knows the Regulator is hardly able to independently establish a breach, nor able to impose severe sanctions.”

High-speed broadband would be huge for education. Not only could we make better use of online materials, but with affordable broadband teachers could develop their practice from home.
I'm an IT engineer and I would love to return to my island to start an IT business, but because of the slow, expensive and unreliable internet connection this is simply impossible.
I had to leave St Helena to study. Being 5000 miles away from my family and friends is hard. Not being able to skype with them due to the slow and expensive internet on St Helena is even harder.
Socioeconomic status is now heavily reliant on broadband penetration. With the ever-growing importance of the internet, St Helena with its limited access is in danger of being left behind.