A portion of South Africans not aware that freedom of expression is not without limits

February 1st, 2017
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By Kgomotso Ramotsho

Partner in the Technology, Media, Telecommunication and Intellectual Property department at Webber Wentzel, Nozipho Mngomezulu, said online and social media comments showed that a number of South Africans are not aware that their right to freedom of expression is not without limits. Ms Mngomezulu discussed hate crimes at the Technology, Media and Telecommunications seminar in Sandton on 16 November 2016.

Partner in the Technology, Media, Telecommunication and Intellectual Property department at Webber Wentzel, Nozipho Mngomezulu, gave a presentation on the impact of proposed hate crimes on operators, services providers and website at the Webber Wentzel’s key legal development relating to Technology, Media and Telecommunications seminar.

Ms Mngomezulu said s 16 of the Constitution gives all South Africans the right to freedom of expression, which includes the rights to press and other media, and freedom to receive or impart information or ideas. However, she said the right does not extend to speech that advocates hate based on race, gender, religion and incitement to cause harm. Ms Mngomezulu used the example of the Penny Sparrow case, where in January 2016 Ms Sparrow posted on Facebook: ‘These monkeys that are allowed to be released on New Year’s eve and New Year’s day on to public beaches towns etc obviously have no education what so ever so to allow them loose is inviting huge dirt and troubles and discomfort to others.’

Ms Mngomezulu said comments made by Ms Sparrow and others on social media, led to the Minister of Justice and Correctional Services, Michael Masutha, publishing the Prevention and Combating of Hate Crimes and Hate Speech Bill, commonly known as the Hate Crimes Bill, on 24 October 2016. She said the Bill is based on similar legislation from Kenya and Australia and that the public was given an opportunity to comment before the Bill was put in place. Ms Mngomezulu said the Bill states that speech that is threatening, ridiculing, insulting to a person can amount to hate speech, for example, cartoons making fun of politicians, provocative paintings or Facebook memes. She added that the Bill could also hold social networks at fault for material posted on it. Section 4(1)(c) of the Bill says it is an offence to display or make available any material that constitutes hate speech that is directed at a specific person that is a victim of hate speech. She said this will include material sent in the form of SMS or WhatsApp messages.

Partner and head of corporate practice at Webber Wentzel, Safiyya Patel spoke about the draft of the amended Black Economic Empowerment (BEE) codes of good practice for the information and communication technology (ICT) sector. She said there are many surprises and controversy around the amended ICT codes. One change being the range of points for one to reach a BEE level contributor, which has increased dramatically. Ms Patel noted that the actual score cards, and the new ICT codes are aligned with the revised generic codes. She said for example, instead of seven elements, there are now only five elements, which are measured under –

  • ownership;
  • management control;
  • skills development;
  • enterprise and supplier development; and
  • social economic development.

Partner and head of corporate practice at Webber Wentzel, Safiyya Patel, gave a presentation on the draft amended BEE codes of good practice for the ICT sector.

Ms Patel noted that there are three priority elements on the score card such as the revised generic codes, namely –

  • ownership;
  • skills development; and
  • enterprise and supplier development.

She highlighted that it was important to know that a subminimum must be achieved on all three priority elements in respect of any other elements being preferentially procured. Ms Patel said for example, if a merit entity achieves a level four, it will automatically be discounted to a level five as a result of not achieving a subminimum on any of the priority elements.

Partner in the Technology, Media, Telecommunication and Intellectual Property at Webber Wentzel, Bernadette Versfeld spoke about the intellectual property (IP) law change. She said there is a concern around the Copy Right Bill. She said the current position is that the state owns copy right to all that it commissions. Ms Versfeld said the Bill is proposing to extend that any copy right funded by the state will be owned by the state. Ms Versfeld said there are no further regulations and no provision is given on the copy right that is partially owned by the state on how it will play out. She pointed out copy right cannot be assigned, however, the copy right that may be assigned will only be assigned for a period of 25 years and then be revoked back to its original owner.

Ms Versfeld said that the current position with commissioned work also changes from being that if one commissions a work they would own that work. She noted that now the commissioner of the work would have to have copy right signed by the commissioner.

Partner in the Technology, Media, Telecommunication and Intellectual Property at Webber Wentzel, Peter Grealy spoke about the National Integrated ICT Policy White Paper (GN 1212 GG40325/3-10-2016). Mr Grealy said the paper was published on 3 October 2016 and that the objective of the paper was to set a frame work for government to improve communication infrastructure and services. ‘Our understanding was that there was an intention to shift the paradigm to open access over the internet and over the spectrum,’ he said.

Partner in the Technology, Media, Telecommunication and Intellectual Property department at Webber Wentzel, Peter Grealy, was speaking about the ICT Policy White Paper, at Webber Wentzel’s key legal development relating to Technology, Media and Telecommunications Seminar.

Mr Grealy said that over access itself will demand that network providers provide their service in line with the principles of effective access to infrastructure, transparency and non-discrimination. He said it will affect network services such as core networks, digital services and applications. He added that in terms of infrastructure sharing in the white paper it was proposed that a regulator would publish a list of what is referred to as open access networks.

Mr Grealy said essentially these are the networks that service providers control critical resources or have significant power over and can influence functioning of the market. He added that when an access provider is then deemed to be an open access provider they will be required to provide cost space pricing, meaning the pricing will not exceed the minimum cost of the service.

Mr Grealy said that spectrum is a key source resource for many essential communication services, including for example, television and sound broadcasting. He pointed out that it is an increasingly scarce resource especially in light of the development of digital technology. He said that South Africa’s (SA) lack of radio spectrum availability went to a number of arrangements between existing stakeholders, trying to find alternatives to provide Long Term Evolution (LTE) coverage in the country. He said that in July 2016 the Independent Communication Authority of South Africa (ICASA) invited applicants to participate in an auction of rights to use certain high demand of frequency.

Mr Grealy said prior to the auction being held, the minister of Telecommunications and postal services, Siyabonga Cwele, brought a successful court interdict against ICASA, on the basis that the auction was irrational and made prematurely. He said the effect of that was that ICASA could not proceed with the auction and the outcome of the case will be heard in 2017. Mr Grealy said that Minister Cwele suggested that SA should adopt the spectrum sharing model and that by adopting the shared spectrum model it would help address concerns raised by the smaller local players.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2017 (Jan/Feb) DR 11.

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