Porn Bill is 'unconstitutional'

Internet service providers (ISP) will not give credence to a proposed Bill that would force them and cellular operators to filter all pornography from SA's Internet space.

Deputy home affairs minister Malusi Gigaba has the Justice Alliance of SA (JASA) working on a draft Bill that could see pornography banned from the Internet, and ISPs and cellular operators would be held legally liable if porn slips through the cracks.

However, local ISPs contacted by ITWeb are reluctant to give the new proposal any credence, saying they would only comment if the Bill ended up in Parliament. “It is not a Bill that has been tabled by any part of government, and it would almost certainly not pass constitutional muster,” was the response of one prominent industry representative.

In its current form, the Bill states that any ISP or mobile operator which distributes, or allows the distribution of pornography through the Internet or phone, will be guilty of an offence and can be prosecuted. These companies and their directors can face a fine, or a period of imprisonment of up to five years.

Steven Ambrose, MD of WWW Strategy, says the proposed Bill is ludicrous and will be exceptionally difficult for local ISPs and mobile operators to implement. “It is ill-conceived, and without a Great Wall of China set-up, completely impossible to pull off,” he adds.

He says that, as it stands, the Bill is unconstitutional and will be open to challenge in South African courts. “It's a nice notion, but completely narrow-minded.”

The proposed draft could mean a hefty financial outlay by service providers, specifically since the Bill indicates the cost will have to be carried by them, keeping government wallets safe.

It has also imposed a double standard, since bricks-and-mortar adult shops will still be allowed to distribute pornography at their leisure.

It has always been illegal to distribute child pornography in SA; however, adult consented porn is legal for consumption, as long as the recipient is over 18. The stance of JASA and the deputy minister - that the Internet makes it much easier for children to get their hands on adult content - and the proposed Bill is aimed at curbing that.

“Some ask why Internet pornography is worse than print, DVD or TV? The answer is found in the three As: Anonymity, Availability and Accessibility. It is easy for a child or teenager to view without anybody knowing. In the real world, pornography is kept at a safe distance from children. In the online world, pornographic sites are often parked deliberately next door to educational sites, often with names almost identical,” the draft explains.

The deputy minister says: “Cars are already provided with brakes and seatbelts; it is not an extra that consumers have to pay for. There is no reason why the Internet should be provided without the necessary restrictive mechanisms built into it.”

Ambrose believes the only way to institute this law will be to implement a massive lockdown on the South African Internet, much like China and Dubai have done. Residents in Dubai have also noted that banned content has often made its way through the barriers, despite the comprehensive efforts and financial outlay to keep it out.

He says the legislation is also short-sighted, since it could hamper the communication minister's vision of universal access by 2020

Australia and New Zealand have implemented similar legislation to prevent pornography from entering the country via the Internet. In the case of Australia, analysts and security experts in the country believe it will not work.

While South African ISPs wait for clarity on whether the Bill will reach Parliament, there are concerns that the draconian legislation will put many ISPs out of business.