South Africa’s internet freedom improved moderately during the coverage period. With a long-awaited data protection act entering into force and a new law on cybercrimes, the government has increased its regulation of digital spaces. While online content manipulation declined in the aftermath of the May 2019 election, self-censorship and online harassment remain prevalent. Though concerns persist about South Africa’s surveillance capabilities, there were no reported instances of blocking or filtering and no restrictions on the use of social media for online mobilization.
Although South Africa has cultivated a reputation as a proponent of human rights and a leader on the African continent, in recent years, the ruling African National Congress (ANC) has been accused of undermining state institutions in order to protect corrupt officials and preserve its power as its support base began to wane.
- No malfunctions in undersea internet cables were reported during the coverage period; such issues interrupted internet access across the country in early 2020 (see A1).
- Vodacom and MTN’s dominance of the mobile services market produced disparities in internet access and cost, according to the communications regulator, which released a draft plan to regulate those telecommunications providers (see A2 and A4).
- In July 2020, the Film and Publications Board, a media regulator, announced plans to drastically expand its reach over online content; the plans were not approved by the end of the coverage period (see B3).
- In May 2021, the government passed the Cybercrimes Act, which provides officials with broad authorities to access user data in the investigation of cybercrimes and includes restrictions to certain kinds of speech, including incitement to violence. The law has not entered into effect as of the end of the coverage period (see C2 and C6).
- No South African internet users were arrested under the emergency regulations for spreading false information about the pandemic, a reversal from the previous coverage period (see C3).
- Technical attacks against media organizations and government critics have not been reported in recent years, though private businesses are frequently targeted (see C8).
|Do infrastructural limitations restrict access to the internet or the speed and quality of internet connections?||4.004 6.006|
Score Change: The score improved from 3 to 4 because the undersea cable malfunctions that caused weeks of reduced speeds for South African internet users in early 2020 were not repeated during the coverage period.
Internet penetration has expanded rapidly in South Africa. According to the latest data from the International Telecommunication Union (ITU), the internet penetration rate reached 56 percent in 2017. DataReportal’s Digital 2021 report cites a figure of 64 percent internet penetration in January 2021.1 According to the 2019 General Household Survey conducted by Statistics South Africa, the national statistics agency, 63.3 percent of South African households have at least one member who can access the internet at home, work, school, or in internet cafés,2 an increase from 53 percent in 2015.3 The majority of internet users (58.7 percent) access the internet through their mobile devices.4
The government has prioritized access to free public Wi-Fi with the adoption of its broadband policy, the SA Connect program, in 2013.5 SA Connect aims to provide universal affordable, high-quality, high-speed broadband access to all South Africans. Phase 1 of the project involves rolling out broadband to schools, clinics, police stations, and other government facilities, particularly in underserved communities. However, a 98.7 percent cut in the budget of the Department of Telecommunications and Postal Services greatly limited the efficiency of the program in the 2018–19 financial year.6 Mobile operators are obligated to contribute to SA Connect implementation as part of their license conditions. As of May 2018, the most recent data available, mobile operators had connected 4,366 schools out of the 5,250 that were targeted for connectivity in a five-year period.7
Several other initiatives have enjoyed modest success in rolling out public Wi-Fi in metropolitan areas, including Cape Town, Durban, Johannesburg, Tshwane,8 and the Ekurhuleni municipality.9 Similar projects are also being rolled out in other provinces and towns across the country.10
The fiber-optic market in South Africa has grown at an exponential rate. Most suburban areas of the major urban centers (including Pretoria, Cape Town, Johannesburg, Durban, and Port Elizabeth) are already covered with fiber-optic cables, and new “last mile” providers of fiber have begun to wire homes by connecting to competitive internet backbones run by larger operators. At least 12 companies provide fiber network infrastructure,11 with partially state-owned Telkom providing 157,400 kilometers (97,800 miles) of fiber, the largest share as of 2018, which connects more than 2.5 million premises; other companies provide a considerably smaller share of fiber.12
According to the Digital 2021 report, the average mobile internet connection speed in South Africa is 38.95 megabits per second (Mbps), while the average speed for a fixed-line connection is 38.25 Mbps, an improvement from the previous year.13 In comparison, the UK-based telecommunications company Cable reports that South Africa had an average download speed of 14.04 Mbps as of September 2020, ranking 97th out of the 221 countries assessed.14
The availability of the internet has been significantly limited by power cuts introduced in 2019 by the national power company, Eskom, to stave off years of mismanagement.15 Since 2019, Eskom has been conducting load-shedding on a regular basis due to reduced power-generating capacity resulting from technical faults caused by lack of maintenance at power stations, as well as operational, structural, and financial problems.16 The situation is expected to continue for the immediate future.17 Mobile operators have been experiencing challenges in ensuring that their cell phone towers remain online during power outages resulting from a wave of thefts organized by criminal syndicates that steal the batteries from the towers.18
In January and February 2020, during the previous coverage period, damage to the West African Cable System (WACS) and South Atlantic 3 (SAT-3) undersea cable caused a service disruption that lasted for weeks in South Africa and other southern and west African states.19 MTN and Vodacom users in South Africa reportedly experienced reduced connection speeds as a result of the cable damage.20 Some providers were rerouted to other cables, such as SEACOM and EASSy, to accommodate the infrastructure problem.21 There were additional WACS and SAT-3 breaks at the end of March 2020, causing slow internet speeds.22 These additional breaks were repaired by April 3, 2020, and affected only Telkom customers.23
Due to the COVID-19 pandemic and the national lockdown declared by the government, many businesses had to shift their operations online. In April 2020, the Independent Communications Authority of South Africa (ICASA)—the country’s communications and broadcasting regulator—announced a “temporary release of high demand spectrum” during the national state of disaster to ease network congestion, maintain quality broadband services, and allow service providers to lower costs.24 The temporary allocation was later extended until November 2021.25
In September 2021, after the coverage period, ICASA announced it would reconsider plans to permanently allocate additional spectrum.26 The regulator had announced it would seek applications for the spectrum in April 2020, in order to increase the quality of broadband access and potentially lead to lower prices. Service provider Telkom and television station eTV sued over the plan, arguing that further allocation would entrench the dominance of providers MTN and Vodafone (see A4).27
- 1Hootsuite & We Are Social, “Digital 2021: South Africa,” February 11, 2021, https://datareportal.com/reports/digital-2021-south-africa.
- 2Statistics South Africa, “General Household Survey, 2019,” December 17, 2020, http://www.statssa.gov.za/publications/P0318/P03182019.pdf.
- 3Statistics South Africa, “General Household Survey, 2015,” June 2, 2016, http://www.statssa.gov.za/publications/P0318/P03182015.pdf.
- 4Statistics South Africa, “General Household Survey, 2019,” December 17, 2020, http://www.statssa.gov.za/publications/P0318/P03182019.pdf.
- 5Department of Telecommunications and Postal Services, “SA Connect: Implementing the Broadband policy and strategy,” April 24, 2014, https://www.dtps.gov.za/index.php?option=com_content&view=article&id=31….
- 6Department of Telecommunications and Postal Services, “SA Connect Progress; USAASA 2018/2019 Annual Performance Plan,” May 22, 2018, https://pmg.org.za/committee-meeting/26448/.
- 7Department of Telecommunications and Postal Services, “SA Connect Progress; USAASA 2018/2019 Annual Performance Plan,” May 22, 2018, https://pmg.org.za/committee-meeting/26448/.
- 8“Tech-Thursday: A Wi-Fi update on some of South Africa’s major cities,” African Reporter, August 31, 2017, https://web.archive.org/web/20190711162314/https://africanreporter.co.z….
- 9Simnikiwe Mzekandaba, “Free WiFi for Ekurhuleni,” IT Web, November 10, 2016, https://www.itweb.co.za/content/XnWJad7bZ987bjO1.
- 10Simnikiwe Mzekandaba, “Minister calls for more public WiFi zones,” IT Web, February 2, 2018, https://www.itweb.co.za/content/GxwQDM1AXVpMlPVo; Nokulunga Xala, “The current state of free public WiFi in South Africa,” Hypertext, September 11, 2018, https://www.htxt.co.za/2018/09/11/the-current-state-of-free-public-wifi….
- 11Jan Vermeulen, “How many fibre infrastructure and service providers are there in South Africa?,” MyBroadband, May 3 2018, https://mybroadband.co.za/news/fibre/258079-how-many-fibre-infrastructu….
- 12Jan Vermeulen, “Telkom’s massive fibre network versus the rest,” MyBroadband, August 22 2018, https://mybroadband.co.za/news/fibre/272491-telkoms-massive-fibre-netwo….
- 13Hootsuite & We Are Social, “Digital 2021: South Africa,” February 11, 2021, https://datareportal.com/reports/digital-2021-south-africa.
- 14“Worldwide broadband speed league 2021,” Cable, accessed August 30, 2021, https://www.cable.co.uk/broadband/speed/worldwide-speed-league/.
- 15Bradley Priori, “What happens to South African Networks when load-shedding returns,” Mybroadband, March 5, 2019, https://mybroadband.co.za/news/business-telecoms/296152-what-happens-to….
- 16Rebecca Davis, “Load Shedding: Nobody can predict when the situation will stabilize,” Daily Maverick, March 19, 2019, https://www.dailymaverick.co.za/article/2019-03-19-nobody-can-predict-w….
- 17Jamie McKane,”Ramaphosa’s plan to solve Eskom’s load-shedding crisis,” Mybroadband, February 13, 2020, https://mybroadband.co.za/news/energy/338740-ramaphosas-plan-to-solve-e….
- 18Duncan Alfreds, “Vandalism could destroy SA mobile networks, warn Vodacom and MTN,” News 24, February 6, 2020, https://www.news24.com/news24/southafrica/news/vandalism-could-destroy-….
- 19Jay Caboz, “PICS: The burnt-out undersea cable that crippled SA’s internet,” Business Insider South Africa, February 7, 2020, https://www.businessinsider.co.za/south-africas-slow-internet-leon-thev…
- 20Lisa Isaacs, “Undersea cable repairs to boost internet will be completed next week,” IOL, February 11, 2020, https://www.iol.co.za/capetimes/news/undersea-cable-repairs-to-boost-in…
- 21“Ship to fix undersea cable breaks is delayed as African tech users wait,” Africa Times, January 19, 2020, https://africatimes.com/2020/01/19/ship-to-fix-undersea-cable-breaks-is…
- 22Brian Browdie, “South Africans under lockdown have to deal with slow internet after another undersea cable break,” Quartz, March 30, 1010, https://qz.com/africa/1828436/lockdown-south-africa-internet-slows-as-s…
- 23“WACS undersea cable break repairs completed but connectivity interruptions may continue,” IOL, April 3, 2020, https://www.iol.co.za/technology/software-and-internet/wacs-undersea-ca….
- 24ICASA, “Emergency Release of spectrum to meet the spike in broadband services demand due to Covid 19,” April 6, 2020, https://www.icasa.org.za/news/2020/emergency-release-of-spectrum-to-mee….
- 25“ICASA extends temporary radio frequency spectrum assignments for licensees,” ICASA, March 26, 2021, https://www.icasa.org.za/news/2021/icasa-extends-temporary-radio-freque…; “Three months grace period to allow licensees to wind down their use of temporary radio frequency spectrum,” ICASA, August 30, 2021, https://www.icasa.org.za/news/2021/three-months-grace-period-to-allow-l….
- 26“ICASA eyes 15 September 2021 as the date to finally conclude the spectrum licensing litigation,” ICASA, September 7, 2021, https://www.icasa.org.za/news/2021/icasa-eyes-15-september-2021-as-the-….
- 27Duncan McLeod, “Spectrum auction to be postponed as Telkom secures interdict,” Tech Central, March 8, 2021, https://techcentral.co.za/breaking-spectrum-auction-is-off-as-telkom-se….
|Is access to the internet prohibitively expensive or beyond the reach of certain segments of the population for geographical, social, or other reasons?||1.001 3.003|
High costs remain a primary obstacle to access. Recent market trends show that users are spending a greater proportion of income, at the individual and household level, on data, and less on voice or SMS services.1
Prepaid mobile data remains unaffordable for most South Africans.2 In 2020, the average cost of 1 gigabyte (GB) of mobile data was 2.17 percent of the average monthly income in South Africa, according to the Alliance for Affordable Internet.3 In the first quarter of 2020, the average cost of 1GB of mobile data was $6.51, which places South Africa 33rd out of 46 African countries for which there are figures available on the affordability of mobile data.4 Though mobile operators are gradually providing more low-cost data packages to lower-income customers,5 the vast majority of South Africans without internet access are those earning less than 7,200 South African rands ($470) per month (representing 42 percent of the population). Those without internet access have pinpointed the high costs as the main reason for their lack of connectivity.6
Digital inequality has increased over the years as more South Africans have become connected, according to a report commissioned by the National Planning Commission. The report attributes the problem to the resource gap between people who are able to use the internet optimally and those who are only able to access basic benefits due to poor quality connections and high prices.7
ICASA has taken steps to address the high cost of data in two ways. The introduction of the End-User and Subscriber Service Charter Regulation Amendment of 2018, which came into force in April 2019, requires service providers to give users the option to roll over their data bundles from month to month for a maximum period of three years; to transfer their data to another user within the same network; and to provide opt-in and opt-out choices for out-of-bundle data charges, which are considerably more expensive, upon exhaustion of their data.8 In December 2019, ICASA announced a regulatory impact assessment of the new regulations’ effects.9
An investigation by the Competition Commission of South Africa launched in August 2017 found that the average price of data is higher in South Africa than in other African countries and has not declined as significantly over time as the prices in these other countries.10 During the previous coverage period, Vodacom and MTN, which together control 80 percent of the market, reached agreements with the Competition Commission that include several concessions aimed at making internet access more affordable:
- Vodacom agreed to reduce prices across all categories of data bundles by over 30 percent beginning April 1, 2020.
- Vodacom expanded the range of zero-rated websites on its network to include the websites of all public universities, colleges, schools, and seven job search portals, as well as Wikipedia and Facebook Flex.
- MTN agreed to reduce the price of all 30-day prepaid data bundles beginning May 1, 2020, with the price of 1GB reduced by more than 30 percent.
- MTN provided each of its customers with 20 MB of daily free data and expanded its list of zero-rated websites to include 500 websites focusing on healthcare, job searches, and public benefit organizations.11
Currently, zero-rated offerings by mobile operators essentially offer free internet access to a few over-the-top (OTT) media services such as free basics on Facebook, Twitter, and educational services including D6 Communicator for schools and Vodacom e-school learning apps.12 The range of zero-rated websites provided by Vodacom and MTN has been expanded following the agreements they reached with the Competition Commission in April and May 2020.13 A few other services are partially zero-rated in that users receive them as part of a paid package. However, zero-rated services are often used by South Africans who are already connected to reduce their costs of access, and not necessarily as their exclusive means of accessing the internet.14
Though the country has achieved nearly 100 percent third-generation (3G) network coverage, there are disparities in internet access between urban and rural dwellers.15 Internet penetration is significantly higher in urban areas. According to the 2019 General Household Survey, only 1.2 percent of people in rural areas have access to the internet at home, compared to 7.2 percent of those in urban areas and 15.4 percent of those in major metropolitan areas. Similarly, a majority of urban dwellers (59.5 percent) and people in major metropolitan areas (67.8) have access to the internet on mobile devices, compared to a minority of rural dwellers (44 percent).16 ICASA’s market inquiry into mobile broadband services identified cost differences between rural and urban areas. The draft mobile services regulations released in March 2021 would require reporting on such disparities (see A4).
In terms of the gender gap, Research ICT Africa reported that 12 percent more men have access to the internet than women.17 Access to the internet among youths is relatively high, at 70 percent, compared with 53 percent of the general population.18 The higher rate of youth connectivity is no doubt influenced by the high level of access to smartphones by young people; 71 percent of youths have smartphones, compared with 55 percent of the general population.
Importantly, SIM card registration requirements (see C4), which include proof of residence, present an obstacle to mobile phone usage for many South Africans who live in informal settlements.
Inequalities in internet access have been made starker by the reliance on connectivity during the COVID-19 pandemic. The impact of this inequality has been particularly impactful in the field of education. Schools have periodically been closed since March 2020 as part of the government’s measures to curb the spread of the virus. Though many schools shifted to e-learning, students who do not have access to affordable internet and electronic devices have largely been left behind. In order to host online classes, teachers also require access to affordable high-speed internet at home, which some do not have. Many government-funded schools have been unable to implement online classes at all due to these challenges. The major mobile operators have implemented various interventions, in part by accelerating the implementation of zero-rating educational websites.19
- 1Research ICT Africa, “UPDATE: State of prepaid market in South Africa: Submission to the Parliament of South Africa on ‘The Cost to Communicate in South Africa,’” October 4, 2019, https://www.researchictafrica.net/polbrf/Research_ICT_Africa_Policy_Bri….
- 2The United Nations Broadband Commission defines affordability of internet as ability to purchase broadband internet at 2% or less of average monthly income. ITU, “The State of Broadband: Catalyzing Sustainable Development,” September 2018, https://www.itu.int/dms_pub/itu-s/opb/pol/S-POL-BROADBAND.19-2018-PDF-E….
- 3Alliance for Affordable Internet, “Affordability Report 2020,” March 9, 2021, https://a4ai.org/affordability-report/data/?_year=2020&indicator=INDEX.
- 4Research ICT Africa (RIA), “Policy Brief – Despite reduction in mobile data tariffs, data still expensive in South Africa,” 10 July, 2020, https://researchictafrica.net/wp/wp-content/uploads/2020/06/Tapiwa-Chin….
- 5RIA, “After Access Survey 2018, Policy Brief 1,” June 2018, https://researchictafrica.net/wp/wp-content/uploads/2018/06/2018_Policy….
- 6RIA, “After Access Survey 2018, Policy Brief 2,” July 2018, https://researchictafrica.net/wp/wp-content/uploads/2018/09/Policy-brie….
- 7RIA, “Digital Futures: South Africa’s Digital Readiness for the Fourth Industrial Revolution,” August 2020, https://researchictafrica.net/wp/wp-content/uploads/2021/01/021220_Digi….
- 8Independent Communications Authority of South Africa (ICASA), “Amendments to the End-User and Subscriber Service Charter Regulations,” February 11, 2019, https://www.icasa.org.za/news/2019/amendments-to-the-end-user-and-subsc…; “Second amendments to the end-user and subscriber service charter to facilitate implementation and compliance with the regulations,” ICASA, February 28, 2019, https://www.icasa.org.za/news/2019/second-amendments-to-the-end-user-an….
- 9“Notice of Intention to Conduct a Regulatory Impact Assessment On Eussc,” ICASA Notice, November 16, 2018, https://www.icasa.org.za/legislation-and-regulations/notice-of-intentio…
- 10“Data Service Market Inquiry: Final Report,“ Competition Commission, December 2, 2019, http://www.compcom.co.za/wp-content/uploads/2019/12/DSMI-Non-Confidenti….
- 11“Vodacom consent agreement press conference speaking notes,” Competition Commission, undated, http://www.compcom.co.za/wp-content/uploads/2020/03/Vodacom-consent-agr…; “Commission reaches agreement with MTN on reduction of data prices,” April 30, 2020, http://www.compcom.co.za/wp-content/uploads/2020/05/COMMISSION-REACHES-….
- 12Chris Tredger, “Zero Rating not an On-Ramp to Internet,” Web Africa, August 2, 2017, https://web.archive.org/web/20191201145753/http://www.itwebafrica.com/i…; “Much Ado About Nothing: Zero rating in the African Context,” Research ICT Africa, September 12, 2016, https://www.researchictafrica.net/publications/Other_publications/2016_….
- 13“Vodacom consent agreement press conference speaking notes,” Competition Commission, March 2020, http://www.compcom.co.za/wp-content/uploads/2020/03/Vodacom-consent-agr…; “Commission reaches agreement with MTN on reduction of data prices,” April 30, 2020, http://www.compcom.co.za/wp-content/uploads/2020/05/COMMISSION-REACHES-….
- 14“Much Ado About Nothing: Zero rating in the African Context,” Research ICT Africa, September 12, 2016, https://www.researchictafrica.net/publications/Other_publications/2016_….
- 15“After Access Survey 2017, Policy Brief 2,” RIA, July 2018, https://researchictafrica.net/wp/wp-content/uploads/2018/09/Policy-brie….
- 16Statistics South Africa, “General Household Survey, 2019,” December 17, 2020, http://www.statssa.gov.za/publications/P0318/P03182019.pdf.
- 17“After Access Survey 2017, Policy Brief 2,” RIA, July 2018, https://researchictafrica.net/wp/wp-content/uploads/2018/09/Policy-brie….
- 18Gillwald, Mothobi and Rademan “The State of ICT in South Africa” Research ICT Africa, July 2018, https://researchictafrica.net/wp/wp-content/uploads/2018/10/after-acces….
- 19Ayanda Mthethwa, “Covid 19 cements need for digital learning amidst concerns it will widen digital divide,” Daily Maverick, March 27, 2020, https://www.dailymaverick.co.za/article/2020-03-27-covid-19-cements-nee…; Kristal Duncan-Williams, “South Africa’s digital divide detrimental to the youth,” Mail & Guardian, April 19, 2020, https://mg.co.za/article/2020-04-19-south-africas-digital-divide-detrim…; Mmaki Jantjies, “How South Africa can address digital inequalities in e-learning,” The Conversation, April 29, 2020, https://theconversation.com/how-south-africa-can-address-digital-inequa….
|Does the government exercise technical or legal control over internet infrastructure for the purposes of restricting connectivity?||6.006 6.006|
There is no evidence that the government exercises control over internet infrastructure for censorship or to restrict connectivity.
The government does not have direct control over the country’s internet backbone or its connection to the international internet, and there have been no intentional disruptions to connectivity. International internet connectivity is facilitated via five undersea cables—SAT-3, SAFE, WACS, EASSy, and SEACOM—all of which are owned and operated by a consortium of private companies.1 Several operators oversee South Africa’s national fiber networks, including partly state-owned Telkom and privately owned MTN, Vodacom, Cell-C, Neotel-Liquid, and Broadband Infraco. Internet traffic between different networks is exchanged at internet exchange points (IXPs) located in Johannesburg, Cape Town, and Durban, which are operated by South Africa’s nonprofit Internet Service Providers’ Association (ISPA) and NapAfrica.2 The three IXPs are hosted in vendor-neutral data centers owned by the South African firm Teraco.3
- 1“This is what South Africa’s Internet actually looks like,” MyBroadband, March 9, 2014, https://mybroadband.co.za/news/internet/98178-this-is-what-south-africa….
- 2Jan Vermeulen, “These are the companies who control the Internet in South Africa,” MyBroadband, November 5, 2015, https://mybroadband.co.za/news/broadband/144145-these-are-the-companies….
- 3Jan Vermeulen, “These are the companies who control the Internet in South Africa,” MyBroadband, November 5, 2015, https://mybroadband.co.za/news/broadband/144145-these-are-the-companies….
|Are there legal, regulatory, or economic obstacles that restrict the diversity of service providers?||4.004 6.006|
South Africa has a competitive internet service provider (ISP) market. The ISPA currently has 193 members in South Africa, which are mostly private enterprises.1 However, the fixed-line connectivity market is dominated by Telkom, of which the government has a 40 percent share; the government owns an additional 12 percent share of Telkom through the state-owned Public Investment Corporation.2 Telkom effectively possesses a monopoly of the fixed-line connectivity market, despite the introduction of a second national operator, Neotel, in 2006. There are four major mobile carriers—Vodacom, MTN, Cell-C, and Telkom Mobile—the first three of which are privately owned. In addition to the major players, there is also a data-only mobile network operator, Rain, which is a relatively new entrant to the market.
In March 2021, ICASA released the findings of an inquiry on competition in the mobile broadband services market initiated in November 2018.3 The inquiry found that Vodacom and MTN dominate the mobile services market. Draft regulations proposed alongside the findings aim to regulate the two providers more stringently, with particular focus on exclusionary pricing schemes.4
The licensing processes for fixed and mobile phones, as well as internet services, are overseen by ICASA and are clear and easily accessible on ICASA’s website.5 The licensing fees imposed by ICASA are reasonable and do not impose an undue barrier to the diversity of service providers.
While no informal connections between licensees or prospective licensees and government officials is required for service providers, ICASA is seen by some as a “fractured and weak” institution, which affects its capacity to execute its mandate, including licensing.6
- 1“List of Members,” ISPA, February 25, 2020, https://ispa.org.za/membership/list-of-members/.
- 2“Here is Government’s shareholding in South African telecoms companies,” MyBroadband, June 23, 2015, https://mybroadband.co.za/news/broadband/130048-here-is-governments-sha….
- 3“Notice to Conduct a Market Inquiry into Mobile Broadband Services,” ICASA Notice, November 16, 2018, https://www.icasa.org.za/legislation-and-regulations/notice-to-conduct-….
- 4“Findings Document On Mobile Broadband Services Inquiry,” ICASA, March 30, 2021, https://www.icasa.org.za/uploads/files/Findings-document-on-mobile-broa…; “Draft Mobile Broadband Services Regulations 2021,” ICASA, March 30, 2021, https://www.icasa.org.za/uploads/files/Draft-Mobile-Broadband-Services-….
- 5“Licensing Processes and Procedure for Individual and Class Licenses,” March 22, 2019, https://www.icasa.org.za/legislation-and-regulations/final-regulations?….
- 6“African Media Barometer: South Africa,” Friedrich-Ebert-Stiftung (FES), 2018, http://library.fes.de/pdf-files/bueros/africa-media/15527.pdf.
|Do national regulatory bodies that oversee service providers and digital technology fail to operate in a free, fair, and independent manner?||2.002 4.004|
The autonomy of the regulatory body, ICASA, is protected by the constitution. A transparent and participatory appointment process involving parliamentary oversight is guaranteed by the law that established ICASA.1 There is, however, a perception that in practice, political interference is a problem in the agency and that membership on the ICASA board is open only to supporters of the ruling party.2
ICASA’s independence has also been compromised by encroachments on its mandate by other government entities. In addition to ICASA, the .za Domain Name Authority (.ZADNA), the Universal Service and Access Agency of South Africa (USAASA), and the Department of Communications and Digital Technologies (DCDT)—formed in June 2019 as a result of the merger of the Department of Telecommunications and Postal Services and the Department of Communications3 —have regulatory power over information and communications technologies (ICTs). The proliferation of regulatory bodies has led to redundancy and poor coordination and contributes to the perception that the country lacks a comprehensive approach to the regulation of ICTs.
In 2016, the cabinet approved the National Integrated ICT Policy White Paper,4 which outlines the overarching policy framework aimed at transforming South Africa into an inclusive and innovative digital and knowledge society.5 One of the bills proposed in the white paper is the ICT Sector Commission and Tribunal Bill. The bill would consolidate regulation of the ICT sector through the introduction of an ICT sector commission and tribunal.6 The legislation had not yet been passed by the end of the coverage period, but the DCDT has indicated that it still intends to proceed with the bill as part of its phased approach to implementing the National Integrated ICT Policy White Paper.7 Another key bill emanating from the white paper that would have significantly impacted supply-side aspects of the ICT sector is the ECA Bill, which was published in 2017 for public comment. The bill was withdrawn by the minister of telecommunications and postal services in February 2019, citing the need for “further consultations.”8 The bill had been widely criticized for granting extensive powers to the DCDT by giving it a greater role in oversight of the sector, raising concerns that this would erode the independence of ICASA.9 The ECA Bill was also intended to facilitate the implementation of a wholesale open access network (WOAN) as a model for spectrum allocation.10 This aspect of the legislation also drew further criticism for undermining the role of ICASA in the allocation and management of spectrum.11
Another key actor in the regulation of ICTs is the Film and Publication Board (FPB), which traditionally regulates the distribution of films, games, and other publications. The Films and Publications Act of 1996 was amended in 2019 to extend the authority of the FPB to regulate such content on the internet (see B3).12 The Act was signed into law by the president in October 2019, but the commencement date had not yet been announced by the end of the reporting period.13 In 2016, the FPB signed a memorandum of understanding with ICASA to address regulatory overlaps created by the proposed amendments, which will effectively create cojurisdiction over online content.14 These proposals further complicate the regulation of online content. However, it remains unclear how the two bodies will implement the agreement.
Access providers and other internet-related groups are active in lobbying for a better legislative and policy environment for the sector. In 2009, the ISPA was recognized as a self-regulatory body by the Department of Communications, and it exercises authority over its members through transparent processes (see B3).15
- 1Section 5, Independent Communications Authority of South Africa Act 2000.
- 2“African Media Barometer: South Africa,” Friedrich-Ebert-Stiftung (FES), 2018, http://library.fes.de/pdf-files/bueros/africa-media/15527.pdf.
- 3“Department of Communications and Digital Technologies,” Government of South Africa, undated, https://nationalgovernment.co.za/units/view/428/department-of-communica…
- 4“National Integrated ICT Policy White Paper,” Telecommunications & Postal Service, September 28, 2016, https://www.dtps.gov.za/images/phocagallery/Popular_Topic_Pictures/Nati….
- 5“Cabinet finally approves SA ICT policy,” Fin24 tech, September 29, 2016, https://www.fin24.com/Tech/News/cabinet-finally-approves-sa-ict-policy-….
- 6“Integrated ICT Policy Translated Into ICT Sector Commission And Tribunal Bill,” Harty Law, October 10, 2017, http://www.harty.law/2018/02/04/integrated-ict-policy-translated-ict-se….
- 7“Report of the Portfolio Committee on Communications on its deliberations of budget vote 32: Telecommunications and Postal Services,” Parliamentary Portfolio Committee on Communications, July 9, 2019, http://pmg-assets.s3-website-eu-west-1.amazonaws.com/190709pccommreport….
- 8”ECA Bill withdrawn,” ITWeb, February 12, 2019, https://www.itweb.co.za/content/wbrpOqgPanQvDLZn.
- 9Paula Gilbert, “ECA Bill gives DTPS minister too much power,” ITWeb, February 7, 2018, https://www.itweb.co.za/content/WnpNgM2AxbY7VrGd.
- 10“ECA Bill gets thumbs up,” Telecoms, August 23, 2018, https://www.itweb.co.za/content/KPNG8v8dZlgv4mwD.
- 11“Government unrelenting about wholesale open access network,” EE Publishers, February 23, 2017. http://www.ee.co.za/article/government-unrelenting-wholesale-open-acces….
- 12“Films and Publications Amendment Bill,” Parliamentary Monitoring Group, accessed October 4, 2019, https://pmg.org.za/bill/613/.
- 13“Get ready for the Films and Publications Amendment Act,” Bizcommunity, November 6, 2019, https://www.bizcommunity.com/Article/196/740/197635.html.
- 14“Memorandum of Understanding Between ICASA and Film and Publications Board,” Independent Communications Authority of South Africa, October 4, 2019, https://www.icasa.org.za/memorandum-of-understanding-between-icasa-and-….
- 15Internet Service Providers Association (see: “About ISPA,” Internet Service Providers’ Association, October 4, 2019, https://ispa.org.za/about-ispa/.
|Does the state block or filter, or compel service providers to block or filter, internet content, particularly material that is protected by international human rights standards?||6.006 6.006|
Neither the state nor other actors block or filter internet and other ICT content, and there is no evidence of blocking or content filtering on mobile phones.
In December 2019, the South African Law Reform Commission published a discussion paper on sexual offenses in which it proposed that new legislation be adopted to require ISPs to automatically block all adult content.1 Users would then have the option of having the content unblocked upon verification of their age. The purpose of the proposal is to protect children from being exposed to adult content, but the ISPA has argued that the measure amounts to an undue limitation on freedom of expression since pornography is not illegal in South Africa.2 It remains to be seen whether the government will prepare draft legislation in line with the recommendation.
- 1“Sexual Offences, pornography and children: Discussion paper 149,” South African Law Reform Commission, February 25, 2020, https://www.justice.gov.za/salrc/dpapers/dp149-prj107-SexualOffences-Po….
- 2“ISPA challenges proposed blocking of adult web content in South Africa,” IT Web, December 9, 2019, https://www.itweb.co.za/content/xnklOvzbQ81v4Ymz.
|Do state or nonstate actors employ legal, administrative, or other means to force publishers, content hosts, or digital platforms to delete content, particularly material that is protected by international human rights standards?||3.003 4.004|
State and nonstate actors do not frequently force publishers, content hosts, or digital platforms to delete legitimate content. Decisions on takedowns for online content are made not by the state but by the self-regulatory body, the ISPA.1 In 2017, a controversial case of content removal made headlines when the news website Black Opinion was taken down by its web host after the ISPA received a complaint that the site was inciting racial hatred.2 Linked to a land-rights lobbying group called Black First Land First, the news site had published articles criticizing “white monopoly capital.”3 The website was restored two weeks after it was taken down.4
The Electronic Communications and Transaction Act (ECTA) requires ISPs to respond to takedown notices regarding illegal content such as child pornography, defamatory material, or copyright violations. Members of the ISPA—the industry’s representative body—are not held liable for third-party content that they do not create or select, though they can lose their protection from liability if they do not respond to takedown requests.5
Google reported that it received three requests for the removal of content from the South African government in 2020, one relating to bullying or harassment and two relating to defamation. Google removed one piece of content pursuant to one defamation request; the other two requests did not result in removals.6
- 1“About ISPA,” ISPA, October 4, 2019, https://ispa.org.za/about-ispa/; “Films and Publications Amendment Bill [B37B - 2015],” ISPA, September 4, 2018, https://ispa.org.za/wp-content/uploads/2018/09/20180904-ISPA-Submission….
- 2Katharine Child, “Drive to shut down websites with links to BLF,” Times Live, July 17, 2017, https://www.timeslive.co.za/politics/2017-07-17-website-with--links-to-….
- 3“Why Hetzner shut down Gupta-linked website,” MyBroadband, July 17, 2017, https://mybroadband.co.za/news/internet/220116-why-hetzner-shut-down-gu….
- 4“Black Opinion is back online!,” Black Opinion, July 24, 2017, https://blackopinion.co.za/2017/07/24/black-opinion-back-online/.
- 5Section 73 of the Electronic Communications and Transactions Act of 2002 (ECTA) reaffirms the limitation of service provider liability for information that is transmitted, stored or routed via a system under its control. (See: “Electronic Communications and Transactions Act, 2002,” July 2002, http://www.internet.org.za/ect_act.html)
- 6“Requests by the numbers: South Africa,” Google Transparency Report, https://transparencyreport.google.com/government-removals/by-country/ZA….
|Do restrictions on the internet and digital content lack transparency, proportionality to the stated aims, or an independent appeals process?||3.003 4.004|
Restrictions on the internet are generally transparent and proportional, with a few exceptions. The ISPA takes a self-regulatory approach to restricting access to unlawful internet and digital content hosted by its members. This process is in accordance with the takedown procedures provided in the ECTA1 and is guided by the ISPA’s complaints procedures.2 ISPs often err on the side of caution by taking down content upon receipt of a notice to avoid litigation (see B2), and there is no incentive for providers to defend the rights of the original content creator if they believe the takedown notice was requested in bad faith.
Though no specific reference is made to a proportionality test as a consideration in restricting access, the ISPA code of conduct requires members to respect freedoms of speech and expression as guaranteed by the constitution, and to act lawfully and cooperate with law enforcement agencies.3 There is an internal appeals process available to those who may be aggrieved by the ISPA’s actions, as well as an avenue for appeal in the courts.4
The ISPA reports annually on activities related to restrictions on content. The reports indicate that the majority of takedown notifications result in content removal: In 2020, less than half of the more than 700 takedown notices lodged with the ISPA were accepted. The most common basis for content being removed is copyright and trademark infringement. Other reasons for removal include fraud, malware or phishing, defamation, hate speech, harassment, and invasion of privacy.5
Once it enters into force, the Films and Publications Amendment Act will empower the FPB to issue takedown orders for content adjudged to be prohibited (see A5). The amendment has been criticized by the ISPA for, among other things, exceeding the mandate of the FPB and opening online content to state censorship given the quasi-government nature of the FPB and its limited capacity compared to the courts in adjudicating justifiable limitations to freedom of expression.6 The Act was signed into law by the president in October 2019, but it had not implemented by the end of the coverage period.7 Draft regulations to implement the Act published by the FPB in July 2020 appear to classify all website owners as “internet service providers,” vastly expanding the administrative costs of hosting a website, and require all online content providers to submit all online content to the FPB for oversight. The Act had not come into effect as of the publication of the draft regulations, potentially rendering the regulations unconstitutional.8 The draft regulations were not approved as of the end of the coverage period.
- 1“Electronic Communication and Transaction Act, 2002, Section 77,” Government of South Africa, 2002, https://www.gov.za/documents/electronic-communications-and-transactions….
- 2“Complaints Procedure,” ISPA, accessed October 4, 2019, https://ispa.org.za/code-of-conduct/procedure/.
- 3“Code of Conduct,” ISPA, accessed October 4, 2019, https://ispa.org.za/code-of-conduct/.
- 4“Complaints Procedure,” ISPA, accessed October 4, 2019, https://ispa.org.za/code-of-conduct/procedure/.
- 5“Take-down Statistics,” ISPA, accessed March 9, 2021, https://ispa.org.za/tdn/statistics/.
- 6“Films and Publications Amendment Bill [B37B - 2015],” ISPA, September 4, 2018, https://ispa.org.za/wp-content/uploads/2018/09/20180904-ISPA-Submission….
- 7Peter Grealy et al, “Get ready for the Films and Publications Amendment Act,” Bizcommunity, November 6, 2019, https://www.bizcommunity.com/Article/196/740/197635.html.
- 8Janet MacKenzie et al, “South Africa: Draft Films and Publications Amendment Regulations – far reaching implications for online distributors,” Lexology, July 29, 2020, https://www.lexology.com/library/detail.aspx?g=2d825917-37a6-46eb-a862-…
|Do online journalists, commentators, and ordinary users practice self-censorship?||3.003 4.004|
Although the government does not limit or manipulate online discussions, online self-censorship is a growing concern in South Africa. Particularly in the run-up to the 2019 national and provincial elections, the severity of online attacks against journalists increased sharply (see C7), leading to greater self-censorship online. In particular, the leader of the Economic Freedom Fighters (EFF) political party, Julius Malema, has on several occasions attacked and encouraged attacks against journalists online. Analysts contend that these attacks form part of a well-orchestrated cyberbullying strategy to deter other journalists and commentators from issuing reports or utterances critical of the EFF.1
Despite the perception that online self-censorship by journalists has increased, ordinary citizens and journalists, including those who have been subjected to online abuse, continue to report on politically sensitive issues.2
- 1Eusebius McKaiser, “What the EFF, Malema? What about Democracy?,” Mail & Guardian, March 7 2019, https://mg.co.za/article/2019-03-07-what-the-eff-malema-what-about-demo….
- 2Ferial Haffajee “An Army of trolls march on in mindless violence-and nobody is stopping them,” Daily Maverick, March 7, 2019, https://www.dailymaverick.co.za/article/2019-03-07-an-army-of-trolls-ma…. Adriaan Basson, “Are the authorities afraid of Julius Malema”, News 24, March 25, 2019, https://www.news24.com/Columnists/AdriaanBasson/are-the-authorities-afr….
|Are online sources of information controlled or manipulated by the government or other powerful actors to advance a particular political interest?||3.003 4.004|
Manipulation of the online space by political actors—including through bogus social media profiles, targeted commenting on social media posts, and bots—is a growing problem in South Africa, and was especially apparent during the 2019 elections. Election-related disinformation did not persist after the elections, though there was a spike of misinformation relating to COVID-19, prompting a strong government response.
The political disinformation that plagued the May 2019 elections declined in the aftermath of the vote. In the run-up to the elections, the online space was weaponized not only by the EFF but also by other major political parties and their supporters to discredit critics and spread disinformation.1 A study conducted on political disinformation on Twitter in South Africa between 2014 and 2018 revealed that main political and interest groups, including African National Congress (ANC)- and EFF-related accounts, were most active in manipulating the platform, likely using bots and trolls.2
The government and the ruling ANC have not attempted to overtly influence the editorial lines of media outlets. However, in March 2019, the ANC’s head of elections, Fikile Mbalula, reportedly attempted to coerce the South African Broadcasting Corporation (SABC), the public broadcaster, to increase its coverage of the ANC’s election campaigns; Mbalula accused the SABC of a “clampdown” and “blackout” of the party’s campaign activities.3
The 2013 purchase of the Independent Group, a large media conglomerate, by ANC ally Iqbal Survé, and persistent interference with the SABC have taken a toll on fair and balanced media content in South Africa.4
The ongoing state capture inquiry, which examines the influence of the Gupta family and other powerful interests on the government, revealed in January 2019 that several journalists received monthly bribes from the contracting firm Bosasa (now known as African Global Operations) to inform the company of potential negative stories about it, as well as to write articles that presented Bosasa in a flattering light.5 In January 2020, testimony at the revealed that security forces had paid 20 million rands ($1.3 million) to the African News Agency, a newswire company operated by the Independent Group, to carry positive stories about former president Jacob Zuma. The company has denied any wrongdoing.6
- 1Ferial Haffajee “An army of trolls march on in mindless violence-and nobody is stopping them,” Daily Maverick, March 7, 2019, https://www.dailymaverick.co.za/article/2019-03-07-an-army-of-trolls-ma…; Ferial Haffajee, “EFF leads the information war with its cyber army,” Daily Maverick, March 7, 2019, https://www.dailymaverick.co.za/article/2019-03-07-eff-leads-the-inform…;
- 2Kyle Findlay, “Political Interference in South African Twitter,” Superlinear, October 26, 2018, http://www.superlinear.co.za/political-interference-in-south-african-po…; “Investigations reveal Twitter armies behind race divisions and political interference in South Africa”, MyBroadband, October 30, 2018, https://mybroadband.co.za/news/internet/282365-investigation-reveals-tw….
- 3Jamie McKane, “ANC demands more election coverage from SABC ,” MyBroadband, March 3, 2019, https://mybroadband.co.za/news/broadcasting/298046-anc-demands-more-ele….
- 4Anton Harber “The New Age experiment: Government’s attempt to control the media has done industry no favours,“ Daily Maverick, July 5, 2018, https://www.dailymaverick.co.za/opinionista/2018-07-05-the-new-age-expe….
- 5Sarah Smit, “Journalists were paid by Bossasa-Agrizzi,” Mail and Guardian, January 24, 2019, https://mg.co.za/article/2019-01-24-journalists-were-paid-by-bosasa-agr….
- 6Canny Maphanga, “Sanef calls for probe after ANA chief admits it took money from spy agency for 'positive stories,’” January 27, 2021, https://www.news24.com/news24/southafrica/news/sanef-calls-for-probe-af….
|Are there economic or regulatory constraints that negatively affect users’ ability to publish content online?||2.002 3.003|
For the most part, there are no economic or regulatory constraints that significantly affect users’ ability to publish content online. The online environment in South Africa is net neutral, although net neutrality has not been expressly provided for in law or policy.1 The ISPA is at the forefront of promoting net neutrality and believes that it is essential for the transparent management of networks and the prevention of anticompetitive behavior.2 The government has indicated that it intends to include net neutrality in an expected amendment to the ECTA.3
The role of politicized advertising may affect economic viability. In the past, the Gupta-owned progovernment ANN7 news channel and New Age newspaper, both of which ceased operations in 2018, routinely received a massive share of government advertising, reaching in the hundreds of millions of rands.4
Some online platforms are required to pay licensing fees. In November 2020, the FPB finalized revisions to the tariff structure that would require online streaming services to pay a licensing fee per film and per series season that they offer, as opposed to the current structure, which involves payment of a flat fee.5 When originally proposed in 2017, the size of the fee was criticized by industry stakeholders as unjustifiable (in relation to the actual cost of classification) and prohibitive for smaller competitors providing content streaming services.6 The revised fees benefit content distributors with fewer titles, while those with more content pay significantly more than the previous license fee of 795,000 rands ($51,840).7 After some initial resistance, all major content distributors—including Google, Apple, Netflix, and the South African company MultiChoice—registered with the FPB and paid the flat license fees.8
Content published by journalists online is overseen by a self-regulatory body, the Press Ombudsman, which is an independent body set up by the media industry to adjudicate public complaints. Membership in the Press Ombudsman is voluntary.9
- 1“Net Neutrality indicates a functioning democracy,” ISPA Press Release, April 29, 2016, https://ispa.org.za/press_releases/net-neutrality-indicates-a-functioni….
- 2“Net Neutrality indicates a functioning democracy,” ISPA Press Release, April 29, 2016, https://ispa.org.za/press_releases/net-neutrality-indicates-a-functioni….
- 3Duncan McLeod, “SA Government still keen on Net Neutrality rules,” Tech Central, December 12 2017, https://techcentral.co.za/sa-government-still-keen-net-neutrality-rules….
- 4Ray Mahlaka, “Governments R260m largess to Gupta media companies,” The Media Online, September 12, 2018, https://themediaonline.co.za/2018/09/governments-r260m-largesse-to-gupt….
- 5The Films and Publications Board and online content regulation, Ellipsis, November 6, 2020, https://www.ellipsis.co.za/the-film-publications-board-and-online-conte…; Jan Vermuelen, “What Netflix will get for its R1-million FPB licence fee,” MyBroadband, October 4, 2017, https://mybroadband.co.za/news/broadcasting/231367-what-netflix-will-ge….
- 6Jan Vermeulen, “Netflix – don’t pay R795,000 to the FPB,” MyBroadband, March 23, 2016, https://mybroadband.co.za/news/columns/159191-netflix-dont-pay-r795000-….
- 7Gareth van Zyl, “EXCLUSIVE: FPB asks Netflix to pay R795k licensing fee,” FinTech24, April 6, 2016, https://www.fin24.com/Tech/News/fpb-asks-netflix-to-pay-r795k-licensing….
- 8“More online streaming companies aligning to South African content regulation,” Film and Publication Board, February 21, 2020, https://web.archive.org/web/20201129105545/https://www.fpb.org.za/wp-co….
- 9“The Press Ombudsman,” Press Council, https://presscouncil.org.za/.
|Does the online information landscape lack diversity and reliability?||3.003 4.004|
Online media in South Africa is vibrant, representing a wide range of international and national viewpoints and perspectives.
Web-only news platforms, such as the Daily Maverick and News24, have become particularly popular in recent years, with key news stories often broken online before in print or broadcast outlets, illustrating how online media is growing as a primary news source.
While content in both English and Afrikaans is well-represented online, 9 of South Africa’s 11 official languages are underrepresented on the internet, including on government websites. Additionally, the perspectives of women, rural dwellers, persons with disabilities, sexual minorities, and ethnic and religious minorities are underrepresented and marginalized in the media, including online media.1
False information about symptoms, prevention, and cures for COVID-19 spread online in South Africa, particularly over WhatsApp, early in the pandemic.2 Alongside emergency regulations that criminalized sharing COVID-19 misinformation (see C1), which led to several arrests at the start of the pandemic (see C3), the government partnered with technology companies and fact-checkers to mitigate the spread of such information.3 The strong response appears to have contributed to a reduction in the spread of rumors and hoaxes about COVID-19 online.
- 1“African Media Barometer: South Africa,” Friedrich-Ebert-Stiftung (FES), 2018, http://library.fes.de/pdf-files/bueros/africa-media/15527.pdf.
- 2Yomi Kazeem, “With over 250,000 cases, misinformation is compromising Africa’s Covid-19 response,” Quartz Africa, July 20, 2020, https://qz.com/africa/1871683/whatsapp-is-a-key-source-of-covid-19-info…; https://undark.org/2020/04/03/fake-news-south-africa-covid-19/
- 3“Fake news – Coronavirus COVID-19,” Government of South Africa, August 2020, https://www.gov.za/coronavirus/fakenews?gclid=EAIaIQobChMI4-634enC6gIVi…; Yomi Kazeem, “African governments, Facebook and Twitter are fighting to dispel misinformation on coronavirus,” Quartz Africa, March 19, 2020, https://qz.com/africa/1820712/coronavirus-in-africa-facebook-twitter-fi…
|Do conditions impede users’ ability to mobilize, form communities, and campaign, particularly on political and social issues?||6.006 6.006|
Neither the government nor nonstate actors restrict the use of digital tools for mobilization and campaigning. South Africa has a robust online community that addresses contemporary social, economic, and political issues. For instance, in 2018, successful social media campaigns addressed issues such as the blood donation drive by the South African National Blood Services (SANBS), the changing nature of traditional family structures, and gender stereotyping.1 In September 2019, an online movement under the hashtag #ImStaying celebrated positive aspects of living in South Africa to act as a counter-narrative to negativity about the country, though the page has attracted criticism for racial insensitivity and elitism.2
Local sources report that pressure by online advocacy groups has had an impact on ICASA’s efforts to address affordability barriers to internet access (see A2).
- 1“Top three social media campaigns of 2018,” Media Update, December 14, 2018, https://www.mediaupdate.co.za/social/145969/top-three-social-media-camp….
- 2“Facebook group “#I’mStaying responds to “extremely elitist” backlash,” Cape Talk, October 2, 2019, http://www.capetalk.co.za/articles/362499/facebook-group-imstaying-resp….
|Do the constitution or other laws fail to protect rights such as freedom of expression, access to information, and press freedom, including on the internet, and are they enforced by a judiciary that lacks independence?||4.004 6.006|
There are no specific legislative provisions to protect online modes of expression. However, the constitution provides for freedom of the press and freedom of expression, among other guarantees. It also includes constraints on “propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender, or religion and that constitutes incitement to cause harm.”1 The right of access to information held by the state, and in limited circumstances by private bodies, is also guaranteed by the constitution.2 These rights apply to all members of the public and to journalists equally, whether they operate online or offline. However, observers have expressed concern that, if signed into law, the Films and Publications Amendment Act will make online content vulnerable to censorship (see B3).
In March 2020, the government declared a three-month state of disaster under the Disaster Management Act of 2002 in response to the COVID-19 pandemic. The regulations issued under the state of disaster imposed a national lockdown, limiting freedom of expression, freedom of movement, and other rights that are derogable under the constitution.3 The state of disaster remains in place as of August 2021 following numerous extensions by the government, though lockdown restrictions have varied.4
The judiciary is generally regarded as independent and in recent years has been seen as the branch of government that has been most dedicated to upholding the rule of law by constraining the executive and legislative branches from arbitrary actions.5
The police and other law enforcement agencies have been criticized for failing to adequately investigate and prosecute Economic Freedom Fighters (EFF) supporters who have threatened and attacked journalists, contributing to an environment of impunity and threatening rights guaranteed in the constitution.6
- 1Constitution of the Republic of South Africa, Bill of Rights, Chapter 2, Section 16, https://www.gov.za/DOCUMENTS/CONSTITUTION/CONSTITUTION-REPUBLIC-SOUTH-A….
- 2Constitution of the Republic of South Africa, Bill of Rights, Chapter 2, Section 32, https://www.gov.za/DOCUMENTS/CONSTITUTION/CONSTITUTION-REPUBLIC-SOUTH-A….
- 3“Government Gazette, Vol. 657 No. 43107,” March 18, 2020, www.gpwonline.co.za/Gazettes/Gazettes/43107_18-3_COGTA.pdf; Melodie Labuschaigne and Ciara Staunton, “Covid-19: State of Disaster in South Africa,” Verfassungsblog, April 11, 2020, https://verfassungsblog.de/covid-19-state-of-disaster-in-south-africa/; “Government Gazette, Vol. 658, No. 43199,” April 2, 2020, http://www.gpwonline.co.za/Gazettes/Gazettes/43199_02-4_COGTA.pdf.
- 4“South Africa extends state of disaster by another month,” Business Tech, August 12, 2021, https://businesstech.co.za/news/government/512734/south-africa-extends-….
- 5“South Africa: Rule of Law Index 2019,” World Justice Project, accessed October 4, 2019, http://data.worldjusticeproject.org/#/groups/ZAF.
- 6Ferial Haffajee “An Army of trolls march on in mindless violence-and nobody is stopping them,” Daily Maverick, March 7, 2019, https://www.dailymaverick.co.za/article/2019-03-07-an-army-of-trolls-ma….
|Are there laws that assign criminal penalties or civil liability for online activities, particularly those that are protected under international human rights standards?||2.002 4.004|
A number of laws are vulnerable to being misused to prosecute online journalists and activists. The offense of crimen injuria, or insulting the dignity of a person, has been invoked to prosecute online harassment.1
The state of disaster regulations passed in March 2020 criminalize “any statement, through any medium, including social media, with the intention to deceive any other person about COVID-19; COVID-19 infection status of any person; or any measure taken by the Government to address COVID-19.” The penalty is a fine or imprisonment of up to six months, or both.2
Defamation is a criminal offense, though prosecutions are rare and, until recently, defamation charges were not brought against people for online activity. The African National Congress (ANC) committed to scrapping criminal defamation in September 2015, but there have been no moves to introduce legislation to fulfill this promise.3
In May 2021, the government passed the Cybercrimes Act, 2020, which contains some provisions regulating online speech. For instance, the law bars electronic content that incites or threatens violence to people or damage to property, and also criminalizes the nonconsensual sharing of intimate images. Violators of those provisions face a penalty of up to three years’ imprisonment, a fine, or both. A commencement date for the Cybercrimes Act was not set as of the end of the coverage period.4 These prohibitions do not directly criminalize online activities protected under international human rights standards; however, some commentators suggested the provision barring incitement to violence might be used to prosecute people for social media posts supporting the July 2021 unrest (see C3).5
Several iterations of the Cybercrimes Act preceded its passage. The first, the Cybercrimes and Cybersecurity Bill, was first introduced in 2015 and was criticized by civil society activists for its ambiguous language, which they claim has the potential to infringe on freedom of expression.6 In the second version of the bill, introduced in 2017, a chapter on “malicious communications” would penalize the dissemination of a “data message which is harmful,” the definition of which includes content that is “inherently false,” without further specifications.7 In October 2018, a substantially revised third version of the bill, renamed the Cybercrimes Bill, was presented with no language on cybersecurity.8 It also addressed the ambiguous definition of “unlawful,” bringing it in line with the Protection of Personal Information (POPI) Act of 2013, and dispensed with crimes related to “critical infrastructure.”9 Following several rounds of amendments, that bill was adopted as law in May 2021.10
- 1Mpiletso Motumi and Nokuthula Zwane, “Troll punished for abuse of local celeb Uyanda Mbuli,” IOL, March 15, 2018, https://www.iol.co.za/the-star/troll-punished-for-abuse-of-local-celeb-….
- 2“Government Gazette, Vol. 657 No. 43107,” March 18, 2020, (downloaded via Committee to Protect Journalists https://cpj.org/2020/03/south-africa-enacts-regulations-criminalizing-d….)
- 3“The case against criminal defamation,” Mail & Guardian, September 23, 2015, https://mg.co.za/article/2015-09-23-the-case-against-criminal-defamatio….
- 4Sections 14, 15, and 16, Cybercrimes Act, 2020, Government Gazette Vol. 672 1 June 2021 No. 44651, Republic of South Africa, June 1, 2021, http://www.gpwonline.co.za/Gazettes/Gazettes/44651_01-06_CybercrimesAct…; “South Africa: President assents to Cybercrimes Act,” Data Guidance, June 3, 2021, https://www.dataguidance.com/news/south-africa-president-assents-cyberc….
- 5“These WhatsApp messages and social media posts will soon land you with a fine or jailtime in South Africa,” Business Tech, July 17, 2021, https://businesstech.co.za/news/technology/506598/these-whatsapp-messag….
- 6The Republic of South Africa National Assembly, Cybercrimes and Cybersecurity Bill of 2015, proposed section 75, accessed October 4, 2019, https://web.archive.org/web/20190927211406/http://www.justice.gov.za/le….
- 7“Cybercrimes and Cybersecurity Bill 2017, Chapter 3, Section 17,” Government of South Africa, accessed October 4, 2019, https://www.ellipsis.co.za/wp-content/uploads/2017/02/b-6-2017-cybercri….
- 8“The Cybercrimes Bill,” Ellipsis, June 23, 2020, https://www.ellipsis.co.za/cybercrimes-and-cybersecurity-bill/.
- 9“The Cybercrimes Bill,” Ellipsis, June 23, 2020, https://www.ellipsis.co.za/cybercrimes-and-cybersecurity-bill/.
- 10Ridwaan Boda and Jessica Steele, “Cybercrimes Bill To Be Submitted To The SA President For Signature,” December 10, 2020, Mondaq, https://www.mondaq.com/southafrica/security/1014648/cybercrimes-bill-to…. ; Hunter Murray and Allison Tilley, “Cybercrimes Bill defanged but our privacy rights are still not secured,” Daily Maverick, December 21, 2018, https://www.dailymaverick.co.za/article/2018-12-21-cybercrimes-bill-def….
|Are individuals penalized for online activities, particularly those that are protected under international human rights standards?||6.006 6.006|
Score Change: The score improved from 5 to 6 as no internet users were arrested for spreading false information relating to the COVID-19 pandemic online, a reversal from the previous period.
No individual was prosecuted, detained, or sanctioned by the state for protected political, social, or religious speech online during the coverage period.
At least eight individuals were arrested in early 2020, during the previous coverage period, for spreading false information related to COVID-19; none appear to have been sentenced. The arrests were made pursuant to the state of disaster regulations, which prohibit the intentional dissemination of false information relating to the virus.1 One of those detained, Stephen Birch, was arrested for circulating misleading information about test kits online and charged under the March 2020 emergency regulations.2 Celebrity Somizi Mhlongo was charged with violating the regulations for suggesting during an Instagram Live stream that Transport Minister Fikile Mbalula told him that the state of disaster lockdown would be extended; Mhlongo turned himself into the police and was released on bail.3
In August 2021, after the coverage period, at least two people were arrested for their social media posts during the civil unrest that spread throughout South Africa the previous month. When former president Zuma was sentenced to 15 months’ imprisonment for contempt of court in relation to an ongoing corruption investigation in early July, protests in support of Zuma sparked widespread civil unrest. Over 300 people died, primarily in KwaZulu-Natal and Gauteng provinces. South African authorities committed to prosecuting people who supported the unrest on social media.4 Both of those arrested were charged under the 1956 Riotous Assemblies Act, and one was released on bail in late August; it remains unclear for what social media content they were charged as of the date of the hearings.5
Also in August 2021, South African police released a statement that authorities had identified people spreading “inflammatory messages on various social media platforms advocating for violence” and “warned” them that doing so is a criminal offense.6
- 1“Fake news peddlers feel the full force of the law,” Bizcommunity, April 8, 2020, https://www.bizcommunity.com/Article/196/740/202591.html; Geoffrey York, “Arrests mounts as Africa battles a destructive wave of COVID-19 disinformation,” The Global and Mail, April 7, 2020, https://www.theglobeandmail.com/world/article-arrests-mount-as-africa-b…
- 2Andrea Chothia, “Fake news ‘pusher’ Stephen Birch released on a warning,” The South African, April 7, 2020, https://www.thesouthafrican.com/news/stephen-birch-court-latest-fake-ne…; “Government welcomes arrest of suspect who peddled fake news on Coronavirus COVID-19 test kits,” Government of South Africa, April 7, 2020, https://www.gov.za/speeches/government-welcomes-arrest-suspect-who-pedd…
- 3Sesona Ngqakamba, “Somizi granted R1500 bail after handing himself over to police after lockdown comment,” News24, April 14, 2020, https://www.news24.com/news24/southafrica/news/somizi-granted-r1-500-ba…
- 4Mawande AmaShabalala, “'She will have to explain her tweets': ANC to hold Zuma's daughter accountable for Twitter posts,” Times Live, July 12, 2021, https://www.timeslive.co.za/politics/2021-07-12-she-will-have-to-explai….
- 5Ferial Haffajee, “‘Sphithiphithi Evaluator’ cuts a haggard figure in court after the RET social media star is charged with inciting violence,” Daily Maverick, August 30, 2021, https://www.dailymaverick.co.za/article/2021-08-30-sphithiphithi-evalua…; Thapelo Lekabe, “Alleged KZN unrest instigator appears briefly in court, case postponed,” The Citizen, August 30, 2021, https://www.citizen.co.za/news/south-africa/courts/2600290/alleged-kzn-….
- 6“Media Statement by the National Joint Operational Intelligence Structure (NatJOINTS),” South African Police Service, August 22, 2021, https://www.saps.gov.za/newsroom/selnewsdetails.php?nid=34670.
|Does the government place restrictions on anonymous communication or encryption?||3.003 4.004|
South Africa has few restrictions on anonymous communication or encryption. There are no laws requiring internet users, website owners, or bloggers in South Africa to register with the government or any of its agencies to operate. Users are also not required to use their real names when posting comments on the internet, including on social media platforms.
The Regulation of Interception of Communications and Provision of Communication-related Information Act (RICA) of 2002, however, compromises users’ rights to anonymous communication by requiring mobile subscribers to provide national identification numbers, copies of national identification documents, and proof of physical address to service providers.1 An identification number is legally required for any SIM card purchase, and registration requires proof of residence and an identity document.2 Beyond privacy concerns, the RICA requirements can be an obstacle to mobile phone usage for the many South Africans who live in informal settlements with no recognized address.
Users are not explicitly prohibited from using encryption to safeguard their communications. However, RICA empowers a judge to force the disclosure of decryption keys or to require assistance in decryption in specified circumstances, upon approval of a request made by the police, military, intelligence, or other law enforcement agencies.3 Similarly, the Cybercrimes Act, which was passed in May 2021 but was not yet in force by the end of the coverage period, compels decryption to facilitate the search and seizure of stored data under the provisions of that law (see C6).4
- 1“Duties of Telecommunication Service Provider and Customer chapter 7,” Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002, https://web.archive.org/web/20190531185715/http://www.justice.gov.za/le….
- 2Nicola Mawson, “‘Major’ RICA Threat Identified,” ITWeb, May 27, 2010, https://www.itweb.co.za/content/lwrKxq3Dm84vmg1o/G3mYZRXM9yMOgA8L.
- 3Sections 16 and 21(3) Regulation of Interception of Communication Act, https://web.archive.org/web/20190531185715/http://www.justice.gov.za/le….
- 4Section 29, Cybercrimes Act, 2020, Government Gazette Vol. 672 1 June 2021 No. 44651, Republic of South Africa, June 1, 2021, http://www.gpwonline.co.za/Gazettes/Gazettes/44651_01-06_CybercrimesAct…; “South Africa: President assents to Cybercrimes Act,” Data Guidance, June 3, 2021, https://www.dataguidance.com/news/south-africa-president-assents-cyberc….
|Does state surveillance of internet activities infringe on users’ right to privacy?||2.002 6.006|
Strong concerns about potentially unchecked government surveillance powers over online activity remain, but some legal safeguards related to surveillance do exist. The RICA does not permit the blanket collection of telecommunications metadata but provides for a stringent process for the targeted collection of metadata, the interception of communications, and the decryption of private communications, all of which require a court order.1
In September 2019, a High Court ruled that numerous provisions of RICA were unconstitutional.2 The amaBhungane Centre for Investigative Journalism had filed a case in April 2017 challenging the constitutionality of RICA on several fronts. The High Court ruled that the bulk surveillance conducted by the National Communication Centre (NCC) is unlawful because there is no legislation that authorizes the state to conduct such interception of private communications. The ruling postponed the resulting invalidation of RICA for two years to permit parliament to pass legislation amending the unconstitutional provisions and imposed interim changes to the law. The interim changes include requiring the NCC to notify individuals who have their communications intercepted within 90 days after the surveillance has been terminated and to disclose in its application when the target of surveillance is a journalist or lawyer. The High Court ruling was confirmed by the Constitutional Court in February 2021, and extended the period before RICA’s invalidation to three years.3
Under RICA, the threshold for granting a court order is low, oversight is insufficient, and in the past users did not have to be informed that their communications had been intercepted.4 A loophole allows communications to be intercepted under the Criminal Procedure Act, which lacks certain safeguards and has been abused by law enforcement agencies.5 Up to 95 percent of court orders involving the interception of communications are not approved by a RICA judge; most of the court orders outside of RICA are for metadata. The metadata of between 70,000 and 195,000 mobile users is collected every year.6 Telecommunications service providers are also required to store the metadata of all customers for three to five years, a provision that concerns privacy advocates.7
South Africa has the technical capacity to undertake bulk and targeted surveillance, and it has been acknowledged that bulk surveillance is being undertaken by various government agencies.8 The NCC is responsible for intercepting foreign signals and does so without oversight; the agency has previously disclosed that the content it intercepts includes local signals as well.9
The South African police possess international mobile subscriber identity (IMSI) catcher technology, also known as “stingrays,” which permit the bulk interception of mobile phone traffic, although the extent of its use is uncertain.10 The Ministry of State Security does not believe that IMSI catchers are governed by RICA, and use is therefore unregulated.11 The government has claimed that the technology is used only for national security matters.12 Nonetheless, consistent weaknesses in oversight mechanisms within the state security departments leave surveillance open to abuse; in addition, the interception of communications that originate outside South Africa are essentially unregulated.13 In light of the court rulings on RICA, the state’s use of IMSI catchers is illegal unless new legislation is passed to regulate such use for bulk surveillance.
South Africa's intelligence services are also reported to be using a social media analytics and monitoring tool called Media Sonar, which allows for the searching and analyzing of social media content of users within a defined geolocation and through the use of keyword searches.14
Journalists have been frequently targeted for surveillance by the state, usually as a means of identifying confidential sources.15 For example, in March 2021, the online outlet News24 disclosed that officers with the police intelligence division had targeted News24 journalists with location tracking and communications interception tools, apparently in response to the outlet’s investigation into unrest within the division.16 In May 2018, it emerged that the telephone conversations of investigative journalist Jacques Pauw had been intercepted while he was reporting on state capture during the Zuma administration.17 Nonstate actors have also targeted journalists for surveillance purposes. In March 2018, the Mail & Guardian disclosed that the telephone records of journalist Athandiwe Saba, who had reported critically on the Railway Safety Regulator, were obtained by a private investigator hired by the regulator, likely with the assistance of the police or National Prosecuting Authority.18
In a 2018 report by Citizen Lab, a Canadian internet watchdog, South Africa is listed as one of 45 countries worldwide using Pegasus, a targeted spyware software developed by the Israeli technology firm NSO. Pegasus is known to be used by governments to spy on journalists, human rights defenders, and the opposition.19
Concerns over the potentially unchecked government surveillance powers over online activity remain. Hopes that the powers of the security services would be checked were raised when Dr. Setlhomamaru Isaac Dintwe was appointed as the inspector general of intelligence (IGI) in 2017, after the position had been vacant for an extended period.20 As an independent actor accountable to parliament, the IGI was expected to strengthen oversight mechanisms for intelligence agencies and determine their compliance with the legislative framework and constitution.21 However, upon assuming office, Dintwe had difficulty fulfilling his mandate as a result of interference by leadership in the intelligence community. In April 2018, he filed an urgent court application to prohibit Arthur Fraser, the director general of the State Security Agency (SSA), from intervening in the execution of his mandate.22 Fraser was subsequently transferred out of the SSA.23 Dintwe has continued to face difficulty in fulfilling his mandate throughout his term because of issues with staffing, finances, and the independence of his office.24
Beyond RICA, the POPI Act serves as South Africa’s legal framework protecting the constitutional right to privacy. POPI includes provisions to protect users’ online security, privacy, and data, and allows an individual to bring civil claims against those who contravene the law (see C6).25
In February 2019, a private company, Vumacam, commenced the installation of 15,000 closed-circuit television (CCTV) cameras in a number of Johannesburg suburbs,26 as part of an effort to address rising crime. Vumacam sells its footage to security companies operating in neighborhoods within its coverage area. Analysts expressed concern that the CCTV network is potentially a tool for unchecked mass surveillance and racialized profiling of black and brown people in public spaces.27 Vumacam denied that its cameras are enabled with facial recognition technology and stated that it is not building a database on the movements of private citizens or engaging in racial profiling.28 Concerns have also been raised that Vumacam is not registered with the Private Security Industry Regulatory Authority.29
Provisions in the Cybercrimes and Cybersecurity Bill that could have enhanced the state’s interception powers were removed in October 2018 (see C2).
- 1Sections 17 and 19, Regulation of Interception of Communication Act, https://web.archive.org/web/20190531185715/http://www.justice.gov.za/le….
- 2“Amabhungane Centre for Investigative Journalism v. Minister of Justice and Correctional Services, CASE NO: 25978/2017,” High Court of South Africa, Gauteng Division, Pretoria, September 16, 2019, https://amabhungane.org/wp-content/uploads/2019/09/Judgment-AMABHUNGANE….
- 3Dario Milo, “Advocacy comment: AmaB’s RICA victory – big brother can no longer watch us with impunity,” February 8, 2021, AmaBhungane Centre for Investigative Journalism, https://amabhungane.org/stories/210208-advocacy-comment-amabhunganes-ri…
- 4Regulation of Interception of Communications Act, https://web.archive.org/web/20190531185715/http://www.justice.gov.za/le….
- 5Heidi Swart, “Cell phone privacy: Law enforcement pulls 70,000 subscriber call records each year and that’s a minimum estimate,” August 23, 2017, Daily Maverick, 2018, https://www.dailymaverick.co.za/article/2017-08-23-cell-phone-privacy-l….
- 6Heidi Swart,”Your cellphone records and the law: The Legal loopholes that lets state spying run rampant,” May 20, 2018, https://www.dailymaverick.co.za/article/2018-05-20-your-cellphone-recor….
- 7Combined reading of sections 30(1) (b) and 30 (2) (a) (iii) Regulation of Interception of Communication Act, https://web.archive.org/web/20190531185715/http://www.justice.gov.za/le….
- 8Heidi Swart, “Communications surveillance by South African Intelligence Services,” Media Policy and Democracy Project, February 2016, https://www.mediaanddemocracy.com/uploads/1/6/5/7/16577624/comms-survei….
- 9“Two states admit bulk interception practices: why does it matter?,” Privacy International, August 15, 2019, https://privacyinternational.org/node/3164.
- 10Heidi Swart, “Communications surveillance by South African Intelligence Services,” Media Policy and Democracy Project, February 2016, https://www.mediaanddemocracy.com/uploads/1/6/5/7/16577624/comms-survei….
- 11Jane Duncan, “Spies are all set to grab your metadata,” Mail and Guardian, September 10, 2015, https://mg.co.za/article/2015-09-10-spies-are-all-set-to-grab-your-meta….
- 12Simnikiwe Mzekandaba, “Grabber used for ‘national security,’” ITWeb, September 8, 2015, https://www.itweb.co.za/content/gxnklOvzZ1Jv4Ymz.
- 13Heidi Swart, “Communications surveillance by South African Intelligence Services,” Media Policy and Democracy Project, February 2016, https://www.mediaanddemocracy.com/uploads/1/6/5/7/16577624/comms-survei….
- 14Heidi Swart, “Government surveillance of social media is rife. Guess who’s selling your data?,” Daily Maverick, April 25, 2018, https://www.dailymaverick.co.za/article/2018-04-25-government-surveilla….
- 15“Spooked: Surveillance of Journalists in SA,” Right2Know, June 2018, https://www.r2k.org.za/wp-content/uploads/R2K-Surveillance-of-Journalis….
- 16Peiter du Toit, “Rogue Crime Intelligence cops 'bug' News24 investigative journalist,” News24, March 8, 2021, https://www.news24.com/news24/SouthAfrica/Investigations/breaking-rogue….
- 17“The President’s keepers: The book that brought the house own,” Daily Maverick, May 21, 2018, https://www.dailymaverick.co.za/opinionista/2018-05-21-the-presidents-k….
- 18Murray Hunter, ”State surveillance a threat to journalism” Groundup, March 9, 2018, https://www.groundup.org.za/article/spying-mg-reporter-shows-how-wrong-….
- 19Bill Marczak, John Scott-Railton, Sarah McKune, Bahr Abdul Razzak, and Ron Deibert “Hide And Seek: Tracking Nso Group ’s Pegasus Spyware To Operations In 45 Countries,” Citizen Lab, September 18, 2019, HTTPS://CITIZENLAB.CA/2018/09/HIDE-AND-SEEK-TRACKING-NSO-GROUPS-PEGASUS-SPYWARE-TO-OPERATIONS-IN-45-COUNTRIES/.
- 20Chantall Presence, “Setlomamaru Dintwe appointed as SA's top spook,” IOL, March 13, 2017, https://www.iol.co.za/news/politics/setlomamaru-dintwe-appointed-as-sas….
- 21“About Us,” Office of the Inspector-General of Intelligence, https://web.archive.org/web/20190825080702/http://www.oigi.gov.za/.
- 22“Arthur Fraser vs Inspector General of Intelligence in court on Thursday over security clearance,” News24, April 17, 2018, https://www.news24.com/SouthAfrica/News/arthur-fraser-vs-inspector-gene….
- 23Caryn Dolley, “Spy watchdog pushes on with probes, despite 'threats and intimidation',” January 18, 2019, https://www.news24.com/SouthAfrica/News/spy-watchdog-pushes-on-with-pro….
- 24Steven Kretzmann, “Meddling ministers and dodgy spooks: Inspector-General of Intelligence lays bare his woes to Zondo”, Daily Maverick, April 21, 2021, https://www.dailymaverick.co.za/article/2021-04-21-meddling-ministers-a….
- 25Lucien Pierce, “Protection of Personal Information Act: Are you compliant?,” Mail & Guardian, December 2, 2013, https://mg.co.za/article/2013-12-02-protection-of-personal-information-….
- 26Timothy Rangongo, “These Joburg suburbs are getting 15,000 CCTV cameras” Business Insider, February 15, 2019, https://www.businessinsider.co.za/vumatel-launches-vumacam-cctv-securit….
- 27Sashni Pather, “Surveillance State: Big brother lands in Joburg,” Financial Mail, June 13, 2019, https://www.businesslive.co.za/fm/features/2019-06-13-surveillance-stat…; “Smart CCTV networks are driving an AI powered apartheid in South Africa,” VICE, November 22, 2019, https://www.vice.com/en_us/article/pa7nek/smart-cctv-networks-are-drivi….
- 28Samuel Mungadze, “Vumacam defends Joburg smart camera network,” IT Web, December 3, 2019, https://www.itweb.co.za/content/Kjlyr7wdroAMk6am.
- 29Yanga Sibembe, “CCTV surveillance camera roll out on Joburg suburban streets raises alarm over privacy rights” Daily Maverick, March 26, 2019, https://www.dailymaverick.co.za/article/2019-03-26-cctv-surveillance-ca….
|Does monitoring and collection of user data by service providers and other technology companies infringe on users’ right to privacy?||3.003 6.006|
The Protection of Personal Information Act of 2013, South Africa’s data protection framework, entered fully into force on July 1, 2020. RICA provides for a legal process for the interception of communications, and service providers are, under certain circumstances, required to aid the government in surveillance (see C5).
POPI entered into force following a presidential proclamation in June 2020. A few elements of POPI had entered into force by presidential proclamation in 2014, including the establishment of the South African Information Regulator, which was not able to act in the six-year interim. The deadline for implementation of POPI is July 1, 2021.1
POPI establishes safeguards for the processing of personal data, including requirements for consent, retention limitations, and notice and limitations on automated processing and cross-border data transfers. POPI defines personal data broadly, covering information about individuals, their beliefs, and their legal identity, and also establishes more extensive safeguards for especially sensitive personal data. The law includes a standard set of exceptions, including national security and criminal matters. Penalties for contravening the law are stiff, including prison terms and fines of up to 10 million rands ($652,086).2
In May 2021, the government passed the Cybercrimes Act, 2020, which establishes broad authorities by which officials can access data stored by service providers and other companies when those data relate to crimes established by the law. Along with several provisions that relate to online activities (see C2), the Cybercrimes Act establishes a broad range of violations relating to computer use. Seizure of data under the Cybercrimes Act generally requires a warrant, though the law establishes a broad range of exceptions to that requirement. A commencement date for the Cybercrimes Act was not set as of the end of the coverage period.3
Amendments to the state of disaster regulations (see C1) published in April 2020 require telecommunications and internet service providers to share the geolocation data of people known or suspected to have contracted COVID-19 as a part of the national contact tracing effort. The data is subject to use limitations, as well as retention limitations and a notice provision tied to the termination of South Africa’s state of disaster, which remains ongoing as of August 2021.4
According to RICA, service providers, including ISPs, are required to use systems with the technical capacity for communications to be intercepted; they are also required to retain customer metadata for three to five years.5 RICA specifically requires service providers to intercept and provide the communications of their customers upon a judge’s directive.6 The Cybercrimes Act also expands the scope of real-time communications interception under RICA.7 In practice, however, the bulk of requests for information are not made through RICA and are thus not transparent or subject to appeal (see C5). However, neither RICA nor POPI impose data localization requirements.
While the ECTA does not require ISPs to actively monitor content or to seek information on unlawful activity, the minister of communications may, under certain circumstances, require ISPs to provide information on illegal activities of their users or information that facilitates the identification of users.8
- 1“Protection of Personal Information Act, 2013,” Information Regulator South Africa, 2013, https://www.justice.gov.za/inforeg/docs/InfoRegSA-POPIA-act2013-004.pdf; “This is when South Africa’s new personal information laws will come into effect – what you need to know,” Businesstech, June 22, 2020, https://businesstech.co.za/news/technology/409567/this-is-when-south-af….
- 2“Protection of Personal Information Act, 2013,” Information Regulator South Africa, 2013, https://www.justice.gov.za/inforeg/docs/InfoRegSA-POPIA-act2013-004.pdf
- 3Chapter 4, Cybercrimes Act, 2020, Government Gazette Vol. 672 1 June 2021 No. 44651, Republic of South Africa, June 1, 2021, http://www.gpwonline.co.za/Gazettes/Gazettes/44651_01-06_CybercrimesAct…; “South Africa: President assents to Cybercrimes Act,” Data Guidance, June 3, 2021, https://www.dataguidance.com/news/south-africa-president-assents-cyberc….
- 4Government Gazette, Vol. 658, No. 43199,” April 2, 2020, http://www.gpwonline.co.za/Gazettes/Gazettes/43199_02-4_COGTA.pdf.
- 5Combined reading of sections 30(1) (b) and 30 (2) (a) (iii) Regulation of Interception of Communication Act, https://web.archive.org/web/20190531185715/http://www.justice.gov.za/le….
- 6“Sections 16 to 19, Regulation of Interception of Communication Act,” Government of South Africa, 2002, http://www.justice.gov.za/legislation/acts/2002-070.pdf.
- 7Section 40, Cybercrimes Act, 2020, Government Gazette Vol. 672 1 June 2021 No. 44651, Republic of South Africa, June 1, 2021, http://www.gpwonline.co.za/Gazettes/Gazettes/44651_01-06_CybercrimesAct…; “South Africa: President assents to Cybercrimes Act,” Data Guidance, June 3, 2021, https://www.dataguidance.com/news/south-africa-president-assents-cyberc….
- 8“Section 78, Electronic Communication and Transaction Act 2002,” Government of South Africa, 2002, https://www.gov.za/documents/electronic-communications-and-transactions….
|Are individuals subject to extralegal intimidation or physical violence by state authorities or any other actor in relation to their online activities?||4.004 5.005|
Cases of extralegal intimidation or violence reported against bloggers, journalists, and online users declined sharply after the May 2019 elections. Women and LGBT+ people routinely experience online harassment in South Africa.
In March 2020, Azarrah Karim, a journalist for the online newspaper News24, was shot at by police officers while covering police dispersing crowds with rubber bullets in Johannesburg during the first day of the lockdown, even after she identified herself as press.1 Karim was later mocked by officers when she filed a statement at the local police station.2
Members of the EFF, including leader Julius Malema, have attacked and encouraged attacks against journalists online on several occasions. In March 2019, for example, veteran journalist Karima Brown mistakenly posted a message directed to her staff on a WhatsApp Group that included EFF members. In response, Malema posted a screenshot of the message that contained Brown’s mobile number on Twitter. Brown then received a barrage of abusive and threatening messages from EFF supporters.3 Several other journalists, including Adriaan Basson of News244 and Pauli van Wyk of the Daily Maverick, have also faced online attacks by Malema and supporters of the EFF.
Although the EFF has threatened online journalists more prominently and apparently with more frequency than other political actors, supporters of the ANC have also been known to threaten and harass online critics. In September 2018, a prominent ANC member allegedly sent Sunday Times journalist Qaanitah Hunter an image of a gun in a text message, in response to an article she wrote about former president Zuma.5
The South African National Editors’ Forum (SANEF) took the EFF to court over their alleged enabling of intimidation and harassment of journalists. The case was dismissed in October 2019 for technical reasons relating to the legislative provisions that SANEF attempted to rely on, which the court ruled were not applicable.6
Online harassment on the basis of gender and sexuality is rampant in South Africa, and racist language is common. Almost one-quarter of South African women report experiencing online gender-based violence, according to an August 2020 report by Pollicy, a technology consulting firm, that surveyed 536 South African women.7 In a 2018 report by Gender Links, 30 percent of women journalists surveyed reported experiencing some form of online violence.8 A survey of LGBT+ youth released in April 2020 found that 82 percent reported experiencing harassment online because of their identity.9 A report from PeaceTech Lab and Media Monitoring Africa found a sharp increase in racist and racially discriminatory terminology online during the May 2019 elections.10
- 1“Police clash with Joburg residents, News24 reporter caught in crossfire,” News24, March 27, 2020, https://www.news24.com/news24/southafrica/news/police-clash-with-joburg…
- 2Riaan Grobler, “’They missed? What a waste! Cops joke about shooting at News24 reporter during lockdown,” News24, April 2, 2020, https://www.news24.com/news24/southafrica/news/lockdown-they-missed-wha…
- 3“Why does Julius fear the Media?,” Mail and Guardian, March 8, 2019, https://mg.co.za/article/2019-03-08-00-why-does-julius-fear-the-media.
- 4“Julius Malema: I will stop inviting the Media,” PoliticsWeb, November 28, 2018, https://www.politicsweb.co.za/news-and-analysis/malema-i-will-stop-invi….
- 5Angela Quintal, “Discredited, threatened, attacked: challenges of covering South Africa's election in the digital age,” Committee to Protect Journalists, July 1, 2019, https://cpj.org/blog/2019/07/south-africa-election-journalists-online-h….
- 6“South African National Editor’s Forum and Others v Economic Freedom Fighters and Another, Case Number: 90405/18,” High Court of South Africa, Gauteng Division, Pretoria, October 24, 2019, http://www.saflii.org/za/cases/ZAEQC/2019/6.html.
- 7Neema Iyer, Bonnita Nyamwire, and Sandra Nabulega, “Alternate Realities, Alternate Internets,” Pollicy, August 2020, https://ogbv.pollicy.org/report.pdf
- 8Glenda Daniels, Tarisai Nyamweda, Collin Nxumalo, and Barbara Ludman, “Glass Ceilings,” 2018, https://www.researchgate.net/publication/333973158_Glass_Ceilings_Women….
- 9Kayla Hendricks et al, “Cyber-Harassment Victimization Among South African LGBTQIA+ Youth,” Responsible Design, Implementation and Use of Information and Communication Technology, April 1, 2020, https://link.springer.com/chapter/10.1007/978-3-030-45002-1_12.
- 10“Social media, discrimination and intolerance in South Africa,” Media Monitoring Africa, 2019, https://www.peacetechlab.org/s/SouthAfricaLexicon2019_v3.pdf; “Monitoring and Analysis of Hateful Language in South Africa Report 6,” Peace Tech Lab, undated, https://www.peacetechlab.org/south-africa-report-6.
|Are websites, governmental and private entities, service providers, or individual users subject to widespread hacking and other forms of cyberattack?||3.003 3.003|
Score Change: The score improved from 2 to 3 due to the decrease in cyberattacks experienced by individuals and media outlets in recent years.
Independent news outlets and opposition voices have not been subject to technical attacks in several years, though South Africa is vulnerable to cybersecurity threats on many fronts.
In February 2020, Nedbank announced that one of its third-party service providers had been hacked, leading to the theft of the personal data of 1.7 million customers including their names, ID numbers, telephone numbers, physical addresses, and email addresses. In October 2019, during the previous coverage period, several major South African banks were targeted by a distributed denial-of-service (DDoS) attack that was aimed at extracting ransom payments from them.1 The City of Johannesburg also reported a breach of its network in October 2019 after its systems were attacked by a group calling themselves the Shadow Kill Hackers who demanded payment in Bitcoin and threatened to publish the data online if they were not paid.2 The city was forced to shut down its website and billing services in an effort to contain the attack.
Government websites are occasionally hacked. Most of the hacks are perpetrated by amateur hackers with no apparent political motivations other than to advertise their skills. The government website of the National Cybersecurity Hub, whose objective is to protect South African citizens and businesses online, was hacked in August 2018.3 These attacks are usually short-lived, with the websites restored within a few days.4
The ECTA contains provisions that protect against cyberattack by criminalizing access or interception of an individual’s data without permission; interference with an individual’s data without permission; unlawful production, sale, procurement, design, distribution, or possession of a device used to overcome security measures or the protection of data; the use of such a device to unlawfully overcome security measures for the protection of data; and interference with an information system that protects data.5 The adoption of the Cybercrimes Bill (see C2 and C6) in May 2021 will strengthen the legal remedies available in relation to cyberattacks.
- 1“SA banks hit by ransom attacks,” Fin24, October 25, 2019, https://www.fin24.com/Companies/Financial-Services/sa-banks-hit-by-rans….
- 2“City of Joburg, banks under attack,” Business Day, October 25, 2019, https://www.businesslive.co.za/bd/national/2019-10-25-city-of-joburg-ba….
- 3Iavan Pijoos and Riaan Grobler, “Notorious hacker shuts down government website … again,” News24, August 28, 2018, https://www.news24.com/SouthAfrica/News/exclusive-notorious-hacker-shut….
- 4Kyle Venktess, “SA cybersecurity hub hit by downtime amid massive data leak” Fin24tech, October 18, 2017, https://www.fin24.com/Tech/Cyber-Security/sa-cybersecurity-hub-hit-by-d….
- 5Section 86, Electronic Communications and Transaction Act, http://www.internet.org.za/ect_act.html.
On South Africa
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Global Freedom Score79 100 free
Internet Freedom Score73 100 free
Freedom in the World StatusFree