SOUTH AFRICANS won a massive victory for communications freedom when we saw the inclusion of the right 16(1)(b) which practically squashed anti-piracy litigation of the kind, contemplated by MIH Multichoice for nearly twenty years. Attempts to prohibit users from sharing information have met with limited success.
The company released a statement last week, attacking the lawfulness of receiving information via data-over-IP:
“MultiChoice will be appointing a Cyber Piracy Investigator who will aggressively go after South Africans who illegally download and share local and international TV content.” The group has already posted job notices for a cyber-snoop who would aggressively monitor Internet users, without a court order.
The issue here isn’t the sale of illicit copies by commercial interlopers, it is a clampdown on the general right of access to information by users in the form of data-over-IP.
Access to Information over the Internet is a right guaranteed by our constitution.
Article 16, is a constitutional covenant (not a privilege), enabling media and press freedom which contains the all important (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research. Inalienable rights that are of increasing importance so far as the Internet and access to information is concerned.
Information rights, enacted during Nelson Mandela’s Constituent Assembly, make South Africa one of the most Internet-enabled and digitally-friendly countries. The Bill of Rights is very progressive (some might say radical), on issues related to civil rights, personal freedom and digital access. At least this was the intention so far as the founders of the country’s Bill of Rights were concerned.
During the tumultuous and important period of the drafting of our nation’s Bill of Rights during 1995 and 1996, I actively campaigned for lawmakers to put the right “to receive and impart information, as well as ideas”, i.e. communications freedom and cognitive liberty, into our constitution. The campaign built upon earlier civil rights campaigns, both off-and-online.
I had just returned from the San Francisco Bay Area, having launched a landmark, online campaign of electronic civil disobedience (ECD). The campaign against the Criminal Justice Bill (a nasty piece of UK legislation outlawing outdoor dance festivals and music with a repetitive beat) which banned open-air raves as they were called, had met with limited success, but set the stage for further ECD campaigns, and featured in a digital history timeline of the Internet, as a first experiment with the electronic medium, so far as activism (and hacktivism) was concerned.
Communications Freedom and the Right to Privacy were thus at the top of our bucket lists, as local hactivists and netheads such as Stephen Garrett and others, (I include myself here), openly canvassed Jay Naidoo, and then Minister of Post and Telecommunications, Pallo Jordan and others. Thus several events on Net Rights issues were held at South Africa’s very first Internet Cafe in Long St, Cape Town.
The inaugural Net Democracy event was soon followed by sessions on Net Rights and other Digital topics.
The papers of the day record: “An Internet Relay Chat (IRC) the first between a cabinet minister and the public, took place in the City today” …”More than 120 people from around the country, asked [the Minister] questions about the Green Paper on Telecommunications.”
The atmosphere of tolerance and openness two decades ago, contrasts strongly with the secrecy and paranoia of the government of today. To compound the problem of the erosion of net freedom, is the manner in which corporations are now taking centre stage of the digital rights debate in our country.
The latest move by Multichoice is really an affront against all digital rights activists, it is nothing less than an attempt to alienate the principle of information freedom and sharing of information, delineated as the ‘right to receive and impart information’, enshrined in our Bill of Rights. In the process casting users as “thieves” in a victimless crime where the owner of copyrighted material is left, still in possession of property, but without a potential royalty payment.
The current Cybercrime Bill before parliament, (which I have already written about in an Op Ed published by the Cape Times), violates key features of the constitution, including the right to due process. The ruling party currently does not have the necessary 2/3 majority needed to pass such draconian legislation, and even if it could there are several checks and balances so far as this process is concerned. The only way that one could ever reasonably enforce the kind of cybercrime laws presently contemplated under several new pieces of Apartheid-style Information legislation is by redrafting the Bill of Rights, in particular the clause referring to which rights are considered derogable (non-absolute) and which are not!*
Multichoice, a pay-television corporation which gained prominence, having emerged with a monopoly concession from the PW Botha regime, now seeks to pre-empt the legislation currently being debated in our National Assembly. Demonstrating open contempt for the legislature, the company is steaming ahead with an extra-judicial redrafting of the Bill of Rights, in the corporation’s own image. This is so it can maintain a monopoly over information in South Africa. Earning enormous profits by denying citizens access to information freely available online.
Most national and international television networks are freely available on the Internet. Al Jazeera for instance, streams over the Internet for gratis. Multichoice however, packages these free channels as part of its bouquet of services, for which users pay a fee.
The company has already begun to spin the story, as a first step to “monitoring of torrent sites”, all in keeping with copyright law, but this ignores the fact that many people use torrents to download free and open-source software.
In terms of the litigation and aggressive policing contemplated by Multichoice, simply watching Youtube Video and other online activities, could result in jail-sentences. Educational videos and streaming of documentaries will carry penalties which penalise students and those least able to afford education.
The torrenting, downloading and streaming of information will become grounds for suspicion of illegal activity. Merely using a computer could have unintended consequences so far as monitoring and enforcement is concerned.
The Multichoice concession, created during the apartheid regime, runs against the principle of freeness and inclusion of citizens needs so far as access to information and the Bill of Rights is concerned. Instead of sacrificing information rights to the corporation, the concession should be abolished in favour of flat-rate billing for data.
*NOTE: Non-Derogable rights are those which are considered “peremptory norms” under international law and thus absolute, they need to be distinguished from other derogable rights, which although no less important, since they are inalienable and cannot be taken away, are not considered absolute and thus are open to judicial interpretation. The degree to which rights in our Constitution are open to such interpretation is the basis for considerable debate amongst scholars.