Freedom on the Net
Internet Freedom Scores
- Access to quality and relatively affordable internet in South Africa is growing, primarily among low income communities through government subsidized Wi-Fi projects across the country (see Availability and Ease of Access).
- Significant digital activism during the #FeesMustFall movement influenced the government’s decision in October 2015 to withdraw a proposal to increase tertiary education tuition fees (see Digital Activism).
- The Film and Publications Amendment Bill introduced in 2015 threatens to impose intermediary liability and a censorship regime on South Africa’s online content, while new registration fees on video-streaming services may impede local content creation (see Content Removal and Media, Diversity, and Content Manipulation).
- The draft Cybercrimes and Cyber Security Bill has been criticized for its ambiguous language that threatens to infringe on freedom of expression, privacy rights, and access to information (see Legal Environment).
South Africa’s digital media environment is generally free and open. A culture of free expression exists online, and the online sphere remains diverse and vibrant. Access to the internet and related technologies is a core concern for government, civil society, and the private sector, which has led to collaborative efforts between public and private players to expand the information and communication technology (ICT) sector.
Digital activism was particularly notable during the coverage period, helping fuel the rise of the “Fees Must Fall” movement, the largest student movement since the Sharpeville massacre of 1960, in October 2015. Students took to social media to share information and organize massive protests against a proposed 10 to 12 percent increase in tuition fees for the 2016 academic year, using the hashtag #FeesMustFall. The movement ultimately influenced President Zuma to withdraw the proposal on October 23, 2015, leaving tertiary school fees the same for the 2016 academic year. The protests and social media activism erupted anew in October 2016 when the government announced another proposal to raise tuition fees for the 2017 academic year.
While the South African government has not proactively restricted access to ICTs or internet content, increasing apprehension of the challenges and threats posed by ICT advancement has led several state actors, from the regulatory body to security agencies, to respond with policy and legislative proposals, some of which may impose restrictions on South Africa’s internet freedom. For one, the Film and Publications Amendment Bill—drafted for the purpose of protecting children from racist, harmful, and violent content online—has been widely criticized for giving the government sweeping powers to censor content through an onerous classification system. The draft Cybercrimes and Cyber Security Bill has been criticized for its ambiguous language that threatens to infringe on freedom of expression, privacy rights, and access to information. Both bills were still under review as of October 2016.
In a worrisome development, South Africa voted against the UN Resolution for “the Promotion, Protection and Enjoyment of Human Rights on the Internet” in July 2016, siding with repressive countries including China, Russia, and Saudi Arabia, and based on concerns about the resolution’s failure to consider hate speech.
Access to quality and relatively affordable internet in South Africa is growing, primarily among low income communities through government subsidized Wi-Fi projects across the country. The majority of ICT infrastructure and services are privately-owned and enjoy a fair degree of self-regulatory independence, though a memorandum of understanding between the Independent Communications Authority of South Africa (ICASA) and the Film and Publications Board (FPB) may be the beginning of a new internet co-regulation regime.
Availability and Ease of Access
Internet penetration has expanded rapidly in South Africa, though many believe that the expansion has not kept up with the country’s socioeconomic development. According to the latest data from the International Telecommunication Union (ITU), internet penetration reached 52 percent of the South African population in 2015, up from 49 percent in 2014.1 By contrast, mobile penetration reached 159 percent in 2015,2 with 57 percent of internet users accessing the internet on their mobile devices.3 Meanwhile, the country’s average internet connection speed has improved from 3.2 Mbps in 2015 to 6.5 Mbps in 2016, above the global average of 6.3 Mbps, according to Akamai’s first quarter “State of the Internet” report for 2016.4
In the General Household Survey 2015, the state’s statistics agency reported that over 53 percent of South African households have at least one member who can access the internet at home, work, school, or internet cafes. The same survey found that nearly 10 percent of South African households are equipped with internet access at home, though home access is characterized by a significant urban-rural divide: 16 percent of households in metropolitan areas had home access, compared to approximately 1 percent in rural areas.5 Another survey found that internet users were disproportionately white (50 percent), and speak either English (65.5 percent) or Afrikaans (39 percent).6
A monopoly in the fixed-line market remains a challenge to reducing overall fixed-line broadband costs, and there is a general perception that mobile operators overcharge to maximize profits. The passage of South Africa Connect—a new broadband policy that aims to connect the entire country by 2030—as well as a program providing tablets to schools suggest a positive trend in increasing internet access, especially for the poor. Several metropolitan areas including the cities of Tshwane, Johannesburg, and Cape Town, as well as the Ekurhuleni municipality7 are piloting and expanding access to free public Wi-Fi infrastructure, providing users with access up to 500MB of data per day.8 In October 2015, the city of Tshwane’s Project Isizwe recorded 1 million unique users, a figure that is particularly significant given that the project services primarily low income areas within the city.9
Restrictions on Connectivity
The South African government does not have direct control over the country’s internet backbone or its connection to the international internet. 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.10 Several operators oversee South Africa’s national fiber networks, including partly state-owned Telkom and privately owned MTN, Vodacom, Neotel, and FibreCo, among others. 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 ISP Association (ISPA) and NapAfrica.11
In January 2016, the SEACOM cable experienced two interruptions caused by breakage of its undersea network, with users reporting slow international speeds due to congestion of traffic over redundant routes.12
There are hundreds of ISPs in South Africa, with ISPs belonging to the ISP Association (ISPA).13 However, the fixed-line connectivity market is dominated by Telkom,14 a partly state-owned company of which the government has a 40 percent share and an additional 12 percent share through the state-owned Public Investment Corporation.15 Telkom effectively possesses a monopoly, despite the introduction of a second national operator, Neotel, in 2006.16 In the mobile market, there are five mobile phone companies—Vodacom, MTN, Cell-C, Virgin Mobile, and Telkom Mobile—all of which are privately owned except for Telkom Mobile, which falls under the partly state-owned Telkom.
Access providers and other internet-related groups are quite active in lobbying for better legislation and regulations. The ISPA was recognized as a self-regulatory body by the Department of Communications in 2009.17
In response to the rapid uptake of internet-based voice, messaging, and streaming (or over-the-top, OTT) services such as WhatsApp and Skype that have disrupted the traditional revenue streams of telecom companies, the Parliamentary Portfolio Committee on Telecommunications and Postal Services convened a meeting in February 2016 to discuss issues of governance and regulation of OTT services. Supporters of OTT regulation argue that such services profit at the expense of carriers that have invested in ICT infrastructure and must pay local taxes. Critics countered that any arbitrary limitations on services would stifle access to information and innovation that could potentially benefit the country. As of October 2016, the Portfolio Committee had not taken any formal position on OTT regulation.18
The autonomy of the regulatory body, the Independent Communications Authority of South Africa (ICASA), is protected by the South African constitution, although telecom observers contend that ICASA’s independence has weakened as a result of various incidents over the past few years.19 In May 2014, South Africa’s ICT ministry was split into two departments—the Department of Communications (DoC) and the Department of Telecommunications and Postal Services (DTPS)— resulting in ICASA being engulfed by the DoC rather than the DTPS, which created confusion and concern that the government was seeking more control over the regulator.20 Furthermore, ICASA lacks financial control given its dependence on the Financial Treasury for funding and perennially cites poor resources as one of its primary challenges.21
The Film and Publications Board (FPB) traditionally regulates the distribution of films, games, and other publications in South Africa but may soon regulate internet content under proposed amendments to the Film and Publications Act, 1996 (see “Content Removal”). In March 2016, the FPB signed a memorandum of understanding with ICASA to address regulatory overlaps created by the proposed amendments, which will effectively create co-jurisdiction over online content.22
Commercial and user-generated content is not subject to arbitrary restrictions in South Africa, and the legal framework for takedown requests and intermediary liability are clearly articulated in law and established in practice. Nonetheless, the Film and Publications Amendment Bill introduced in 2015 threatens to impose intermediary liability and a censorship regime on South Africa’s online content, while new registration fees on video streaming services may impede local content creation. In a positive step, significant digital activism during the #FeesMustFall movement influenced the government’s decision to withdraw a proposal to increase tertiary education tuition fees.
Blocking and Filtering
Under the current legal and regulatory framework, neither the state nor other actors block or filter internet and other ICT content, and there is no blocking or filtering of content transmitted by mobile phones.
Between June 2015 and May 2016, there were no reported incidences of legal, administrative, or other means used to force the deletion of content from the internet in a way that contravenes international norms for free speech or access to information.
Section 77 of the Electronic Communications Act of 2002 (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 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.23 As a result, ISPs often err on the side of caution by taking down content upon receipt of a notice to avoid litigation, 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. Meanwhile, any member of the public can submit a takedown notice, and there are no existing or proposed appeal mechanisms for content creators or providers.
User-generated content on news sites, social media platforms, and forums are regulated internally by content providers. There is no established best practice that has been adopted by South African content providers, and many are guided by internal policies that take into account the constitutional right to free expression and existing legislation, primarily the Promotion of Equality and Protection from Unfair Discrimination Act (PEPUDA). International platforms such as YouTube, Twitter and Facebook are guided by their respective policies. However, local private media platforms such as Daily Maverick, Media24, and the Independent Online are increasingly turning away from moderating comment sections and instead opting to close down public comments on selected sites and articles as a way to avoid dealing with hateful and harmful speech.24
In a worrisome development, the Film and Publications Amendment Bill introduced in 2015 threatens to impose intermediary liability and a censorship regime on South Africa’s online content. The amendments are intended to give effect to the Online Regulation Policy proposed by the FPB in May 2016, which will in turn allow the FPB to pre-censor online content or take down existing content—including user-generated content—that fails to meet certain classification requirements.25 Drafted for the purpose of protecting children from racist, harmful, and violent content online, the proposed policy has been widely criticized for giving the government “wide-sweeping powers to censor content on the internet.”26Based on critical stakeholder feedback, the FPB released a revised Film and Publications Amendment Bill in October 2016, which is still up for discussion.27
Media, Diversity, and Content Manipulation
Online media in South Africa is vibrant, and online content represents a wide range of viewpoints and perspectives. Web-only news platforms, such as the Daily Maverick, have become particularly popular in recent years, with key news stories often broken online before print or broadcast, illustrating how online media is growing as a primary source of news in the country. In line with this development, recent anecdotal evidence suggests that the South African youth are increasingly reliant on the internet and radio for information and are less dependent on television and print news for current affairs.28 Similarly, there are indications that in rural areas with internet access, the online versions of community newspapers are being accessed ahead of their print versions.29 Nevertheless, while both English- and Afrikaans-language content is well represented online, 9 of South Africa’s 11 official languages are underrepresented, including on government websites.
New registration fees on video streaming services threaten to impede local content creation. In March 2016, the Film and Publications Board directed the video streaming service Netflix to pay a ZAR 795,000 (approximately USD 50,000) registration fee to distribute content under the self-classification criterion imposed on online distributors by the FPB.30 The fee was criticized by industry stakeholders as unjustifiable and prohibitive for smaller competitors providing content streaming services.31
Online self-censorship is low in South Africa, and the government does not actively try to limit or manipulate online discussions. Nevertheless, ANC-aligned businessmen have made significant inroads into the media landscape by acquiring or launching new media products over the past few years, leading to concerns over increasing progovernment bias among prominent media outlets.
The internet has become a successful tool for online mobilization and democratic debate in South Africa, and the use of the internet and other ICTs for social mobilization has been mostly uninhibited by government restrictions.
In October 2015, the country witnessed the rise of the “Fees Must Fall” movement, the largest student movement since the Sharpeville massacre of 1960. The student movement began at the University of Witwatersrand in Johannesburg as a response to a proposed 10 to 12 percent increase in tuition fees for the 2016 academic year. Students took to social media—particularly Twitter—to share information and organize massive protests under the hashtag #FeesMustFall. As the hashtag trended on social media, the protests spread rapidly from the University of Witwatersrand to other universities and tertiary institutions across the country. The protests resulted in huge disruptions to the academic system, millions of Rand in damage to property, and at least one death,32 but ultimately influenced President Zuma to withdraw the proposal on October 23, leaving tertiary school fees the same for the 2016 academic year.33
The success of the #FeesMustFall protest movement proved short-lived upon the start of the 2017 academic year, when the government announced another proposal to raise tuition fees, this time by 8 percent.34 Largescale protests erupted anew, once again facilitated by social media and the hashtag #FeesMustFall, and have been ongoing as of the time of writing in October 2016.35
The draft Cybercrimes and Cyber Security Bill has been criticized by civil society for its ambiguous language that threatens to infringe on freedom of expression, privacy rights, and access to information. An unenforced ban on the hashtag #FeesMustFall may set a dangerous precedent that could restrict freedom of expression and digital activism in the future. Revelations of stingray “grabber” technology possessed by state security agencies led to increasing concerns over unchecked government surveillance.
The South African constitution provides for freedom of the press and other media, freedom of information, 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.”36Libel is not a criminal offense, though civil laws can be applied to online content, and criminal law has been invoked on at least one occasion to prosecute against injurious material.37 The judiciary in South Africa is generally regarded as independent.
In a worrisome development for internet freedom, South Africa voted against the UN Resolution for “the Promotion, Protection and Enjoyment of Human Rights on the Internet” in July 2016, siding with repressive countries such as China, Russia, and Saudi Arabia among the few objectors. In its opposition, South Africa’s deputy permanent representative to the UN noted concerns that the resolution failed to take into account hate speech and incitement that pose unique challenges to freedom of expression in South Africa’s post-apartheid society.38
Meanwhile, the draft Cybercrimes and Cyber Security Bill—published in August 2015 for public comment—has been criticized by civil society for its ambiguous language that threatens to infringe on freedom of expression. Section 17 of the draft bill criminalizes the “dissemination of [a] data message which advocates, promotes or incites hate, discrimination or violence,” which could be broadly interpreted to include sharing such content on social media for the purposes of public discourse.39
The bill may also have far reaching implications on the right to access information and privacy. Critics have noted the bill’s similarities to the controversial Protection of State Information Bill (POSIB), which was fiercely resisted by civil society and eventually vetoed in 2013 for placing harsh restrictions on the possession, distribution, or access of classified state information, including online. Section 16 of the proposed cybercrime bill states, “Any person who unlawfully and intentionally–(i) possesses; (ii) communicates, delivers or makes available; or (iii) receives, data which is in the possession of the State and which is classified as confidential [by the State], is guilty of an offence,” which observers worry will limit the ability of individuals, journalists, and society to hold those in authority to account.40 As of October 2016, the bill is being redrafted by the Department of Justice with input from various stakeholders.41
Prosecutions and Detentions for Online Activities
Individuals were not prosecuted, detained, or sanctioned by law enforcement agencies for political, social, or religious speech online during the coverage period.
On October 19, 2015, the Western Cape High Court issued an interdict (a legal prohibition on an individual’s actions) on several individuals and organizations, banning them from participating in the #FeesMustFall protest movement that was rocking the country, though none of the listed individuals were arrested (see “Digital Activism”). In an unprecedented and bizarre move, the court interdict also included the hashtag #FeesMustFall, which meant that any use of the hashtag could lead to arrest.42 While the interdict ultimately lacked enforcement and no social media users faced penalties for sharing the hashtag, the interdict set a dangerous precedent that could restrict freedom of expression and digital activism in the future.
Surveillance, Privacy, and Anonymity
Persistent concerns over government surveillance grew following reports that state security organizations possess stingray (or “grabber”) technology that can mimic cell phone towers and capture cell phone metadata within a certain vicinity. In September 2015, Hlanwgani Mulaudzi, a spokesperson for the government investigation bureau known as the Hawks,43 confirmed that South African security officials have access to grabber technology but noted that the technology was used specifically for national security matters only.44 Nonetheless, consistent weaknesses in oversight mechanisms within the state security departments leave surveillance open to abuse. For example, the Office of the Inspector-General of Intelligence has been vacant for over a year.45
According to Section 78 of the Electronic Communications and Transactions Act of 2002 (ECTA), service providers are not under any obligation to monitor data or actively seek circumstances indicating unlawful activity from data transmitted or stored on their information systems. The provision also recognizes the impracticality of generalized monitoring of user-generated content.
The Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002 (RICA) regulates the surveillance of domestic communications. Among its provisions, RICA requires ISPs to retain customer data for an undetermined period of time and bans any communications system that cannot be monitored, placing the onus and financial responsibility on service providers to ensure their systems have the capacity and technical requirements for interception.46 While RICA requires a court order for the interception of domestic communications, the General Intelligence Laws Amendment Act (known locally as the “Spy Bill”) passed in July 2013 enables security agencies to monitor and intercept foreign signals (electronic communications stemming from abroad) without any judicial oversight.47
RICA also compromises users’ right to anonymous communication by requiring mobile subscribers to provide national identification numbers, copies of national identification documents, and proof of a physical address to service providers.48 An identification number is legally required for any SIM card purchase, and registration requires proof of residence and an identity document.49 For the many South Africans who live in informal settlements, this can be an obstacle to mobile phone usage. Meanwhile, users are not explicitly prohibited from using encryption, and internet cafes are not required to register users or monitor customer communications.
Despite the legal framework for the interception of communications established under RICA, there have been worrying reports that the National Communications Centre (NCC)—the government body tasked with collecting intercepted signals—conducts surveillance without regard to RICA, thus extralegally. In June 2013, an investigative report by the Mail & Guardian revealed that the NCC monitors mobile phone conversations, SMS, and emails, “largely unregulated and free of oversight.”50 According to the Mail & Guardian, the NCC also has the technical capacity and staffing to monitor both SMS and voice traffic originating from outside South Africa.Calls from foreign countries to recipients in South Africa can ostensibly be monitored for certain keywords; the NCC then intercepts and records flagged conversations. While some interceptions involve reasonable national security concerns, such as terrorism or assassination plots, the system also allows the NCC to record South African citizens’ conversations without a warrant and is subject to abuse without sufficient oversight mechanisms.51
The Protection of Personal Information (POPI) Act, signed into law in November 2013, provides measures to protect users’ online security, privacy, and data. No law ensuring the constitutional right to privacy existed previous to POPI, which allows an individual to bring civil claims against those who contravene the act.52 Penalties for contravening the law are stiff, including prison terms and fines of up to ZAR 10 million (approximately US$650,000). However, as of October 2016 the president has yet to appoint an Information Regulator and set a commencement date for the new legislation, after which point companies will have one year to begin compliance with the law.53
Intimidation and Violence
There were no cases of extralegal intimidation or violence reported against bloggers, journalists, or online users during the coverage period. However, at the beginning of 2016, Penny Sparrow, a realtor from Durban, was the subject of a social media storm after sharing a Facebook post wherein she described black beachgoers as monkeys.54 After complaints were lodged at the Equality Court, Sparrow was ordered to pay a fine of ZAR 150,000 (approximately USD $10,000) to a local charity in June 2016 and as of October 2016 still faces charges of Crimen Injuria (offending the dignity of another).55 The matter also drew attention to broader concerns on online harassment and personal privacy. Information on Penny Sparrow’s personal contact details was posted on social media resulting in her receiving numerous undesirable messages and some even threatening her with imminent violence.56
South Africa is highly vulnerable to cybersecurity threats on many fronts, though independent news outlets and opposition voices were not subject to targeted technical attacks during the coverage period. Government websites are often hacked.57 Most of the hacks are perpetrated by amateur hackers with no apparent political motivations other than to advertise their skills, and consist of minor website defacements rather than incidents of data theft.
2 As a result of separate subscriptions for voice and data services and the use multiple SIM cards in order to make use of multiple product offerings, common among prepaid users. International Telecommunication Union, “Mobile-Cellular Telephone Subscriptions,” 2000-2014, http://bit.ly/1cblxxY.
5 Statistics South Africa, “General Household Survey, 2015,” June 2016, http://www.statssa.gov.za/publications/P0318/P03182015.pdf
16 As reported in Freedom House 2013, Neotel has chosen to focus on providing wireless internet and telecom services, which has had minimal impact on last mile connectivity and the associated price of broadband.
21 Bonnie Tubbs, “ICASA still fuzzy, one year on,” ITWeb, May 27, 2015, http://bit.ly/1hQlegv; Siphiwe Hlongwane and Dumisani Moyo, “Regulatory Independence and the public interest,” Journal of African Media Studies 1, no. 2 (2009) http://bit.ly/1GQSGtM; Bonnie Tubs, “ICASA’s independence remains moot,” ITWeb, July 8, 2015, http://bit.ly/1ZU4uXN.
23 Section 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. Electronic Communications and Transactions Act of 2002, Government Gazette, Republic of South Africa , http://bit.ly/1pWWWGF
25 Rebecca Kahn, “Scary new Internet censorship law for South Africa,” Huffington Post, August 9, 2015, www.huffingtonpost.com/rebecca-kahn/south-africa-might-get-th_b_8102720.html; “Scary new Internet censorship law for South Africa,” Mybroadband, October 20, 2015, http://mybroadband.co.za/news/internet/142980-scary-new-internet-censorship-law-for-south-africa.html.
26 Paula Gilber, “Internet ‘censorship’ Bill may see changes,” ITWeb, October 18, 2016, http://www.itweb.co.za/index.php?option=com_content&view=article&id=156791
27 The Film & Publications Board and online content regulation, Ellipsis Regulatory Solutions, http://www.ellipsis.co.za/the-film-publications-board-and-online-content-regulation/
28 Suggested by Anton Harber, Professor of Journalism and Media Studies at the University of Witwatersrand.
29 Suggested in an access workshop held in East London in November 2013, run by Afesis-Corplan.
35 “Why are South African students protesting?” BBC, October 4, 2016
43 The Hawks are South Africa's Directorate for Priority Crime Investigation (DPCI) which targets organized crime, economic crime, corruption, and other serious crime referred to it by the President or the South African Police Service
53 Update On the Protection of Personal Information Act (April 2016), accessed 30 October 2016, http://www.ellipsis.co.za/update-on-the-protection-of-personal-information-act/
55 Penny Sparrow back in court. City Press, 12 September 2016, accessed 30 October 2016, http://www.news24.com/SouthAfrica/News/penny-sparrow-back-in-court-20160912-2
57 Through the use of a simple Google search trick, it is evident that a large number of websites have previously been “hacked” in some way or another. This can be emulated by googling the following: “hacked by” site:gov.za, or “hacked by” site:org.za. This will reveal the presence of the term “hacked by” in either governmental or NGO domains. The term is often used in the defacements. The search trick does not reveal up-to-date data, and many sites revealed have been fixed since their indexing.
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