ONE month ago, the controversial FPB amendment bill was passed by South Africa’s Parliament. It came as a major blow to online content providers battling prior restraint and other apartheid-era laws from a previous period of newsroom censorship, and will ostensibly turn ISPs into cops, tasked with enforcing FPB content classification, and in some instances, even blocking sites.
If it isn’t nipples and journalists that interest the authorities, then it is Hollywood’s copyright regime and our own country’s fair use/fair dealing laws which seemingly protect creators of content.
A related piece of legislation, the copyright law amendment bill, as it stands contradicts public rights protections and seeks to impose institutional copyright on behalf of collecting agencies, even in areas where a permissive licensing system may already be in place. There is a well-funded lobby promoting copyright restrictions and classification, that also wants to remove fair use wording and any public domain permissions. Currently there are not enough checks and balances shoring up legal defenses against prior restraint while promoting freedom of speech, innovation and the reuse of content via permissive licensing.
The anti-piracy lobby group SAFACT has announced plans to block online sites. Opening the door to politicians who may also want to block sites and target publishers with which they disagree. The vocal religious lobby routinely rails against what they perceive to be the “anything goes society” as do those from the ‘moral majority’ who view porn as the “work of the devil”.
Conservative and Far Left campaigns against porn, hate speech and other ‘social evils’, have invariably resulted in the loss of fundamental freedoms. Acting as a cover for those who seek to limit criticism and public opinion.
The threat of holding ISPS and publishers responsible for users comments was enough to shut down many discus comments sites when the FPB amendment was first announced, effectively destroying the evolution of online letters to the editor and further eroding what freedom remains on the Internet. The emergence of overly broad anti-hate speech legislation hasn’t helped matters either.
The controversy surrounding the X18 age restriction of local film The Wound, the first time a local film has received such a rating in recent memory, is another example of how the FPB will play itself out.
We’ve written about the many problems presented by the FPB and its draconian plans, chief of which is censorship of online content and the erosion of communications and press freedoms guaranteed by our Bill of Rights. Thus the information freedom subsumed under article 16 freedom of expression, and the right to not have the privacy of our communications infringed, under article 14 privacy rights. All drafted following a period in which apartheid censors had gone overboard in their quest to purify political discourse.
You can read some of these articles here:
There is still time to stop the FPB amendment, (and canvass parliament on the Copyright Bill.)
“First, the president can refuse to sign it and send it back to the National Assembly on the point that he thinks it is unconstitutional, or constitutionally problematic. If that doesn’t happen, any MP can ask the Constitutional Court to review it on the point that the amendment is unconstitutional. Finally if it is passed into law, a private citizen or other body could potentially take up legal suit to get the now Act declared unconstitutional.”
THIS YEAR has been a disastrous year for cyber-liberties. South Africans have seen a range of proposed laws rolled out by legislators, each one eroding digital rights which include access to information, freedom of communication, the right to privacy and online speech.
First there was the draft ‘Online Regulation Policy of The Film and Publication’s Board’ (FPB Bill), labelled ‘Africa’s worst new Internet censorship law” and which has resulted in a storm of protest. This was quickly followed by a Copyright Amendment Bill (resale royalties bill) which fails to take into account permissive licensing under the Creative Commons. (There will be no possibility of releasing material under a Copyleft license, since such schemes are by deemed to be an infringement of compulsory licensing under Copyright law.)
Now the Cybercrimes and Cybersecurity Bill, ostensibly aimed at plugging online security breaches, while thwarting criminals — perhaps the worst piece of anti-speech law to come our way yet. Far from being an answer to cybercrime, the draconian bill views the mere intention to use the Internet, as grounds for suspicion, in an Orwellian world described by author Cory Doctorow, as a ‘war against general purpose computing’.
That’s right, merely using a computer, could lead to a chain of events, mapped out by legislators, which includes the end of due process and the annulment of fair use rights and other freedoms. As such, the Cybercrime Bill as it stands, already contradicts our constitution and the previous Copyright Amendment Bill, which in turn, is further complicated by the FPB bill, and when viewed as a suite of legislation, the result is rather scary.
Cybercrimes, such as merely downloading or copying a Hollywood ‘fliek’, could result in forced rendition to a foreign country as a “terror suspect”. The latest Bill, drafted by securocrats, attorneys and lobbyists, acting at the behest of Hollywood, creates a series of unlawful acts, including ‘appropriation of property under copyright’ and deals with the consequences, as if Bruce Willis and Arnold Schwarzenegger were the ones implementing the legislation.
Where the AFB uses the threat of child pornography to advocate for less online freedom, the cybercrime bill uses the threat of terrorism and espionage to motivate for a world in which merely owning a computer, could lead to a change in the legal principle, ‘innocent until proven guilty’. Interception of your data and communication by government agencies acting without a court order, becomes the norm, rather than the exception in the bill drafted by the Department of Justice and Constitutional Development.
Each one of these proposals, severely erodes rights and freedoms guaranteed by our constitution. Without sufficient checks and balances, safeguarding constitutional rights, a default override in favour of citizen’s rights, the laws represent a clear and present danger to freedom.
On January 18, 2012, a series of coordinated protests occurred on the Internet. The online demonstrations against the United State’s ‘Stop Online Piracy Act’ (SOPA), saw hundreds of web-sites, including Wikipedia voluntarily blacked out, sending a clear signal to the American Congress and resulted in a major victory against Hollywood, in a campaign lead by hacktivists and the late Aaron Swartz.
Like the earlier Digital Millennium Copyright Act (DMCA) which sought to control the reproduction of data, SOPA was criticised for being overly broad and too robust. It contained measures, critics said, that could cause great harm to online freedom of speech, Internet communities and net neutrality. Protesters also argued that there were insufficient safeguards in place to protect sites based upon user-generated content.
ACT NOW BEFORE IT IS TOO LATE
Interested parties wishing to comment on the Bill are invited to submit written comments to the Department of Justice and Constitutional Development on or before 30 November 2015. These can be submitted to: email@example.com. Submissions can also be faxed to: (012) 406 4632. For information or queries related to submissions, contact Mr S J Robbertse on: (012) 406 4770.
Published as an Op-Ed in the Cape Times 23 October 2015.
THE Films and Publications Board has mooted a proposal for the classification of online content that could result in the removal of free speech and communications freedoms guaranteed by South Africa’s constitution.
The proposal would also seriously compromise the principle of net neutrality.
The draconian and ill-considered plan forces all distributors of online content to register with the board, resulting in a funding regime that would result in government censorship of online communication. In effect we will be paying to be classified, as social media and the Internet itself becomes subject to government fiat in the form of an Internet Tax, followed by an inappropriate ratings scheme borrowed from the countries current television dispensation.
A fee of R450 is proposed for each and every film or online publication distributed over the Internet.
The main concern of the board appears to be the impact of content on children, but there is no reason why adult supervision and caveat emptor should now be supplanted by government controls. The usual scare stories about child pornographers have also been raised.
Unlike television which is programmed and available via terrestrial and satellite channels, the Internet is not live programming as such.
Users have to actively search out sites, in an activity known as surfing.
Most plans to censor online content around the world have failed, since the Internet itself is not controlled by anyone, and historically routes around such obstacles.
Users would simply deploy encryption technology, making it impossible for the board to monitor online content. This is the reason why an earlier proposal by Minister Gigaba for a national firewall was quietly dropped.
In terms of the new regulations, Medialternatives and other online blogs hosted outside the country, could be subject to a government classification committee, in a step which is reminiscent of previous attempts to regulate and censor the press.
Under the ANC ruling party and also during the period of apartheid, various plans have emerged which are nothing less than motions to stifle press freedom and the right of access to information.
In the event of the policy being enacted as law, Medialternatives will refuse to participate in such a scheme, and will not comply with any government request to rate or classify content.
The apartheid state routinely banned publications and periodicals, gagging journalists critical of the regime.
Medialternatives has been publishing free content since 2005.
You can read the policy proposal here
Following what transpired at the opening night of the 2013 Durban International Film Festival (DIFF), director Jahmil X.T. Qubeka’s “Of Good Report” will go down in history as one of the most spectacular opening night films seen by almost no one. After the obligatory opening night speeches–many of them evoking Nelson Mandela on his birthday, the pre-1994 struggle against Apartheid, for freedom of expression, and DIFF’s role in that struggle–the lights were turned off for the film to start. Only that there was no film, just white text (supplied by the Film and Publications Board, the local censors) against a black background stating the film had been refused classification and that it would be a criminal offense to screen it. The local film community understandably is not amused.
Qubeka’s third feature tells the story of Parker Sithole (Mothusi Magano), a schoolteacher involved in a relationship with one of his students Nolitha Ngubane (played by 23-year old Petronella Tshuma). It is a story of unhealthy and illegal liaisons, power, abuse and obsession, which ultimately takes both the disturbed teacher and his beautiful student down a dark and extremely violent road.
Qubeka–his mouth taped shut–and his co-producers, cast and crew–as baffled as the audience–came onto the stage and then proceeded to burn what looked like a South African identity document (ID) book or a passport. He then threw document on the floor and proceeded to hug his cast and crew. As the drama unfolded, the audience–some shell-shocked and silent, others whistling and shouting in disgust–tried to make sense of what was unfolding:
It turned that 28 minutes and 16 seconds into Qubeka’s third feature, the Film and Publication Board’s classification committee had stopped the classification process (which means that they interrupted the viewing of the film) after unanimously agreeing that a sex scene between Parker and Nolitha’s characters a couple of minutes before, constituted child pornography. In another scene following shortly after the sex scene, Nolitha’s character appears in a classroom dressed in the school-uniform of a ninth grader. Conclusion: the character of Nolitha is a child and a scene where she is engaged in sexual interaction is child pornography.
UPDATE: This film was unbanned over the weekend by the Film and Publications Board, which slapped a 16 age restriction
A journalist complains to you about race profiling and censorship at an apartheid media company. What is the correct response?
A) Ignore him and hope he goes away while the public are brainwashed by corporate propaganda.
B) Call the police and have him locked up in a bad place.
C) Try to explain there is no apartheid or that apartheid is simply “good neighbourliness”.
D) Redefine the words “race profiling” “censorship” and “apartheid, so they don’t make any sense.
E) Feel sorry for him, offer him a cup of tea and a sandwich, then promise you’ll do your best to help, but conveniently forget about it in the morning.
F) Examine the censored story for clues, then attack his ethnicity and heckle him for being a particular colour.
G) Decide he is mentally ill and have him treated by remote control
H) Make sure he has the best legal assistance money can buy.
I) Engage in racist banter in the hope that your support of the KKK will reveal the inner workings of the Illuminati.
J) Solicit costly legal services that you hope to get a pretty penny for while repudiating his legal insurance
Christi van der Westhuizen is an award-winning political journalist and the author of White Power & the Rise and Fall of the National Party (2007). She has worked at Vrye Weekblad, Beeld and ThisDay and has regular columns in The Star, Cape Times, The Mercury and Pretoria News. She has been interviewed for political comment on the BBC, Radio New Zealand, Radio Adelaide (Australia), SAfm, SABC3, e-tv and M-Net. In 2005, she edited the book Gender Instruments in Africa: Critical Perspectives, Future Strategies while working as senior researcher in International Relations. She worked as Inter Press Service’s trade editor for Africa and Europe between 2007-2011. She holds an MPhil in political economy and South African politics
In a piece published by Amandla she says: “I recently resigned as monthly columnist at Media24’s daily newspapers after one of my columns was censored. The offence that led to the censorship? As a proponent of the position that the media’s allergic reaction to self-criticism is to its own detriment, I had dared to do exactly that: employ critical examination of the media.”
In the piece, she attacks newsroom juniorisation, the practice of purging qualified staff and hiring inexperienced juniors in order to prevent the formation of professional echelons that could be in a position to criticise the manner in which the company conducts its business. Media24 has been taken to task by Noseweek Magazine for producing cram-collage journalists via Damelin College and City Varsity, both of which are owned by the company, and which allow uncritical hacks to bypass University Journalism departments.
“The effect of the continuous personnel cutbacks in newsrooms is obviously that there are not enough people to do the work properly, which leads to errors.” says van der Westerhuizen.
IF draconian plans announced by Deputy Home Affairs Minister Malusi Gigaba to ban all Internet porn are put into effect, South Africa could end up with its very own “Great Wall of China” restricting digital freedom and abolishing net neutrality in the process.
Net Neutrality is not just the idea that all datastreams should be treated equally, but rather the notion that national borders and regional boundaries do not extend to the Internet. In other words, an html page created in South Africa can be viewed in America and vice versa, without needing a passport or incurring an interconnection tax.
Google recently pulled out of China because of concerted attacks on its search engine by the Chinese government. It is the one example of a nation which has shunned Net Neutrality (and open borders) in favour of a separate “electronic homeland” if you will.
If the home affairs ministry has its way, applying the kind of national hegemony one finds aboard fishing vessels for instance, tier one service providers would be forced to filter information, which includes Google searches, in effect introducing the exact same kind of censorship found in mainland China.
Forcing tier one networks to do the job of the Film and Publications Board, aka the ANC censorship & morality committee, would seriously infringe upon constitutional guaranteed freedoms such as the right to receive or impart information. It would also set a bad precedent by forcing sites such as YouTUBE and MySpace to censor themselves. Although the bill is geared towards pornography, it opens the door to more repressive forms of censorship such as the kind once experienced during the apartheid regime.
Gigaba appears to have met with the Justice Alliance of South Africa (JASA) early this week to discuss draft legislation on the matter. The document in its current form, as drawn up by JASA proposes that “pornography be filtered out at the tier one service providers to avoid it entering the country.”
The bill is aimed at the “total ban of pornography on the internet and mobile phones.”
According to Myadsl and IOL, Gigaba said it was noted that unlike in the physical world where a reasonable effort could be made for pornography to be kept away from children, in the online world, pornographic sites were often “parked deliberately next door” to educational sites, often with names almost identical.
Current legislation, particularly the Film and Publication Act, provided for a ban on child pornography, whereas the proposed bill provides for a total ban on pornography on electronic channels using the wider definition of pornography already available in the Sexual Offences Act.
That Gigaba, who claims to have an MA in pedagogics from University of Durban-Westville, has absolutely no clue how the Internet and the economy works can be seen by his incorrect comparison of a motor car and the Internet: “Cars are already provided with brakes and seatbelts; it is not an extra that consumers have to pay for,” he said.
“There is no reason why the internet should be provided without the necessary restrictive mechanisms built into it,” Gigaba also said in a proposal that would cost billions, and necessitate the complete overhaul of the industry as we know it.
Exactly how such a “restrictive mechanism” would work is open to debate, but doing so would set in motion a repressive technological environment which would destroy South Africa’s claim to digital freedom and net neutrality.
A far better solution than placing walls around various parts of the Internet would be to make website blocking software available to the public, allowing individuals to make decisions for themselves. But it is doubtful whether such a solution would satisfy an ignorant, uneducated and backward home affairs department intent on exercising ministerial decree over the entire Internet, thereby placing all websites under the ambit of the Film and Publications control board and the mother grundies at Luthuli House.
South Africa does not have to censor itself. There already exists legal mechanisms for issuing take-down notices via ISPA for sites which contravene copyright law, and an international legal instrument instead of a technological quick fix would thus be far more desirable.
In any event, introducing censorship technology would invariably slow down the Internet while introducing all sorts of problems with vetting what may or may not be watched by an inquisitive public. If the department simply closes down domains without any review process, where is the public interest? Who determines what is politically correct or incorrect on any given day?
It is also doubtful if any of the arguments deployed by the minister are actually about child access to pornography or even so-called “child porn”. What is implicit in the statement by home affairs, is the idea that government alone should be responsible for determining the content of Internet discourse — the nature of freedom of speech on the Internet, communication itself. Instead of being treated as citizens with equal rights, South Africans are being treated like children, subjects of the Dept of Home Affairs.
It really does reminds one of the dark days when apartheid censors blacked out news copy and published lists of banned publications which included girlie magazines and works by Karl Marx
Gigaba thus appears to have dumped The Pedagogy of the Oppressed by Paulo Frere in favour of the Collected Works of Joseph Stalin, pulling off a putsch of sorts which could destroy South Africa’s fragile democratic revolution.