Is Digicel PNG Ltd legally justified to send scribed advertisements/promotions via SMS?

By Peter Balos

1. Introduction

Digicel PNG Ltd (Digicel) is nowadays continuously sending scribed advertisements/promotions of various companies via Short Message Service (SMS). (I will use the word advertisement only in the subsequent discussions for brevity purposes). This raises very serious legal issues. I will highlight two but emphasize one.

2. Tax Laws

Firstly we are in doubt whether the scribed advertisements are taxed. We have little doubt that Digicel is charging the various companies that prefer this mode of advertisement. For Digicel, we presume it’s a means of generating income and if so there ought to be a separate head of tax. The real doubt is whether the Internal Revenue Commission’s (IRC) tax scheme that applies to Digicel captures this. If not, IRC needs to capture this in its imposition of tax on Digicel.

3. Infringement of Constitutional Right(s)

The real issue that I wish to discuss is the breach of our constitutional right by Digicel. In every instance, the law allows us to exercise our choices. No one is entitled by law to systematically deny our right to freedom of choice without any lawful excuse.

The right to freedom of choice is too broad and is not expressly enshrined in our Constitution. But that does not mean that the right to freedom of choice is absent or denied. In fact, it is the most fundamental right on which all other rights are founded upon. Life is nothing but choice. If we look at what we do ‘every moment’ whether it’s so simple or otherwise, it involves exercise of our choice. So far there is no instance in PNG that denies our right to freedom of choice except this instance where Digicel is sending uninvited and unwanted advertisement text messages which completely gives us no option to reject. If someone sees an advisement on a board, it is only by his choice. If someone sees an advertisement in the newspaper, magazine or any form of press media, he so does by exercising his choice to see/read it. If someone watches an advertisement on a Television, he concedes to it by putting on the TV and watches it. So is the case of radio broadcasting or any other broadcasting media. In this instance, except important notices of its own services and promotions, we have never consented to Digicel that we want all sorts of advertisement for all sorts of companies.

As I have said, the right to freedom of choice or the right to choose is not expressly enumerated under the Constitution. However, since this right is the most fundamental right, it is generally covered under Sections 32, 42 and 49 of the Constitution. Section 32 is the summary or basis of all the constitutional rights and other legal rights properly conferred by other laws. Through the wisdom of the framers of the Constitution, Section 32 carries a more general sense and captures all basic human rights. In other words, Section 32 is all-embracing. Subsection (2) is striking vast interest and has considerable bearing on our discussion. It says that no person shall to be obliged to do anything that infringes another person’s right(s) without any legal justification. In the case of Application by ICRAF Re Willingal [1997], the National Court enforced right to freedom to choose a partner to marry under Section 32. Justice Injia (as he was then) said:

“This is a direct infringement of the woman’s rights under s 32.

I find that Miriam’s right to freedom of choice of a husband of her wish from anywhere in Papua New Guinea at a time of her wish was infringed by both the Tangilka and Konumbuka tribesmen.”.

Supplementary to this, right to freedom of choice can also be enforced under Section 42 of the Constitution. Section 42 talks about personal liberty. Liberty simply means freedom or free-will. It is about freedom of choice. Again Injia in the Re Willingal case (supra), stated that any act that denies by any means the rights of another person to choose is contrary to Section 42 of the Constitution.

Furthermore, the right to freedom of choice can also be enforced under Section 49 of the Constitution. Section 49 talks about right to privacy. It is again demonstrated by Injia in the Re Willingal case where in enforcing the rights of Meriam Willingal (a young girl from Minj - Jiwaka now), said "...a woman who is deprived totally or in part of her ability to make a free choice in respect of the person she is to marry, is deprived of her right to reasonable privacy contrary to s 49 of the Constitution.”.

4. Conclusion

The point I am seriously emphasising is that right to freedom of choose is the foundation of all constitutional rights and Digicel is repeatedly violating this with uninvited, unwanted and unnecessary advertisements via SMS. When we buy phones and Digicel Subscriber Identity Module (SIM) cards, we do not foresee such an infringement. It cannot be well said that we have conceded or consented to such unwelcomed and undesirable text messages impliedly by buying the phones and/or SIM cards.

This is a serious breach of our right to choose to see and read and the Digicel’s lawyers must advise Digicel to stop sending these annoying text messages repeatedly. We are fed up of systematically Digicel depriving our rights in this sense.

NB: If you are an employee of Digicel reading this piece, please advise your management about this post and advise them to seek proper legal advice first. If someone is fed up (maybe a lawyer) and takes Digicel to court to seek permanent stay order against Digicel, then it won't be surprising to us.