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.