Africa has been at the heart of a storm over freedom of speech and access to information over the past few months, as various governments become guilty of internet censorship or cracking down on the freedom of their people in the digital space.
Uganda imposed a tax on social media use and mobile money payments last month, while the Algerian government became just the latest to shut down the internet altogether. In Tanzania, bloggers that fail to pay a new licence fee are having their sites shut down.
South Africa has developed a reputation as having one of the more democratic systems on the continent, with a free press and an active civil society. Yet Africa’s latest scandal surrounding online freedom could well be brewing in the rainbow nation.
In March, the South African parliament approved the Film and Publications Amendment Bill, which legislates for the rights and responsibilities of media producers and consumers, sets out what content is illegal, and decides how media can be classified with age ratings.
All very mundane at first glance. Yet the draft legislation, now before the National Council of Provinces (NCOP), has caused controversy, as deliberately or not it threatens basic freedoms of use who use the internet and online communications methods.
The Internet Service Providers’ Association of South Africa (ISPA) says the act, which was initially drafted in a pre-internet 1996, needs redrafting for the internet and social media age. The organisation argues that the bill in its current form amounts to internet censorship.
“Problematic definitions effectively turn all South African internet users into online content distributors, directly regulated by the Film and Publications Board (FPB),” said Dominic Cull, ISPA’s regulatory advisor.
The issue is this. The amendment has three different definitions of the term “distributor”, one of which is a “non-commercial online distributor”, which it says is “any person who distributes content using the internet, or enables content to be distributed by a user of online services, for personal or private purposes”.
What this means is that the bill as it stands would give South Africa’s Film and Publications Board the right to regulate all South Africans who distribute electronic content. This could in theory extend to any private communication between individuals using platforms like Facebook, Twitter and WhatsApp.
ISPA says this goes beyond the original mandate of the legislation, and contradicts fundamental constitutional rights such as freedom of expression.
“The bill empowers the Film and Publications Board to make decisions about what is and what is not protected speech and to issue takedown notices where it is of the view that speech is not protected. ISPA believes that a quasi-government body appointed by a minister should not be making extremely complex legal judgment calls about something as fundamental to our hard-won democracy as freedom of expression,” said Cull.
There is, of course, a need for the legislation to be updated. Video-on-demand (VOD) services like Netflix and Showmax have arrived on the scene, meaning consumers are now increasingly getting movies and other content from online platforms as opposed to traditional video stores. Hate speech is also an issue that needs addressing. However, ISPA feels legislators are going about this all wrong.
“Unfortunately, while the bill sets out a framework for classification of online content which could be useful, this is lost in vague definitions and ill-considered attempts to expand the role of the Film and Publications Board into an internet policeman,” said Cull.
ISPA, he said, enjoys a good working relationship with the Film and Publications Board, and believes the changes to the legislation are well-intentioned.
“We are also optimistic and confident that the FPB does not intend to use its powers to censor internet users arbitrarily,” Cull said.
However, even well-intentioned legislation can be extremely harmful if it is open to abuse. The members of the FPB are appointed by a minister, and head an organisation to which this bill gives broad powers to regulate electronic communications between private individuals, in a way that likely conflicts with South Africa’s Constitution.
“If the legislation were to be abused in the future, that could be very dangerous for South Africans,” said Cull.
“Recent attempts by some African and other governments to exert greater control over social media and electronic communications illustrate these dangers.”
The Bill has already been passed by the National Assembly, and is waiting to be scheduled for consideration by the National Council of Provinces. Thereafter it requires the signature of the president and proclamation to become law.
ISPA hopes it is withdrawn and rewritten before this happens, and recommended for the government to get outside, expert help with putting a new amendment together.
“The task of regulating online space is complex and immense. ISPA believes that government should partner with any legitimate source of assistance, including industry, with a contribution to make,” Cull said.
“The Film and Publications Board has shown a willingness to do this, partnering with excellent initiatives such as Media Monitoring Africa’s Web Rangers program and working with industry to raise awareness of opportunities and threats created by the online space.”
ISPA hopes that government notes the significant concerns raised about this bill.
“Industry would certainly appreciate any further opportunities to engage with lawmakers about less harmful approaches to regulating online content,” said Cull.
Tom Jackson is co-founder of Disrupt Africa, a news and research company focused on the African tech startup ecosystem.
