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Citizens reject 'Internet Censorship Act’, threaten court action

Sibahle Malinga
By Sibahle Malinga, ITWeb senior news journalist.
Johannesburg, 16 Sept 2020

A public campaign on the draft Films and Publications Amendment Regulations, run by advocacy non-profit Dear SA, has attracted nearly 14 000 comments, with the overwhelming majority rejecting the Bill as it stands.

In July, communications and digital technologies minister Stella Ndabeni-Abrahams published the new draft regulations to the controversial Films and Publications Amendment Act, dubbed the “Internet Censorship Act”, for public comment in the Government Gazette. The comment period, which lapsed on 17 August, has been extended to mid-October, to allow more South Africans to express their opinion.

The controversial draft regulations seek to make provision for online content distribution, and allow the Film and Publication Board (FPB) to be the final arbiter to determine what forms of expression are allowed or not allowed online.

It also stipulates that commercial online content distributors have to submit content available on their platforms for classification by the FPB, or enter into individual exemption agreements with the FPB.

However, it has caused a public outcry since it was first gazetted as a Bill, with many members of the public calling for it to be overhauled for infringing on freedom of speech.

Opponents of the law had voiced concerns over the vague and broad terminology used; stipulations that would see the FPB overstepping into the Independent Communications Authority of South Africa's regulatory jurisdiction; and that it contains constitutional infringements on citizens' right to privacy and freedom of expression.

According to thousands of responses received by the public participation campaign run by Dear SA, the advocacy group believes that if the regulations are not amended, “it is almost certain that this Bill will be challenged in the Constitutional Court by the public”.

An overwhelming majority of the e-mail responses from local citizens have rejected the Bill with contempt.

“I did not sign up for fascist, communist tyranny,” says one comment.

Another e-mail excerpt notes:“Freedom of speech should be a basic right and any law that has as its aim the removal of this right should be viewed with great reservation and suspicion; it is one step away from a police state.”

“Gross overreach,” says another comment.

According to Dear SA, this Bill goes beyond the wildest dreams of apartheid’s information police because of its attempt to extend the arm of the law to virtually anyone expressing an opinion or providing entertainment online.

“Many commentators have expressed alarm at the draconian nature of this regulation and its echoes of the darkest days of apartheid censorship. It seems inconceivable that the drafters of the Bill gave much consideration to the Constitutional protections to freedom of expression, nor to the practical effects of issuing registration certificates to tens of thousands of content producers and before each item of content is published.

“Though the Bill does not on its face appear to infringe political discourse, it is broad enough to conceivably be used in such a manner under a less benign regime,” asserts the advocacy organisation.

Looming court showdown

In September 2019, president Cyril Ramaphosa appended his signature to the controversial Bill, signing it into law – at a time when the country was already knee-deep in questions about the law’s role in inhibiting freedom of speech and whether there are options to it.

While it has been signed into law, the Bill will only become operational upon finalisation of the draft regulations that assist the FPB to implement it.

With SA expected to finalise the regulations before the end of 2020, the Bill has once again come under fierce scrutiny.

Last month, the Free Market Foundation told ITWeb that SA will be in for a “nasty surprise” if the proposed draft regulations come into effect.

The independent public benefit organisation warned that if the Bill does not receive enough resistance from the public, it could soon become operative, resulting in civil society taking legal action against government.

“In a free society, such as SA, it should not be up to government to decide what people may or may not say or think – freedom means people may say things that are deeply offensive or problematic to others, and that violence may not be used against them for doing so,”said Martin van Staden, head of legal policy at the Free Market Foundation.

“The Constitution tells government to back off, and civil society is echoing that demand. There is no doubt that if government proceeds with these regulations, and particularly if it tries to enforce them, they will be challenged in the courts on the basis of their inconsistency with the Constitution.”

In an event that the public is forced to go to court over this matter, it is very likely that the courts will uphold South Africans’ constitutional freedoms and set the regulations aside, noted the Free Market Foundation.