The recent settlement agreed upon between Sentech and disgruntled MyWireless user Roelf Diedericks has failed to advance a potentially important issue on where the balance rests between freedom of speech and the way in which one expresses it.
The right of freedom of speech emanates from s16(1) of the constitution of SA of 1996. It includes freedom to receive or impart information or ideas.
Whether this freedom allows one to make defamatory remarks is an issue that arose in the "Worst 4x4xfar" case. In it, the Supreme Court of Appeal ruled in May that Jaco Van der Merwe was validly exercising his right to freedom of expression in relation to his Isuzu motor vehicle, whose chassis bent while he was in Namibia.
In a statement released for General Motors South Africa, Doug Harrison said: "We are disappointed by the outcome but accept the finding of the court with regard to the issue of the rights of an individual to freedom of speech. We now consider the matter to be closed."
Far from being closed, the matter may well have bolstered Diedericks` prospects in the Sentech dispute, which was settled before it went to court.
Diedericks stated that he was experiencing download speeds of "3Kbps to 4Kbps" over his broadband 128Kbps line, and that his download speeds were "worse than those received on a 56Kbps line". While poor download speeds can be attributed to bottleneck issues on the client or server side, Winston Smith of Sentech recently admitted that there was in fact a problem with the allocation of bandwidth, and described Sentech as "still finding our feet".
Truth, uttered in the public interest, has long since been a defence against charges of defamation.
Since the matter between Diedericks and Sentech did not go to trial, whether or not receiving dial-up level performance over a broadband link constituted a matter in the public interest did not need to be resolved. And even if Diedericks` remarks had been shown to be defamatory, there is still the matter of Van der Merwe`s case to be dealt with.
The Van der Merwe case was not about the integrity of a product inasmuch as it was about freedom of speech.
Accordingly, Diedericks may, using the logic of the Van der Merwe case, not even have had to prove his poor download speed in order to excuse his alleged defamatory remarks.
So instead, lawyers for Sentech instructed Diedericks to "take down" the site, or face legal action, on this basis of intellectual property rights being violated.
However, for Sentech to have a case in intellectual property/trademark infringement, Diedericks would have to have used Sentech`s trademarks or name at the commercial level, in other words, with a view to profiting from them.
What can be done to curb hate speech?
Truth, uttered in the public interest, has long since been a defence against charges of defamation.
Dirk Venter, cyberlaw consultant, Venter Information Services
Although this may suggest that Diedericks may have had a case had he gone to court, caution needs to be had for the abuse of rights. Freedom of speech does not extend to "propaganda for war, incitement of imminent violence, or advocacy of hatred based on race, ethnicity, gender or religion".
In fact, doing so would allow for a take down order under section 77(1) of the Electronic Communications and Transactions (ECT) Act of 2002 against the service provider "or associated agent" involved with hosting the site.
Since service providers are exempt from responding mistakenly to a "take down" notification, the person/s requesting the take down may be liable if they distorted the facts in their notice to the service provider.
Obviously, this applies to South African service providers. Hate speech has a history of being condoned on the Internet, such as in the US. This can be ameliorated via terms governing acceptable behaviour which can be tacked on to a service level agreement, and these can include an acceptable use policy (AUP).
An AUP can be specifically targeted at defamatory comments, and the recent closing down of www.menagainstmoffies.co.za, hosted from a US service provider, was based on an AUP violation.
It is worth noting that provision may exist for a domain name registration to be refused in terms of s68(b) of the ECT Act of 2002, which allows the .co.za domain name authority to pass regulations refusing registration of certain names, with the approval of the minister of communications.
However, this does not prevent defamatory names to be registered with different domain suffixes/extensions. Nor does it suggest that the section will stand up to s16, constitutional freedom of expression, if tested in court.
While this does not significantly change the position above, it is worth noting that a hate speech Bill is being constructed in SA, criminalising hate speech. Notwithstanding comments in the Bill suggesting that it does not alter the protection of rights afforded by the constitution, at this stage fair and accurate reporting in the public interest, or publication of information in terms of freedom of expression rights in the constitution (as evidenced in the Van der Merwe case) will not be classified as hate speech.
* Dirk Venter is a cyberlaw consultant with Venter Information Services.
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