Obstacles to Access: 6 (0–25)
Limits on Content: 7 (0–35)
Violations of User Rights: 8(0–40)
Total Score: 21 (0–100)
There is a high level of digital media freedom in South Africa. Political content is not censored, and bloggers are not prosecuted for online activities. The country is in the exceptional position of having more people accessing the internet from their mobile telephones than from their computers. Nevertheless, the majority of the population is unable to benefit from internet access due to high costs and the fact that most content is in English, an obstacle for those who speak only local dialects. Despite several positive court rulings, there are also increasing concerns that precedents established by defamation cases involving traditional media may be used to limit free speech online, especially in forums like the social-networking site Facebook.
Obstacles to Access
Access to the internet has steadily improved in South Africa despite the obstacles that remain. It is estimated that about 8 percent of the population – 4 million people – has access, one of the highest rates in Sub-Saharan Africa. However prices are still beyond the reach of the majority of the population.1 Most of those with access, especially broadband access, are concentrated in urban areas. After years of stifled competition, the market is slowly opening up, and it is expected that costs will drop with the arrival of the Seacom undersea fiber-optic cable in 2009 and the increasing use of updated mobile-phone technology. Telkom SA, a partly stated-owned company, retains a near monopoly in providing broadband access via ADSL, though the recent licensing of a second national operator, Neotel, should increase competition.
A number of companies offer broadband alternatives via mobile phones, including Iburst, Cell C, MTN, and Vodacom. South Africa is thus in an unusual position in that mobile broadband is cheaper than the fixed-line alternative, which remains extremely expensive. As of 2008, 9.5 million South Africans accessed the internet via mobile phones, slightly more than double the number of those who connected via computers.2 This gap is expected to increase given the extensive mobile-phone penetration and the fact that South Africa’s mobile internet access is among the cheapest in the world. The total number of mobile-phone subscribers is estimated to be 45 million.3 The government has not imposed restrictions on internet access, and there have been no reports that the authorities use control over internet infrastructure to limit connectivity. Individuals and groups can engage in peaceful expression of views via the internet using e-mail, instant messaging, chat rooms, and blogs. The video-sharing site YouTube, Facebook, and international blog-hosting services are freely available.
In August 2008, a court ruled that value-added network service (VANS) providers can self-provide, ending a long battle by the industry against the Department of Communications. It is expected that this will lead to more competition in the internet-access sector. In addition, compulsory partial ownership of communications companies by black shareholders, as part of the government’s Black Economic Empowerment policy, is expected to further advance diversification in the ownership of internet-service providers (ISPs).
The autonomy of the Independent Communications Authority of South Africa (ICASA) is protected by law, and there have been no reports of government interference with its decisions. It has been accused of favoring Telkom SA, but in at least one instance it defied the minister of communications on a regulatory issue and was subsequently supported by a court ruling. Access providers and other internet-related groups are self-organized and quite active in lobbying the government for better regulations.
Limits on Content
There have been no reports of state censorship of internet content, with the exception of pornography. In September 2006, the government notified sites hosted in South Africa that they must cease publication of pornography by the end of that year or face criminal action under the Film and Publications Act of 1996. The vast majority of pornographic sites have since complied and removed the offending content, but some remains. A revised version of the Film and Publications Act was recently sent back to Parliament by the president. There is some concern that the law could be used to censor other kinds of online content, though this has yet to happen.4
The government does not restrict material on contentious topics such as corruption or human rights. Self-censorship among private individuals and journalists does not appear to be widespread, although employees at state-run media may be an exception. Online expression in general seems to be more open than other forms of communication.
Citizens are able to access a wide range of viewpoints, and there are no government efforts to limit discussion. Online content, however, does not match the diverse interests within society, especially with respect to race and local languages. There are a number of political and consumer-activist websites, though the internet is not yet a key space for social or political mobilization.
The South African blogosphere has been highly active in promotion of AIDS awareness and the discussion of environmental issues, in addition to more general political coverage. Mobile phones are being used for political organization, especially during recent developments, like the establishment of the new political party COPE, a breakaway faction of the African National Congress that has ruled South Africa since the early 1990s.
Print outlets, television, and radio continue to be the main sources of news and information for most South Africans, but there are increasing efforts to extend mainstream news to online platforms, for example by the Times and Mail & Guardian newspapers, which operate affiliated websites.
Violations of Users’ Rights
The constitution guarantees “freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research.” However, it also includes constraints, and freedom does not extend to “propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender, or religion and that constitutes incitement to cause harm.”5 The judiciary in South Africa is independent and has issued at least one ruling protecting freedom of expression online.
Libel is not a criminal offense, but civil laws have been applied to online content. In a recent case, Natasha Tsichlas, the manager of a South African soccer team, sued Touch Line Media for anonymous defamatory posts directed at her on the company’s website, Kick Off. However, the judge found that freedom of speech on the internet would be significantly curtailed if the hosts of discussion boards were required to regulate material posted on their sites by outside parties.6
There have been no reports that the government monitors e-mail or internet chat rooms. Recent legislation potentially allows for extensive monitoring, but this has not yet been implemented. The Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002 (RICA) requires ISPs to retain customer data for an undetermined period of time, and bans any internet system that cannot be monitored. In addition, the Electronic Communications and Transactions Act of 2002 (ECTA) created a legion of inspectors trained to “inspect and confiscate computers, determine whether individuals have met the relevant registration provisions as well as search the Internet for evidence of ‘criminal actions.’”7 There have been no reports to date that these requirements have actually been enforced. Mobile subscribers with postpaid accounts are required to provide extensive personal information to service providers, and the data is then made available to the government. An identification number is legally required for any SIM-card purchase, although this law appears to be enforced unevenly.
The ECTA also requires ISPs to respond to and implement a “Take-Down Notice” regarding illegal content (such as child pornography, material that could be defamatory without justification, or a copyright violation). The law states that ISPs “do not have an obligation to monitor,” exempting them from liability if proscribed content is found on their service but taken down once a notice is received. However, this exemption only applies if the ISPs are members of a recognized representative organization. Five years have passed since the ECTA was incorporated into South African law, but the government has so far failed to recognize any such organization. RICA provides for an “interception direction” that obliges ISPs to send the communications in question to an interception center. However, the law requires judicial oversight and includes guidelines for judges to establish whether the interception is justified in terms of proportionality and narrowly defined standards.
Reports indicate that the government conducts some surveillance of SMS (text messaging) and mobile-phone conversations. The National Communications Centre (NCC) reportedly has the technical capabilities and staffing to monitor both SMS and voice traffic originating outside South Africa.8 Calls from foreign countries to recipients in South Africa can allegedly be monitored for certain keywords; the NCC then intercepts and records flagged conversations. While most interceptions involve reasonable national security concerns, such as terrorism or assassination plots, the system allows the NCC to record South African citizens’ conversations without a warrant.9
There have been no reports of extralegal intimidation targeting online journalists, bloggers, or other digital-technology users by state authorities or any other actor.
4 “Bloggers battle film bill,” New Media Lab, May 8, 2007, http://nml.ru.ac.za/blog/jude/2007/05/08/bloggers-battle-film-bill.html, Accessed on 3/27/2009
5 The Constitution of the Republic of South Africa, May 8, 1996: Bill of Rights: Chapter 2, Section 16.
6 “Tsichlas v. Touch Line Media,” The University of Pretoria, http://www.up.ac.za/academic/law/docs/RVD110_111June_2004.doc ,Accessed December 2008
7 “Internet Censorship Report 2003: South Africa,” APC Africa ICT Policy Monitor, November 10, 2004, http://africa.rights.apc.org/index.shtml?apc=s21817e_1&x=28050, Accessed on 3/27/2009
8 “Every call you take, they’ll be watching you,” IOL, August 24, 2008, http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=vn20080824105146872C312228, Accessed on 3/27/2009