SANEF, SOS and MMA Submission – Critical Infrastructure Protection Bill
13 March 2018
WRITTEN SUBMISSIONS ON THE CRITICAL INFRASTRUCTURE PROTECTION BILL BY THE SOUTH
AFRICAN NATIONAL EDITORS’ FORUM (SANEF), THE SOS: SUPPORT PUBLIC BROADCASTING
COALITION AND MEDIA MONITORING AFRICA (MMA)
1.1. These submissions are made by the South African National Editors Forum (SANEF), the SOS:
Support Public Broadcasting Coalition (SOS) and Media Monitoring Africa (MMA) (collectively, the
Group) a grouping of civil society organisations which different focus areas but all involved in
preserving media freedom and working to improve the media landscape in South Africa and to
promote freedom of expression and access to information in South Africa.
Read more details in document below;
Joint Written Submission by SOS Coalition and Media Monitoring Africa on the ECA Amendment Bill
SOS and MMA have extensive experience in acting in the public interest on matters of freedom of expression and specifically public service broadcasting. Both organisations have extensive experience in contributing to ICASA and Department of Communications- processes with regard to broadcasting.Further, as the DTPS is aware, SOS and MMA are concerned about the electronic communications environment as a whole, even though traditionally their area of focus has been on broadcasting and, in particularly, on the public broadcaster, the SABC. MMA has over the last year held a series of multi-stakeholder workshops dealing with critical issues relating to internet governance, from the Hate Speech Bill, the Film & Publications Bill and Internet Regulation to the Copyright Amend Bill and the Cyber Crimes and Cyber Security Bill. Accordingly, MMA and SOS are well placed to offer informed input on this Bill.
In responding to the issues raised in the Bill, SOS and MMA do not necessarily deal with all the issues raised in the Bill or in the order in which they arise in the Bill, nor do they confine themselves to the issues canvassed in the Bill. In making these submissions, SOS and MMA are attempting to assist the DTPS and the Portfolio Committees in realising:
- the depth and breadth of the challenges facing the electronic communications sector;
- the need for a legislative framework that recognises the reality of convergence; and
- the need to ensure independent regulation of electronic communications, including as provided for in section 192 of the Constitution of the Republic of South Africa, 1996 (the Constitution).
MMA’s Submission on the SABC Editorial Policy Review
The SABC Editorial Policies were developed in terms of the Broadcasting Amendment Act (2003) and came into effect in 2004 following public consultation and input. This established a specific link between the public broadcaster and the South African public and allows for direct participation and input in the affairs of the SABC. These policies are intended to ensure compliance with the ICASA code of conduct, the corporation’s licence conditions, and the provision of the Act, and should be reviewed (in consultation with the public) every five years. However, due to ongoing management and Board problems at the SABC, the first revision process was only initiated in 2013. This process, too, was found to lack the substantive consultations required and on the 8th of March 2017, ICASA declared that the editorial policies were invalid and the 2004 policies were reinstituted. Our comments are therefore based on the 2004 editorial policies.
Submission to the Information Regulator regarding regulations in terms of the POPI
This submission on the draft Regulations published for comment by the Information Regulator in terms of section 112(2) of the Protection of Personal Information Act 4 of 2013 (POPIA) is made jointly by the Press Council of South Africa (Press Council), the South African National Editors’ Forum (SANEF), Media Monitoring Africa (MMA) and the amaBhungane Centre for Investigative Journalism (amaBhungane)
This submission focuses on the impact and application of the provisions of the draft Regulations on the media, particularly in the light of the express journalistic exclusion contained in section 7 of POPIA. The Press Council, SANEF, MMA and amaBhungane believe in independent co-regulation of the media, involving exclusively representatives of the media and representatives of the public, as it is our firm view that any other form of regulation would threaten the independence of the media.
Submission to Department of Justice and Constitutional Development by Media Monitoring Africa on behalf of children from its Empowering Children and the Media Programme
This submission is guided by the principle that children are active agents who, if given the opportunity and in accordance with their evolving capacity, have the ability to meaningfully contribute to various and often complex matters that affect their lives. Therefore, given the far reaching implications of the Prevention and Combating of Crime, Hate Crimes and Hate Speech Bill on the South African public including children, this submission outlines the views of children who engaged its contents and whose feedback has been pulled together and submitted as part of the civic participatory process. The About MMA and its Child Participants Section provides information on the organisation and the children behind the submission. The Executive Summary highlights the main findings from the children’s engagements. Under General Feedback, broad commentary can be found relating to the group’s views of the Bill in its current form and feedback relating to the definition of hate crimes which is outlined under the Definition Section. Child-driven insights relating to penal sanctions are explored under the Sentencing and Alternatives Section while the Considering Schools section discusses implications of the Bill in the school environment Under Visual Illustrations, the children’s art that accompanied their words is used to further illustrate their perspectives. The last section outlines the Recommendations.
WRITTEN SUBMISSIONS ON THE PREVENTION AND COMBATTING OF HATE CRIMES AND HATE SPEECH BILL BY MEDIA MONITORING AFRICA
MMA welcomes the draft bill on the Prevention and Combatting of Hate Crimes and Hate Speech Bill, although there are some critical changes that need to be implemented. Read MMA’s full submission for further information.
MMA and SOS Coalition: Written Submissions on the Films and Publications Amendment Bill
26 May 2016
On 26 May 2016, Media Monitoring Africa (MMA) and SOS: Support Public Broadcasting Coalition (SOS) put forward a formal written submission on the Film and Publication Amendment Bill, as invited by parliament. As its name implies, the bill aims to amend certain sections of the Film and Publications Act. Importantly for us, it looks to broaden the scope of the Act to include the regulation of digital content. While MMA and SOS both see the need for legislation to be brought in line with the new digital reality and the dangers thereof, we argue that the bill in its current form may obstruct the potential growth and opportunities offered by the internet.
The following unpacks in more detail the legislation and the Amendment Bill as they currently stand as well as presents our position on the Bill with our recommended suggestions and changes.
The Film and Publication Act: Background
The Film and Publications Act, no. 65 of 1996, provides the legislative framework to classify films, games and publications. The Film and Publications Board (FPB), as the statuary body defined in the Act, is the institution that carries out such classifications in South Africa i.e. the FPB are the group that advise whether a program is suitable (or not) to those in a certain age group (younger than 16 years old etc.) and why they think so (strong language, violence, graphic sex etc.).
This Act was a deliberate move away from the Apartheid-era censorship that saw the government in complete control of the content that was broadcast. The FPB therefore aims to supply the public with all the necessary information for them to make their own choice about what films they watch or what games they play.
What does the Amendment Bill look to change?
The Film and Publications Amendment Bill aims to update and modernize the existing legislation: (1) to change certain terms and definitions, (2) to further criminalise activities related to “child pornography” (see note on definitions below) and (3) to extend the regulatory powers of the FBA and the FPB to include digital content. It was formally introduced to parliament on 30 November 2015 and interested parties were given until 26 May 2016 to submit their thoughts and recommendations.
See the full Amendment Bill here:
What did we think?
The internet revolution has brought about a myriad of changes to the ways in which the world operates. We recognise that the government has the unenviable task of developing legislation that both mitigates against the potential threats online but that which also promotes freedom of expression and facilitates the widespread and constructive use of the internet. As it stands, we feel that the Amendment Bill focuses almost exclusively on the risks and dangers (such as cybercrime) and downplays how people’s access to the internet is a facilitative right and is integral to us realizing our development potential. We therefore offer multiple recommendations and suggestions in our parliamentary submission. To find our full submission, follow this link: http://bit.ly/2cvMB2F
For the purposes of brevity, we will focus on three core issues here.
Powers of the FPB
One of our biggest concerns is that the Amendment Bill in its current form seeks to extend the powers of the FPB in such a way that seems to infringe on multiple sections of our Constitution. Specifically, if this Bill were to be legislated, only content that is classified by the FPB would be permitted online. In our view, this system of pre-publication classification is not only impractical but also violates people’s rights both in terms of access to information and in terms of freedom of expression. In our current digital age, this type of regulation would be an express form of online censorship and in MMA’s opinion, could not be found acceptable or appropriate in our context.
The Bill also seeks to provide the FPB with seemingly absolute power. We argue that none of the authorities established under the FPB Act or those that were put forward in the Bill are sufficiently independent autonomous institutions to allow for a free unbiased regulatory broadcasting body. Currently, the FPB Council is appointed by the Minister and our concern is that government, if the Bill passed, would have access to potential interference with online content, which in our view, is unconstitutional.
The impact on user-generated content
One of the primary sources of confusion in the Bill relates to definitions around ‘ online distributor’, ‘content’, ‘digital film’ and ‘conducts business’, among others. The definitions provided for these terms cloud exactly what type of content needs to be classified and what groups are involved. For example, the Minister has already suggested that those that “conduct business” with digital content could pay as much as R800 000 for their “license fee”. But the Bill remains unclear as to who can be defined as “conduct[ing] business”? Are individuals with a part-time blog regarded in the same way as international players such as Netflix whose sole business is online streaming? Can we expect said bloggers to pay such an exorbitant license fee to simply upload a video demonstrating their newest recipe?
Beyond those with potential business interests, the definition of ‘distributor’ is also broad enough to include all user-generated content. Every day, tens of millions of ordinary South Africans upload and share an unthinkable volume of content often through social media networks. How can the FPB expect every internet user who wishes to upload something to be part of an industry classification body? Equally, how can the FPB expect to classify the plethora of videos, links, photos and articles uploaded by private citizens every day? The logistics of attempting to regulate all content uploaded to the internet is simply unworkable and these objectives laid out by the Bill are plainly impractical in the face of the broad spectrum of internet users and the volumes of digital content involved.
We would argue that the FPB would need to re-examine these definitions specifically in order to clarify who would be held accountable for the distribution of their online content.
It is clear that a major objective of the Amendment Bill is to strengthen the protection of children in the digital space. While this is indeed a concern, there appears to have been a major gap in the public participation process where no children or youth or even children’s rights groups were consulted at all. How can one develop laws and policies without the views of the very people for whom the legislation is developed? We would argue that this is a major oversight on the part of the Film and Publications Board and thorough public participation with children and youth would need to occur before the Bill should be taken further. Such consultation will also bring to light the fact that children are a broad sector of society that represent a diversity of individuals that have their own agency and are of different developing capacities, risk profiles and resource bases. It is critical that such diversity is considered and reflected in this legislation.
We have also taken issue with the use of the term “child pornography” in the bill. We argue that pornography itself is a constitutionally protected right of freedom of speech and it should not be affiliated to or confused with content that depicts sexual exploitation and abuse of children. It must be made clear that the latter content is strictly criminal. We suggest that the term “child abuse material” is a more appropriate phrase in this context.
Where are we now?
The issues raised above are only a handful of those brought up in our submission. Once again, you can find our full submission here: http://bit.ly/2cvMB2F
On the 31 August, 2016, Media Monitoring Africa and the SOS: Support Public Broadcasting Coalition were afforded the opportunity to make an oral submission in parliament, to the Parliamentary Portfolio Committee on Communications. Once the oral presentations are concluded the Committee will deliberate the Amendment Bill, taking into consideration the views expressed in both the written submissions and the oral presentations. We look forward to further opportunities for engagement on this Bill.
For further information, both on our position and our submission, feel free to contact us at:
Written Submissions By The Media Monitoring Africa (MMA) On The Cybercrimes And Cybersecurity Bill
The possibility exists that new forms of cybercrime will emerge with evolving technology. New cyber laws should therefore be introduced to respond to these rapid changes, especially as they will impact different sectors and groups differently. In this regard it is critical that children and marginalised groups including women’s needs and issues are highlighted to ensure laws work to protect them and promote their rights. We also draw attention to the fact that the needs of other women and girls are also ignored in the Bill. Issues of online gender based violence need to be addressed.
There should also be continuous research and training of IT security personnel, finance services sector personnel, police officers, prosecutors and the judiciary to keep them abreast of advancing computer technology. At the end of the day, a balanced approach that considers the protection of fundamental human rights and the need for the effective prosecution of cybercrimes is the way forward.
Read the full submission below.
Written representations by MMA on the review of regulations on South African local content
31 August 2015
In an ever increasingly digital age where platforms not only converge but also where citizens are being swamped by international content the role and importance of local content could not be greater. While the digital world offers almost limitless options for the amount of content there is a need to ensure that we meet the needs of citizens. This means ensuring that people see themselves, their stories, their languages, their realities presented and represented. It means we have an even greater responsibility to our children to ensure that their needs as South Africans and Africans are not marginalised and added as after thoughts. Read the full submission below.
MMA’s submission on behalf of children on the FPB’s proposed Online Regulations
MMA submits that the Draft Regulations in their current form deny children some of their basic rights as enshrined in the South African Constitution, the United Convention on the Rights of the Child and African Charter on the Rights and the Welfare of the Child. Accordingly we call for the withdrawal of the regulations in their current form.
MMA’s submission on the Film and Publication Board’s proposed Online Regulations.
In this submission, MMA argues that the Regulations in their current form are impractical, illegal, overly broad and will not achieve their stated aims
MMA’S submission on the National Integrated ICT Policy Discussion Paper
2 February 2015
Our submission focuses on the following:
- Infrastructure and Services
- Audio and Audio-Visual Content Services
- Institutional frameworks
- Internet Governance and the Protection of Children Online
MMA Written Submission to USAASA on the Qualifying Criteria for the Set-top-box Scheme of Ownership
28 November 2014
The Universal Service & Access Agency of South Africa (Usaasa), the government agency tasked with bridging South Africa’s digital divide, has provided details of those who will qualify for a subsidy when buying a set-top box for watching digital terrestrial television.3.2. As universal access is considered a basic human right, MMA respectfully submits that in developing the Proposed Qualifying Criteria for the Set Top Box (STB) scheme, USAASA appears to have ignored the vast majority of households that it needs to service. We assert this as the Agency has set the threshold of households that deserve the partial subsidy at R3200/month. This amount presents the real possibility of poor TV owning households being cut off when the analogue signal is switched off. The failure to provide 100% subsidies, will also have a counter-productive to the entire digital migration process, it will not only result in a lot of people being unable to purchase the STBs but, will also lead to broadcasters only serving a limited market. Audiences are key to the success of digital migration
MMA’s Submission on User Generated Comments
4 November 2014
MMA was asked to make a submission to the Independent Newspapers User-Generated Content Panel. The main aim of the Panel is to report on and make recommendations concerning hate speech, personal attacks and defamatory statements contained in comments by the public on internet websites controlled by Independent Newspapers. MMA commends the Independent Newspapers for opening its processes to civil society and for discussing the hard pressing issue on how to regulate comments made on its online platforms. We hope this process will be exemplary to other media houses in South Africa that have not yet initiated some formal regulation around their online commentators.
MMA Written Submission to ICASA on the Review of Regulation on South African Local Content
10 October 2014
In Notice No. 529 published in Government Gazette No. 37803 dated 4 July 2014, the Independent Communications Authority of South Africa (ICASA) published the Discussion Document on the Review of Regulation on South African Local Content: Television and Radio. MMA commends ICASA for initiating this process and publishing the discussion document. However, we are deeply concerned about the lack of reference in the document to the actual research done by the regulator. There are very few references to the research and case studies; this unfortunately weakens the “Discussion Document”.
MMA’s Submission in response to the ICT Green Paper 2014
31 March 2014
MMA is excited to be participating in such a critical policy area, one that has the potential to help ensure South Africa can realise its potential as a nation a well as the values enshrined in our constitution. MMA has developed the following four key areas which speak directly to the underlying foundational principles which should be reflected in the ICT Policy:
Children and ICTs;
Broadband as a human rights issue;
Digital information and digital literacy;
Broadcasting and Diversity, and,
Issues of accountability and transparency.
The importance of the ICT policy cannot be underestimated, not only will it help shape our media environment it will also give an indication if we are to realise our nation’s capabilities and grow.