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Kenya IGIF 2009

Freedom House Freedom on the Net

Kenya

Population: 38.5 million

Internet Users/Penetration 2006: 1.5 million / 3 percent

Internet Users/Penetration 2008: 3 million / 8 percent

Mobile Phone Users/Penetration 2006: 7.3 million

Mobile Phone Users/Penetration 2008: 11.7 million

Freedom of the Press (2008) Score/Status: 60 / Partly Free

Digital Opportunity Index (2006) Ranking: 153 out of 181

GNI Per Capita (PPP): $1500

Web 2.0 Applications Blocked: No

Political Content Systematically Filtered: No

Bloggers/Online Journalists Arrested: No

Status: Partly Free

Obstacles to Access: 10 (0–25)

Limits on Content: 12 (0–35)

Violations of User Rights: 9 (0–40)

Total Score: 31 (0–100)

Introduction

Use of the internet and mobile telephones is relatively unfettered in Kenya, though a lack of infrastructure, both for the country’s international connection and in rural areas, poses a significant obstacle. A majority of the population was unable to access the internet in 2008 due to the high costs involved, but this is expected to change with the finalization of several broadband initiatives in 2009 and the introduction of technology allowing access via mobile phones, which are fairly widespread. Despite improving access to the internet, an amendment to the Kenya Communications Act of 1998, commonly referred to as the Communications Amendment Act, has raised concerns that online censorship and surveillance might also increase in the coming years. The measure was passed by Parliament in December 2008 and was awaiting the president’s ratification at year’s end.

Obstacles to Access

Access to the internet has been growing in recent years, and there have been no restrictions on advanced applications, but the medium remains beyond the reach of most Kenyans. The latest figures for 2008 indicate that approximately 7.9 percent of the population, or roughly three million people, had access during the year, and the penetration rate has more than doubled over the last two years.¹ The spread of the internet is hampered by a poor telecommunications infrastructure and a lack of electricity, particularly in rural areas. This partly explains the disproportionately high concentration of internet subscribers in two of Kenya’s largest cities, Nairobi and Mombasa. Knowledge of information and communication technologies (ICTs) remains relatively low, and within the context of competing priorities, the cost of internet access is exorbitant for poor households, despite significant drops in prices. As of 2008, Kenya relied on expensive satellite systems to connect the country’s infrastructure with the global internet, but 2009 will mark the introduction of high-speed fiber optic cables to replace this arrangement.² As a result, costs are expected to drop and connection speeds should rise dramatically, making the technology affordable and accessible to larger segments of the population. Some estimates anticipate an increase to 10 million users over the next five years.³

Mobile-phone penetration is significantly higher than internet penetration rates, estimated at nearly 12 million subscribers in 2008.⁴ Moreover, mobile-phone coverage extended to 92 percent of the country. The availability of internet access via mobile phones increased in 2008, as Safaricom, a mobile-phone service provider with 10.1 million users and an 80 percent share of the market, launched internet capabilities in Nairobi in May, with other cities and providers expected to follow in the coming year.⁵

Access to a variety of advanced applications is widespread, with individuals and groups able to engage in free expression of views via e-mail, instant messaging, chat rooms, and blogs. There have been no reports that the government uses control over internet infrastructure to limit connectivity, and Kenyans have free access to the social-networking site Facebook, the video-sharing site YouTube, and the blog-hosting site Blogspot, all of which rank among the 10 most popular sites in the country.⁶

Reform in Kenya’s information and communications sector has led to a new licensing framework—part of a regulatory strategy that has seen a shift from licensing based on a bidding process to open, market-based licensing. Compe­tition has been introduced in most segments of the telecommunications market, with the effect of reducing costs and generally improving the quality of services, particularly mobile-phone services. Four mobile operators have rolled out their networks, though Safaricom still dominates the market.

The independence of a regulatory body called the Communications Commission of Kenya (CCK) is technically enshrined in the Communications Act, but most of the commissioners are government appointees and their independence is limited in practice. Under the Communications Amendment Act, the CCK and not the independent and professional Media Council of Kenya (MCK) would be responsible for regulating both traditional and online media.⁷ In light of Kenya’s recent history, including the banning of live television coverage by the government following the 2007 elections, reservations have been raised regarding the implications for free online speech should the act come into effect. Access providers have formed organizations such as the Kenyan ISP Association and the Kenya Cybercafe Owners to lobby the government for better regulations, lower costs, and increased efforts to improve computer literacy.⁸

Limits on Content

The government does not employ technical filtering or extensive censorship, and citizens are generally able to access a wide range of viewpoints. However, the government engaged in ad hoc efforts during 2008 to limit access to some content, including material related to corruption. In May, there were reports that some government departments were blocking access to the Kenya Anti-Corruption Commission’s online whistleblower reporting facility.⁹ During the postelection violence in early 2008, there were also indications that the government was willing to monitor and censor both internet and mobile-based content that it felt was “inflammatory.”

Though individual internet users generally seem comfortable expressing themselves freely online, mainstream media organizations’ online portals and their correspondents practice some self-censorship. In addition, a number of bloggers and internet users reportedly chose their words with particular care during the postelection violence to avoid being victimized.

Print outlets, television, and radio continue to be the main sources of news and information for most Kenyans, though there are increasing efforts to extend mainstream news to online platforms. For example, the television stations Nation TV and KTN have used YouTube to rebroadcast news clips. Mobile phones and e-mail were used for political organization during the election campaign in 2007, and to spread ethnic hate speech both during and after the campaign period.

The internet is becoming an important forum for vibrant political debate among residents as well as Kenyans living abroad. Blogs were a crucial source for current information, images, and opinions following the ban on live television and radio broadcasts between December 30, 2007, and February 4, 2008. In particular, an online citizen journalism initiative called Ushahidi was launched during the postelection violence. Its initial purpose was to catalog incidents of violence using messages sent by ordinary citizens via their mobile phones or the internet, and to use that information to map out the unfolding events.¹⁰ Since then, Ushahidi has been used for “crowd-source” news gathering in South Africa and the Democratic Republic of Congo.¹¹ Other issues covered by Kenyan bloggers during the year included corporate environmental abuse,¹² accusations of United Nations hypocrisy,¹³ and the debate over women’s reproductive rights.¹⁴

Violations of Users’ Rights

While the constitution protects freedom of expression and the “freedom to communicate ideas and information,” it also grants the government the authority to place restrictions on defamation, privileged information, and state employees “in the interest of defence, public safety, public order, public morality or public health.” Criminal defamation laws remain on the books in Kenya, and in 2008 the authorities used them to intimidate journalists working in traditional media, but there do not appear to have been any cases aimed at online commentators.¹⁵ In a negative development, the Communications Amendment Act was passed in December despite significant opposition from local media workers and international press freedom watchdogs. The measure, if ratified by the president, would give the government broad powers of censorship, including over certain online content.¹⁶ It would also permit the minister of internal security to authorize raids on media houses and confiscation of telecommunications equipment in the name of national security. Other provisions of the act allow for increased retention of data and its use as evidence in court.

During the violence that followed the flawed December 2007 election, the government banned all live radio and television broadcasts and warned Kenyans about circulating news via SMS (text messaging). “The Ministry of Internal Security urges you to desist from sending or forwarding any SMS that may cause public unrest,” read a message that was sent to Safaricom users. This suggested that the government had the capability to monitor mobile-phone usage if necessary, but there have been no reports of blocked mobile-phone access. The government also reportedly monitored internet content during the unrest.¹⁷

There were no reports of extralegal intimidation of journalists, bloggers, or other ICT users by state authorities or any other actor during the coverage period, though the general atmosphere of intimidation and fear surrounding the postelection violence affected online commentators as well as traditional journalists.

1 International Telecommunications Union, http://www.itu.int/ITU-D/icteye/Default.aspx

2 “Internet: Last piece of fibre-optic jigsaw falls into place as cable links east Africa to grid”, The Guardian, August 18, 2008, www.guardian.co.uk/technology/2008/aug/18/east.africa.internet accessed on March 26, 2009

3 “ Kenyan firms scramble for share of internet market”, Daily Monitor, February 26, 2009, www.monitor.co.ug/artman/publish/business/Kenyan_firms_scramble_for_share_of_internet_market_80502.shtml accessed on March 26, 2009

4 International Telecommunications Union, http://www.itu.int/ICT-D/icteye/default.aspx

5 “Kenya’s Safaricom says to launch 3G service in April”, Reuters, April 3, 2008, http://in.reuters.com/article/asiaCompanyAndMarkets/idINL0339992220080403 accessed on March 26, 2009; and “Safaricom launches 3G technology”, Network World, May 27, 2008, http://www.networkworld.com/news/2008/052708-safaricom-launches-3g.html accessed on March 26, 2009

6 “The 10 Most Popular Sites in Kenya”, Moses Kemibaro, March 14, 2008, http://moseskemibaro.com/?p=19 accessed on March 26, 2009

7 “Government enacts Draconian law to regulate media content, gives authorities broad powers of surveillance”, IFEX, December 15, 2008, www.ifex.org/en/content/view/full/99330/ accessed on March 26, 2009

8 “Kenyan cyber café owners get together to lobby government”, Balancing Act News Update, www.balancingact-africa.com/news/back/balancing-act_96.html accessed on March 26, 2009

9 “The Kenya Anti Corruption Commission & Internet Censorship in Kenya-An Exercise in Futility”, Mars Group Kenya, May 29, 2008, http://www.marsgroupkenya.org/user/?p=110; http://wikileaks.org/wiki/Anti-corruption_whistleblowing_website_blocked_by_Kenyan_Government accessed on March 26, 2009

10 Ushahidi, www.ushahidi.com/about accessed on March 26, 2009

11 “Citizen Voices”, Forbes, December 8, 2008, http://www.forbes.com/free_forbes/2008/1208/083.html accessed on March 26, 2009

12 “Environment: Dirty Dealings and Water Masses”, Global Voices, December 1, 2008, http://globalvoicesonline.org/2008/12/01/environment-dirty-dealings-and-water-masses/ accessed on March 26, 2009

13“Yellow Humvees and the UN Procurement Scandal”, Global Voices, November 18, 2008, http://globalvoicesonline.org/2008/11/18/yellow-humvees-and-the-un-procurement-scandal/ accessed on March 26, 2009

14 “Kenya: Reproductive Rights Bill Sparks Abortion Debate”, Global Voices, August 28, 2008, http://globalvoicesonline.org/2008/08/28/kenya-reproductive-rights-bill-sparks-abortion-debate/ accessed on March 26, 2009

15 “2008 Human Rights Report: Kenya”, U.S. Department of State, February 25, 2009, www.state.gov/g/drl/rls/hrrpt/2008/af/119007.htm accessed on March 26, 2009

16 “Attacks on the Press in 2008: Kenya”, Committee to Protect Journalists, www.cpj.org/2009/02/attacks-on-the-press-in-2008-kenya.php accessed on March 26, 2009

17 “2008 Human Rights Report: Kenya”, www.state.gov/g/drl/rls/hrrpt/2008/af/119007.htm accessed on March 26, 2009

Malyasia IGIF 2009

Freedom House Freedom on the Net

Malaysia

Population: 27 million

Internet Users/Penetration 2006: 11 million / 39 percent

Internet Users/Penetration 2008: 15 million / 56 percent

Mobile Phone Users/Penetration 2006: 19.5 million

Mobile Phone Users/Penetration 2008: 23.7 million

Freedom of the Press (2008) Score/Status: 65 / Not Free

Digital Opportunity Index (2006) Ranking: 57 out of 181

GNI Per Capita (PPP): $13,600

Web 2.0 Applications Blocked: No

Political Content Systematically Filtered: No

Bloggers/Online Journalists Arrested: Yes

Status: Partly Free

Obstacles to Access: 8 (0–25)

Limits on Content: 12 (0–35)

Violations of User Rights: 20 (0–40)

Total Score: 40 (0–100)

Introduction

Freedom of the internet and digital media in Malaysia has grown in the past two years, as the government has encouraged increased access, and information and communications technologies (ICTs) have been playing a greater role in political mobilization and participation. The most notable trends have been the growing population of bloggers in the country and the increased use of video-sharing websites, such as YouTube, to spread political messages, especially in the run-up to the country’s 12^th general election on March 8, 2008. However, this expansion has encountered some obstacles. Several bloggers have been arrested or faced defamation charges under vaguely worded legislation, raising concerns that traditional press freedom restrictions may spill over into cyberspace.

Malaysia’s first internet service provider (ISP), Jaring, was inaugurated in 1992 by the Malaysian Institute of Microelectronic Systems¹ (MIMOS), with an initial group of 28 subscribers. The growth of internet in Malaysia has since been steady and incremental, driven in large part by state-guided initiatives that were rolled out every two to three years.

Obstacles to Access

Malaysia has a relatively high degree of internet penetration, with approximately 15 million users—more than half of the total population of 27 million—as of 2008.² There are currently 21 ISPs operating in the country, most of them privately owned. The three private mobile-telephone service providers are Maxis Communications, Celcom, and Digi.com, which control 42 percent, 32 percent, and 26 percent of the market, respectively.³ Malaysians can access the internet through home connections, mobile phones, or cybercafes.

While the country was an early adopter of the internet and has pioneered some of the first ICT regulatory frameworks in the region, especially through the Multimedia Super Corridor (MSC) project, online access remains very much an urban phenomenon. There is a clear urban-rural gap, with more than 80 percent of internet users living in urban areas.⁴ A similar gap persists in mobile-phone usage, with rural residents accounting for just 22 percent of the country’s users.⁵ However, according to the Malaysian Communications and Multimedia Commission (MCMC), the national mobile-phone penetration rate was 93.9 percent in 2008, much higher than the internet-penetration figure.⁶ The spread of mobile-phone access, including in rural areas, has made SMS (text messaging) an increasingly important factor in the Malaysian political landscape.⁷

In recent years, the Malaysian government has been particularly aggressive in promoting broadband access, and the country is now home to more than 1.4 million broadband users.⁸ Indeed, in October 2008 the Energy, Water, and Communications (EWC) Ministry threatened to revoke the WIMAX (Worldwide Interoperability for Microwave Access) licenses of companies that failed to roll out the service within the prescribed timeframe.⁹ The cost of internet access is reasonable relative to the gross national income (GNI) per capita of $6,540.¹⁰ A broadband connection package (1 megabit per second/384 kilobits per second) offered by the largest ISP in the country cost the average consumer around $25 per month in 2008.¹¹ Any package slower than a broadband connection is significantly cheaper. User-generated-content websites such as YouTube, social-networking sites like Facebook, and blog-hosting services including Blogspot.com and Wordpress.com are freely available.

Currently the internet falls under the immediate purview of the MCMC, a regulatory body that answers to the EWC minister. Both the MCMC and the ministry are guided by the 1998 Communication and Multimedia Act (CMA), which gives the EWC minister a wide range of licensing and other powers. Under the CMA, a license is required to own and operate a network facility. There have not been any reported denials of ISP license applications, but the licensing process could be a form of control, and the owners of major ISPs and mobile-phone service providers often have connections to the government. Of the two largest ISPs, TMnet and Jaring, the former is a subsidiary of the privatized national phone company Telekom Malaysia, and the latter is wholly owned by the Ministry of Finance. Maxis Communications, the largest mobile-phone service provider, was the founded by Ananda Krishnan, who also owns the largest satellite broadcaster and enjoys close ties to former prime minister Mahathir Mohamad. The state government in Selangor imposed a freeze on new applications for cybercafes, but it was lifted in January 2008 after 38 months. The freeze was imposed primarily due to the widespread use of cybercafes as illegal gambling and gaming centers that operate at late hours and attract a predominantly school-age clientele, as opposed to a deliberate restriction on public access to the internet.¹²

Limits on Content

The Malaysian government does not employ any known filtering technology to actively censor internet content or limit internet communications. There are no specific laws aimed at limiting or censoring the internet, and a provision of the CMA explicitly states that nothing in the act “shall be construed as permitting the censorship of the Internet.” The MSC Bill of Guarantees also promises no censorship of the internet. However, the extensive powers available to the government under older laws such as the Sedition Act, the Official Secrets Act (OSA), and the Internal Security Act (ISA) are likely to encourage self-censorship among internet users.

The government has generally upheld its promises on direct censorship, except in the case of the MCMC’s decision to block the controversial website MalaysiaToday. The site, a news-aggregating portal founded by Raja Petra Kamarudin, has been very critical of the ruling party. On August 28, 2008, the MCMC ordered all major ISPs to block MalaysiaToday. Home Minister Syed Hamid Albar justified the move by citing Sections 263 and 233 of the CMA, which penalize “improper use of facilities or network services.”¹³ The ban was repealed by the cabinet two weeks later, but EWC Minister Shaziman Abu Mansor argued that the reversal was acceptable because there were other, “harsher” laws available, including the Internal Security Act and the Sedition Act. Along with the ban on MalaysiaToday, the MCMC also lifted bans on about 100 other websites that had previously been blocked due to pornography or financial scams. There are no other known websites being banned, filtered, or blocked by the government. However, users continue to be discouraged from expressing views related to sensitive or “red-line” issues such as Islam’s official status, race, and the special rights enjoyed by bumiputera (ethnic Malays and other indigenous people, as opposed to ethnic Chinese and Indian minorities).

There is a vibrant blogosphere in Malaysia. Currently the dominant language of blogging is English, with Malay used to a lesser extent. This may be attributed to the nature of the user base, which consists largely of highly educated urban professionals who are more comfortable with the English language. Many civil society groups have an online presence, but in some cases their websites are not regularly updated. All mainstream news outlets have corresponding websites that mirror the print format and do not deviate from progovernment editorial policies.

Political parties have been able to use the internet to disseminate political messages and to mobilize the people. This was illustrated in the March 2008 general election, and also in the mounting of numerous public rallies and protests. Three of the country’s largest telecommunications companies reportedly experienced a surge in SMS traffic during nomination day on February 24, and polling day on March 8.¹⁴ Videos of political speeches and public protests were widely distributed on the internet through blogs and video-sharing websites. In 2006, an incident involving an anonymous video clip shot using a mobile phone—dubbed the “nude ear-squat case”—prompted an investigation by a royal commission into police operating procedures on body searches of detainees.

Violations of Users’ Rights

Although the current government has been active in trying to eliminate infrastructural and economic obstacles to internet access and does not filter online content, there have been major violations of user rights. Certain provisions in the MSC Bill of Guarantees¹⁵ and the CMA¹⁶ offer some protections, but the authorities have been able to circumvent them by making arbitrary arrests under preexisting laws. This is part of a larger phenomenon in which the laws governing freedom of expression in more traditional media have begun to spill over into cyberspace.

Defamation charges have been filed against bloggers in Malaysia, most notably Ahirudin Attan and Jeff Ooi in January 2007. They were targeted by the progovernment media conglomerate NSTP Group, prompting the establishment of the National Alliance of Bloggers (All-Blogs). The case is currently in a state of limbo, with neither side actively pursuing it. More recently, blogger Raja Petra Kamarudin was served with criminal defamation charges by two military officers who objected to being implicated in the politically charged murder of a Mongolian model.¹⁷ In May 2008, he was arrested under the Sedition Act for an article linking Deputy Prime Minister Najib Abdul Razak and his wife to the murder.¹⁸ Raja Petra was then arrested in September 2008 under the ISA, which allows indefinite detention without trial. He was released in November after the High Court ruled that the detention was unconstitutional. Raja Petra had previously been arrested under the ISA in 2001, and he was interrogated by the police for eight hours in July 2007 for allegedly insulting the monarchy and Islam on his blog.¹⁹

In July 2007, the police arrested blogger Nathaniel Tan under the OSA.²⁰ Tan, an assistant to opposition leader Anwar Ibrahim at the time, was held responsible for the comments posted on his blog site. He was remanded for four days and subsequently released. Yet another blogger, Syed Azidi Syed Aziz, was arrested under the Sedition Act in September 2008 for inciting his readers to fly the Malaysian flag upside down.²¹

In August 2007, a parody of the national anthem on the video-sharing website YouTube was posted by university student and musician Wee Meng Chee, also known as NameWee. In response, Mohammed Nazri Abdul Aziz, then a minister in the Prime Minister’s Department, called for actions to be taken “against YouTube and bloggers for posting images and content that overstepped the boundaries on sensitive issues.”²² Wee, who was studying in Taiwan at the time, apologized for the controversy he had caused.

The EWC minister reportedly said in September 2008 that the MCMC had formed a committee comprised of the police, officials from the attorney general’s office, and representatives of the Home Ministry to monitor websites and blogs.²³ It is unclear to what extent these monitoring efforts have been implemented. There has been no known effort at surveillance of mobile-phone usage. Beginning in 2007, all mobile users, including roughly 18 million prepaid users, were required to register as part of an effort to decrease rumor-mongering activities via SMS.²⁴ It would appear, however, that such registration measures have been weakly enforced. Users in cybercafes are not required to register.

While bloggers, online journalists, and other ICT users are subject to arbitrary arrest, they generally do not face extralegal intimidation or physical violence. Still, some bloggers have reported receiving threatening messages from anonymous users. Of the bloggers arrested between 2006 and 2008, none were reported to have been abused physically while in custody.

1 MIMOS History, http://www.mimos.my/index.php?sub=2&ma=36, accessed March 20, 2009

2 Household use of the Internet Survey 2008, http://www.skmm.gov.my/Admin/WhatIsNew/CCD09/HUIS2008.pdf, accessed March 20, 2009

3 The Star, “Celcom’s about-turn success,” February 28, 2009, http://biz.thestar.com.my/news/story.asp?file=/2009/2/28/business/3367612&sec=business, accessed March 20, 2009

4 Communications and Multimedia Selected Facts and Figures 2008 Q1, http://www.skmm.gov.my/facts_figures/stats/index.asp, accessed March 20, 2009

5 Handphone user survey in 2007, http://www.skmm.gov.my/facts_figures/stats/pdf/Handphone_Users_Survey_2007.pdf, accessed March 20, 2009

6 Cellular phones in Malaysia, http://www.skmm.gov.my/facts_figures/stats/ViewStatistic.asp?cc=13949228&srid=9247989, accessed March 20, 2009

7 Cellular phones in Malaysia, http://www.skmm.gov.my/facts_figures/stats/ViewStatistic.asp?cc=13949228&srid=9247989, accessed March 20, 2009

8 Number of broadband subscriptions by technology, http://www.skmm.gov.my/facts_figures/stats/ViewStatistic.asp?cc=82923074&srid=36429996, accessed March 20, 2009

9 Syarikat gagal tawar WiMax hadapi kemungkinan ditarik balik lessen,

http://www.utusan.com.my/utusan/info.asp?y=2008&dt=1028&pub=utusan_malaysia&sec=Terkini&pg=bt_10.htm&arc=hive, accessed March 30, 2009

10 Country Snapshot - Malaysia, http://rru.worldbank.org/BESnapshots/Malaysia/default.aspx, accessed March 20, 2009; figure not at Purchasing Power Parity (PPP)

11 TMNet Website, http://www.streamyx.com.my/get_streamyx/get_streamyx.php?id=getstreamyx_package_standard, accessed March 20, 2009

12 The Star, “Abide by guideline on cyber café,” January 21, 2008, http://thestar.com.my/metro/story.asp?file=/2008/1/21/central/20059112&sec=central, accessed March 20, 2009

13 The Star, “Syed Hamid tells why Malaysia Today was blocked,” August 29, 2008, http://thestar.com.my/news/story.asp?file=/2008/8/29/nation/22194389&sec=nation, accessed March 20, 2009

14 The Star, “Surge in SMS traffic on election day,” March 30, 2008, http://thestar.com.my/news/story.asp?file=/2008/3/30/focus/20788837&sec=focus, accessed March 20, 2009

15 MSC Malaysia 10-Point Bill of Guarantees, http://www.mscmalaysia.my/topic/MSC+Malaysia+Bill+of+Guarantees, accessed March 20, 2009

16 Communication and Multimedia Act 1998, http://www.skmm.gov.my/mcmc/the_law/NewAct/Act%20588/Act%20588/a0588.htm, accessed March 20, 2009

17 “Blogger Raja Petra Sued By Two Army Personnel Implicated In His Statutory Declaration,” Bernama, July 22, 2008, http://www.bernama.com.my/bernama/v3/news.php?id=347708, accessed March 20, 2009

18 The Sun Daily, “Blogger charged with sedition,” May 6, 2008, http://www.thesundaily.com/article.cfm?id=22064, accessed March 20, 2009

19 The Star, “Webmaster Raja Petra questioned for 8hrs,” July 25, 2007, http://thestar.com.my/news/story.asp?file=/2007/7/25/nation/20070725205852&sec=nation, accessed March 20, 2009

20 The Star, “Nathaniel Tan remanded for four days under OSA,” July 14, 2007,

http://thestar.com.my/news/story.asp?file=/2007/7/14/nation/20070714182404&sec=nation, accessed March 20, 2009

21 The Star, “Blogger Sheih Kickdefella under 24-hour remand,” September 19, 2008, http://thestar.com.my/news/story.asp?file=/2008/9/19/courts/2064905&sec=courts, accessed March 20, 2009

22 The Sun Daily, “Who is sorry now?” August 16, 2007, http://www.thesundaily.com/article.cfm?id=19009, accessed March 20, 2009

23 The Star, “Existing laws to deal with websites that cause unease,” September 12, 2008, http://www.thestar.com.my/news/story.asp?file=/2008/9/12/nation/2010044&sec=nation, accessed March 20, 2009

24 “Dec 15 Registration Deadline Stays: MCMC,” August 18, 2006, http://www.bernama.com.my/bernama/v3/news.php?id=214811, accessed March 20, 2009

South Africa IGIF 2009

Freedom House Freedom on the Net

South Africa

Population: 48.8 million

Internet Users/Penetration 2006: 3.7 million / 8 percent

Internet Users/Penetration 2008: 4 million / 8 percent (Note: relates to access via computer; an estimated 9.5 million / 19 percent accessed via mobile phone)

Mobile Phone Users/Penetration 2006: 39.7 million

Mobile Phone Users/Penetration 2008: 45 million

Freedom of the Press (2008) Score/Status: 28 / Free

Digital Opportunity Index (2006) Ranking: 86 out of 181

GNI Per Capita (PPP): $9,600

Web 2.0 Applications Blocked: No

Political Content Systematically Filtered: No

Bloggers/Online Journalists Arrested: No

Status: Free

Obstacles to Access: 6 (0–25)

Limits on Content: 7 (0–35)

Violations of User Rights: 8(0–40)

Total Score: 21 (0–100)

Introduction

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.

1 ITU, http://www.itu.int/ITU-D/icteye/Default.aspx, Accessed on 3/27/2009

2 “Mobile surpasses traditional web in South Africa”, Matthew Buckland, November 19, 2008, www.matthewbuckland.com/?p=573, Accessed on 3/27/2009

3 ITU, http://www.itu.int/ITU-D/icteye/Default.aspx Accessed on 3/27/2009

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

9 ibid.

Survey Team - IGIF 2009

Freedom House Freedom on the Net

Survey Team

Contributing Authors

Yaman Akdeniz is an associate professor at the CyberLaw Research Unit, School of Law, University of Leeds (UK) where he teaches and writes mainly about internet related legal and policy issues. He is also the founder and director of Cyber-Rights & Cyber-Liberties, a non-profit civil liberties organization. He has acted as an expert to the United Nations High Commissioner for Human Rights (UNHCHR) and published extensively on topics related to policing the internet. He is a graduate of the University of Leeds (PhD). He served as the analyst for Turkey and the United Kingdom.

Raman Jit Singh Chima is currently completing a degree in Arts and Law from the National Law School of India University, Bangalore. He has clerked for the Honorable Justice V.S. Sirpurkar of the Supreme Court of India, and is Chief Editor of the Indian Journal of Law and Technology. He was a Sarai-CSDS Independent Research Fellow in 2007, examining the regulation of the Internet by the Indian state. He served as the analyst for India.

Ming Kuok Lim is an advanced doctoral student in the College of Communications at Penn State University. His research focuses on the relationship between the use of new media, such as blogging, and the development of democracy. He has conducted a series of interviews with prominent bloggers in Malaysia and has served as an analyst for Freedom in the World for Singapore and Malaysia. He served as the analyst for Malaysia.

Mariam Memarsadeghi advises human rights and democracy promotion organizations internationally and is an outspoken advocate for women’s rights and civil liberties in Islamic contexts.  She is an expert on free media, internet freedom and internet initiatives for repressive regime contexts and founded the bi-lingual web magazine Gozaar: A Journal on Democracy and Human Rights in Iran while serving as Senior Program Manager at Freedom House. She has studied political science and political theory at Dickinson College (BA) and the University of Massachusetts, Amherst (MA) and is fluent in English and her native Persian. She served as the analyst for Iran.

Ory Okolloh is a lawyer, a political activist and blogger. She is the co-founder of Mzalendo, a website that tracks the performance of Kenyan Members of Parliament, and the co-founder of Ushahidi. She is a frequent speaker at conferences including TED Global and Poptech on issues around citizen journalism, the role of technology in Africa, and the role of young people in reshaping the future of Africa. Ms. Okolloh graduated summa cum laude with a B.A. degree in Political Science from the University of Pittsburgh, and graduated with a J.D. from Harvard Law School. She also writes one of the most popular blogs in the Kenyan sphere at Kenyan Pundit. She served as the analyst for Kenya and South Africa.

Giorgi (Giga) Paitchadze is the founder of the Georgian NGO New Media Institute, a veteran blogger, and political analyst. He has served as a trainer and educator in blogging and new media and as the organizer of the Caucasus BarCamp – a weekend retreat and educational training camp for bloggers from the Caucasus region. He is also the founder of Georgia’s first social networking site, face.ge. He holds a postgraduate degree in International Relations and International Law (LL.M.). He served as the analyst for Georgia.

Carolina Rossini is a Fellow at the Berkman Center at Harvard University and also coordinates a project on policy for Open Educational Resources in Brazil with the Open Society institute. She holds positions at the Diplo Foundation as a fellow for the Internet Governance Program and at IQSensato as a Research Associate for the Access to Knowledge and Innovation Program. She is a Brazilian lawyer and a law lecturer, and was part of Brazilian Creative Commons team at Fundacao Getulio Vargas Law School, where she coordinated the Legal Clinical Program and the CC Latin America chapter of the Open Business project. Before moving to academic life, Ms. Rossini acted as in-house counsel for the Telefonica Telecommunications Group in Brazil focus in internet and telecom services. She served as the analyst for Brazil.

Alexey Sidorenko received his MA in Geography from Moscow State University and is currently based at Warsaw University. He is working on both a PhD in geography at Moscow and an MA in cultural studies at Warsaw. Both dissertations are dedicated to the juncture of politics, ICT and regional studies on the post soviet space. He worked for three years in Moscow for the Carnegie Centre, as a research assistant for the projects "Society and Regions" and "Russian Domestic Politics and Political Institutions". He is interested in electoral geography, cybergeography and in the internet and political representation in Russia, Eastern Europe, Caucasus and Central Asia. He served as the analyst for Russia.

Linnar Viik is an Estonian information society and innovation analyst and lecturer. He has worked part-time as Adviser to the Prime Minister of Estonia on Information Technology and Research & Development, and as the Head of the Secretariat of the Research and Development Council of the Government of Estonia and is also Member of Estonian Research and Development Council and Information Society Board. He received degrees in IT management and international economics at Tallinn Technical University and the University of Helsinki. He has published over 150 articles and research papers. He served as the analyst for Estonia.

The analysts for the reports on China, Cuba, Egypt and Tunisia are independent internet researchers who have requested to remain anonymous.

Ratings Review Advisers

Jon B. Alterman is director of the Middle East Program at the Center for Strategic and International Studies in Washington, D.C. He received his PhD in history from Harvard University, and he has worked on the personal staff of Senator Daniel Patrick Moynihan and on the policy-planning staff at the U.S. Department of State. He is the author of New Media, New Politics?: From Satellite Television to the Internet in the Arab World. 

David Banisar is Director of the Freedom of Information Project of Privacy International in London. He is also a Non-Resident Fellow at the Center for Internet and Society at Stanford Law School and a Visiting Research Fellow at the School of Law, University of Leeds. Previously he was a Research Fellow at Information Infrastructure Project at the Kennedy School of Government at Harvard University and a co-founder and Policy Director of the Electronic Privacy Information Center in Washington, DC. He has worked in the field of information policy for seventeen years and is the author of books, studies, and articles on freedom of information, freedom of expression, media policy, whistleblowing, communications security, and privacy.

Guy Berger is head of the School of Journalism & Media Studies at Rhodes University, Grahamstown, South Africa. He is editor of the book Media Legislation in Africa (2007), published by UNESCO, and was keynote speaker at a UNESCO conference on Press Freedom and New Media in the same year. In 1995, he founded the Rhodes school's New Media Lab which in turn initiated what has become the world's largest annual gathering of African journalists. In 2008, Berger also raised R8m from the Knight Foundation and MTN towards research into the articulation of cell phones and the media industry. He writes a fortnightly media column for South Africa's leading independent newspaper.

Floriana Fossato has studied Russian literature, politics and society in Italy, Moscow and at University College London and lived and worked in Russia for more than a decade. She was a research associate at the Reuters Institute for the Study of Journalism at Oxford University for the project The Web That Failed: How opposition politics and independent initiatives are failing on the Internet in Russia. Beginning in 2009 she will be involved in a EU funded project on Media in Armenia, Azerbaijan and Georgia.

Shanthi Kalathil is an expert on media, civil society, and democratization. She is currently acting as a consultant to the Communication for Governance and Accountability Program (CommGAP) at the World Bank, a new initiative that seeks to explore the role of the public sphere—incorporating plural and independent media systems, the free flow of information, and free debate and discussion—in securing good governance and accountability. She was formerly a senior democracy fellow based in the Office of Democracy and Governance at the U.S. Agency for International Development, where she provided policy and programmatic advice on issues relating to civil society, media, and the Near East/Asia region, and an associate at the Carnegie Endowment for International Peace, where she co-authored Open Networks, Closed Regimes: The Impact of the Internet on Authoritarian Rule, a widely cited, reviewed and translated volume on the political effect of the internet. She holds a B.A. from the University of California at Berkeley and an M.Sc. from the London School of Economics and Political Science, and is fluent in Mandarin.

Daniel Kimmage received his undergraduate education at the State University of New York at Binghamton and earned an M.A. in Russian and Islamic history from Cornell University. From 1997-2001, Kimmage lived in St. Petersburg, Russia, where he was the English-language editor of the quarterly journal Manuscripta Orientalia at the Institute of Oriental Studies. From 2003 to 2008, Kimmage was a regional analyst at Radio Free Europe/Radio Liberty, where he focused on politics, business, and media issues in Central Asia and Russia. His work has appeared in The New York Times, The New Republic, Foreign Policy and Slate. He is currently an independent consultant based in Washington, DC.

Sudhir Krishnaswamy is an Assistant Professor at the National Law School of India University. He graduated from the National Law School Bangalore in 1998 and went on to complete the Bachelor in Civil Law and the Doctorate in Philosophy of Law at Oxford University at the University of Oxford on a Rhodes scholarship. His research interests include constitutional and administrative law, property and intellectual property law, legal theory and the reform of legal systems. He is the Chief Editor of the International Journal of Communications Law and Policy and was an editor of the Oxford University Commonwealth Law Journal.

Xiao Qiang is the Director of China Internet Project and an adjunct professor at the Graduate School of Journalism, University of California, Berkeley. He is the Founder and Editor-in-Chief of China Digital Times, a bi-lingual China news website. A theoretical physicist by training, he studied at the University of Science and Technology of China and entered the PhD program (1986-1989) in astrophysics at the University of Notre Dame. He became a full time human rights activist after the Tiananmen Square protests of 1989. He was the Executive Director of the New York-based NGO Human Rights in China from 1991 to 2002 and vice-chairman of the steering committee of the World Movement for Democracy. He is a recipient of the MacArthur Fellowship in 2001, and is profiled in the book Soul Purpose: 40 People Who Are Changing the World for the Better. He researches and writes about state online censorship and propaganda, emerging "Citizen Blogging" movement, and network activism in Chinese cyberspace.

Katitza Rodríguez is the Director of EPIC´s International Privacy Project and Coordinator of The Public Voice Coalition where she concentrates on comparative policy and legal aspects of privacy and data protection and is in charge of liaising with data protection authorities, policymakers, consumer and civil society organizations around the world. She is also Research Director for the "Privacy and Human Rights Report (PHR) 2008," (forthcoming) the most comprehensive survey of privacy laws and developments in the world. She was responsible for facilitating the participation of Civil Society in the Organisation for Economic Co-operation and Development (OECD) Ministerial in Seoul, Korea as well as the organization of the OECD Civil Society Forum.

Bridget Welsh is associate professor in the Southeast Asia Studies Program at Johns Hopkins University-SAIS. Her primary research interest focuses on 20th century Southeast Asian politics. She is the former chair of the Malaysia, Singapore, Brunei Studies Group and the editor of Reflections: The Mahathir Years (Johns Hopkins University Press, 2004) and co-editor of Legacy of Engagement in Southeast Asia (Institute of Southeast Asian Studies, 2008). She is currently completing an analysis of Malaysian voting behavior and the electoral system during the last ten years and a project examining the local dynamics in elections. She received her PhD from the Department of Political Science at Columbia University, and her MA from Columbia University.

Expert Methodology Committee

Jon B. Alterman is director of the Middle East Program at the Center for Strategic and International Studies in Washington, D.C (see above for full bio).

Derrick Cogburn is an expert on global information and communication technology (ICT) policy and in the use of ICTs for socio-economic development. He is currently an assistant professor at the Syracuse University School of Information Studies and senior research associate at the Moynihan Institute of Global Affairs at the Maxwell School of Citizenship & Public Affairs. He also directs the Collaboratory on Technology Enhanced Learning Communities (Cotelco), an award-winning social science research collaboratory investigating the social and technical factors that influence geographically distributed collaborative knowledge work, particularly between developed and developing countries.  Additionally, he is also a faculty affiliate with the Convergence Center, a member of the Internet Governance Project, and is a faculty member of the Syracuse University Africa Initiative.

Sarah Cook is an Asia researcher at Freedom House and Assistant Editor for the Freedom on the Net index. She has served as assistant to the editor of the 2008 Freedom of the Press index and analyst for both that publication and Freedom in the World. Her research has covered human rights and media developments in East Asia, Indochina, and the Middle East, including recent fact-finding trips to Hong Kong and Taiwan. She has also been a country report author on China for a recent Freedom House publication on the status of freedom of association. Before joining Freedom House, she co-edited the English translation of A China More Just, a memoir by prominent rights attorney Gao Zhisheng, and was twice a delegate to the United Nations Human Rights Commission meeting in Geneva for an NGO working on religious freedom in China. She received a B.A. in International Relations from Pomona College and as a Marshall Scholar, completed Masters degrees in Middle East Politics and Public International Law at the School of Oriental and African Studies in London.

Robert Guerra is the Project Director of Freedom House's Global Internet Freedom Initiative. The initiative aims to analyze the state of internet freedom, to expand the use of anti-censorship technologies, to build support networks for citizens fighting against online repression and to focus greater international attention on the growing threats to users’ rights. He is also one of the founding directors of Privaterra - an ongoing project of Tides Foundation Canada that works with nongovernmental organizations to assist them with issues of data privacy, secure communications, information security, Internet Governance and internet Freedom. He advises numerous non-profits, foundations and international organizations and is often invited to speak at events to share the challenges being faced by social justice organizations in regards to surveillance, censorship and privacy.

Leslie Harris is the President and CEO of the Center for Democracy & Technology where is responsible for the overall vision, direction and management of the organization and serves as the organization’s chief spokesperson. Since joining CDT, she has been involved with a wide range of issues related to civil liberties and the internet, including, government data-mining for counterintelligence, government secrecy, privacy, global internet freedom, intellectual property, data security and internet censorship. She testifies before Congress on issues related to technology, the internet and civil liberties and writes, speaks on internet issues and is regular contributor to several online publications and blogs. She received her law degree from the Georgetown University Law Center and her BA at the University of North Carolina at Chapel Hill.

Shanthi Kalathil is a consultant to the Communication for Governance and Accountability Program (CommGAP) at the World Bank (see above for full bio).

Daniel Kimmage is currently an independent consultant based in Washington, DC and an expert in Russia and Central Asia (see above for full bio).

Karin Deutsch Karlekar is the managing editor of Freedom of the Press, an annual survey that tracks trends in media freedom worldwide and served as managing editor for Freedom on the Net. She coordinates the research, ratings, and editorial processes for the survey, and also writes a number of the country reports. In addition, she has conducted research and assessment missions to Nigeria, Afghanistan, Sri Lanka, and Pakistan, and has traveled extensively in Asia and Africa. She regularly serves as the spokesperson for Freedom House on media and press freedom issues, and has been quoted extensively in U.S. and foreign media outlets. For the past five years, she has represented Freedom House in the International Freedom of Expression Exchange (IFEX) network, and in February 2006 was elected as IFEX Convenor and head of IFEX's governing Council. Prior to joining Freedom House, Dr. Karlekar was a Deputy Editor for the electronic division for the Economist Intelligence Unit and also served as a consultant to Human Rights Watch. She holds a Ph.D. in Indian History from Cambridge University, England.

Christopher Walker is Director of Studies at Freedom House where he helps oversee a team of senior analysts and researchers in devising overall strategy for Freedom House's analytical publications. He is responsible for generating special studies and reports, conducting briefings, and responding to critical news and democracy issues through statements and op-eds. Before joining Freedom House, he worked at the EastWest Institute. He is also an Adjunct Assistant Professor of Global Affairs at New York University and has contributed to a wide range of publications. He received his undergraduate degree from Binghamton University, State University of New York, and Master's Degree from Columbia University's School of International and Public Affairs.