LIASA Statement on the FPB Draft Online Regulation Policy

7 April 2015

The Library and Information Association of South Africa (LIASA) was launched on 10 July 1997. LIASA,  a SAQA registered Professional Body, unites and represents all institutions and people working in libraries and information services in South Africa.

LIASA thanks the Department of Communication for its transparency and invitation for public participation in this important legislative process.  We commend the Government for its endeavours to protect children and young adults from exposure to pornography and other unacceptable content and activities in the digital environment.

LIASA upholds the SA Constitution, and in particular the rights to freedom of expression and freedom of access to information.  We believe that our country already has adequate legislation to address the issues raised in the Draft Online Regulation Policy, and to prosecute and incarcerate perpetrators of such crimes.  The Children’s Act No. 38 of 2005 is one such act which provides for the protection of children rights, including issues around sexual exploitation, pornography, prostitution and other criminal activities. South Africa is a signatory to a number of international conventions and treaties, but more specifically, it has acceded to the International Covenant on Civil and Political Rights (ICCPR), the International Convention on the Elimination of All Forms of Racial Discrimination, and the Convention on the Rights of Persons with Disabilities.  It has also enacted the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Equality Act).

LIASA believes that implementation and strong enforcement of current laws and regulations is conspicuously absent, and we foresee that a new set of draconian regulations will exacerbate the current situation.  LIASA believes that this proposed Policy is totally impractical, economically-wasteful and unnecessary. It proposes to stop the flow of any games, films and some publications (not defined in the Draft), before they have been registered and classified by the FPB. This is practically impossible and will take an extraordinarily long time to process and approve any online content. It will cause a massive bottleneck at the door of the FPB as millions of producers of personal and/or public material wait for classification and approval. It also presents an invitation for illegal activity where producers will purposely bypass the FPB.  This has serious implications for the economy, access to information, and also for privacy of individuals.  This could result in the distribution of legitimate online content being held up and being rendered outdated by the time it is distributed online. There is also the danger that content that does not fall within the ambit of the proposed Regulations will also be caught up in the net of censorship.

Facebook, Instagram and other social media are the modern means for individuals, organisations and commercial and non-commercial entities to share information, films, photographs and other media online, immediately and without charge.  The Draft Online Regulation Policy will essentially stop communication altogether, as there is no possible way that all such material can be channelled to the FPB first, before being distributed online.  It will also only approve material after a fee has been paid, which eliminates anyone who does not have these resources. With respect, the FPB clearly underestimates or misunderstands how the Internet works and how humans communicate in a digital world.  These proposed Regulations are not only draconian but border on oligarchy.  They smack of pre-1994 restrictive legislation which is very worrying.  They essentially infringe basic human rights entrenched in the SA Constitution (Act No. 106 of 1996).

Article 9 of the Constitution provides that –

Everyone has the right to privacy, which includes the right not to have-

    1. their person or home searched;
    2. their property searched;
    3. their possessions seized; or
    4. the privacy of their communications infringed.

Section 16(1) of the Constitution provides that –

  1. Everyone has the right to freedom of expression, which includes-
    1. freedom of the press and other media;
    2. freedom to receive or impart information or ideas;
    3. freedom of artistic creativity; and
    4. academic freedom and freedom of scientific research.
  2. The right in subsection (1) does not extend to-
    1. propaganda for war;
    2. incitement of imminent violence; or
    3. advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

The right to freedom of expression and the right to freedom to receive or impart information and/or ideas need to be exercised within the framework of the Bill of Rights and should in no way infringe on the rights of others. If rights are infringed, there are a number of appropriate laws and corrective measures that can be used to remedy the situation, as aforementioned.

LIASA understands that the Films and Publications Board Act 1996 gives the FPB the authority to issue guidelines, not to legislate.  It only has jurisdiction over films and games, not all published content. It therefore clashes with other laws, e.g. Sections 6-9 of the Copyright Act No. 98 of 1978 (as amended), which would interfere with the exclusive rights granted to authors and creators to create and impart their works in various formats and media.

It is worrying that considerations to censor material on the Internet are being contemplated in our young democracy. The intent to introduce such Regulations is a major concern. In addition, classifying and censoring digital content is virtually impossible, considering the amount of content that is uploaded every second of every day on the Web, social media, iPads, cellphones and other devices.  Our democracy is 21 years old but the pre-1994 restrictions on access to information and freedom of expression are still fresh in the minds of our members and other South African citizens.

LIASA objects to draconian censorship being resuscitated or being contemplated at all.  South Africans fought long and hard for freedom of expression and freedom to access information – rights now proudly entrenched in our globally-recognised Constitution.

LIASA rejects the Draft Online Regulation Policy in toto, and strongly recommends that more efficient and serious enforcement of current legislation be given urgent attention.

Segametsi Molawa
LIASA President 2014-2016
Phone: +27 (0) 12 302-2935
Fax: +27 (0) 12 349-9982
Skype: Segametsi.molawa
E-mails: president@liasa.org.za or smolawa@hsrc.ac.za
Web: http://www.liasa.org.za

“Providing dynamic leadership for LIS in South Africa”

Further information: Nikki Crowster, National Public Relations Officer nikki@chec.ac.za +27828222120

This statement was drafted by Mrs Denise Nicholson on behalf of LIASA
Denise Nicholson (Mrs)
Scholarly Communications Librarian
Scholarly Communications & Copyright Services Office
University of the Witwatersrand, Johannesburg