South Africa largely respects online freedoms, and to this extent the country could be considered to have a free online media environment. Many of the instances of internet censorship apparent in more repressive countries, and outlined by the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank la Rue, are absent in South Africa. Bloggers, for instance are not criminalised for expressing their views, as they are in much more repressive contexts. The fact that internet service providers (ISPs) are not held liable for internet content – unless they are informed of the existence of illegal content and they fail to take the content down – is a positive feature of the Electronic Communications and Transactions Act (ECT). There is no evidence of users being disconnected from internet access, even if they violate intellectual property laws. Cyber-attacks have become a growing problem in South Africa, but these are largely perpetrated by criminals against businesses. Only recently, in the case of the hacking of the SANRAL website, can the attack be considered “political” and potentially part of public and union resistance to the imposition of e-tolls on Gauteng’s freeways. However, this was apparently not a co-ordinated attack, and therefore should not be taken as a general trend.
However, there are indications that the conditions for internet rights are not optimum, and need to be improved. According to La Rue’s report, there are legitimate grounds for restricting certain types of information, such as child pornography, hate speech, defamation, and direct and public incitement to commit genocide. Any limitation must meet a three-part cumulative test, which ensures that limitations are predictable and transparent: they must be legitimate and they must be necessary and proportional to the aim. He noted that many countries are placing undue restrictions on the internet. Three aspects of this trend cited in his report are relevant for South Africa: criminalisation of legitimate expression, arbitrary blocking and filtering of content, and inadequate protection of the right to privacy and data protection. With respect to the first, it is apparent from an analysis of the various amendments to the Film and Publications Act that the scope for criminalisation of “unacceptable” content has been gradually expanded beyond the constitutionally recognised limitations on freedom of expression. With respect to the second, aspects of the self-regulatory system for internet content are also unduly restrictive of freedom of expression. With respect to the third, safeguards to protect abuses of the government’s monitoring and interception of communications capability are inadequate.
La Rue has also argued for government to prioritise internet access, given that it has become an indispensible tool for realising human rights, which includes making the internet available, accessible and affordable. Where access is present, La Rue has also called on governments to ensure that usable, meaningful content is provided online. South Africa clearly has some way to go in realising these three dimensions of universality. A key weakness in South Africa’s information and communications technology (ICT) landscape has been a confused policy framework that attempts to balance conflicting objectives, but that has on balance allowed excessive profit-taking by parastatal and private network operators at the expense of universal service. In the case of Telkom, the Department of Communications, which is also the custodian of Telkom’s shares, has protected the parastatal from competition to enable it to meet universal service targets. However, largely it failed to meet these targets because the company sought to extend the network on commercial principles, which led to massive churn as users could not afford the rising costs of the service. Cellphone network operators have been largely unregulated by policy, which has allowed them to entrench their dominance relatively unchallenged.
An added dimension to the problem is that the regulator, ICASA, has been weakened by the Department of Communications through a variety of measures, including underfunding, and an erosion of its administrative and institutional independence. Leadership in the regulator has been cited as a key challenge, given that the policy framework guiding its activities is considered by many to be strong. The regulator’s weakness has meant that it cannot hold the network operators to account sufficiently, which has exacerbated the problems mentioned above. These weaknesses also point to the ineffectiveness of the universal services agency, USAASA, in promoting universal service and access to ICTs. Like ICASA, USAASA has struggled to assert itself independently of the Department of Communications, and has been plagued by ineffective management.
Recently, the ICT policy cluster has undergone review, resulting in the gazetting of a new national broadband policy called South Africa Connect. Many of the principles from previous policies, such as universal access, and a programme based on the Constitutional principles of freedom of expression remain in the policy document. While it has been well-received by some in industry – the policy reasserts the need for collaboration between business and government, and other stakeholders to make high-speed, affordable access to the internet possible for all – it remains to be seen whether or not it will be effectively implemented.