RESENTATION TO THE PARLIAMENTARY PORTFOLIO COMMITTEE ON CONVERGENCE
Cover Slide- Slide 1
Honourable chairperson and members, Print Media SA would like to thank you for giving us this opportunity to highlight our concerns in respect of the Convergence Bill.
Print Media SA Team - slide 2
Before beginning our presentation, I would like to introduce the members of the Print Media SA team. I am Trevor Ncube, the President of Print Media SA and CEO of the Mail & Guardian. I am accompanied here today by Connie Molusi, the CEO of Johnnic Communications, Salie de Swardt, a director at Media 24 and Ivan Fynn, the editor of Cape Argus and Weekend Argus of Independent Newspapers. I am also joined today by Natasha Volans, the general manager of Print Media SA and Janet MacKenzie, legal advisor to Print Media SA.
Print Media SA – Slide 3
Print Media SA is an umbrella association representing a broad range of print publications, including daily, weekly and community newspapers and consumer, trade, technical, professional and other specialist magazines. It is an association not for gain which has been incorporated as a company in terms of section 21 of the Companies Act. Print Media SA is representative of almost all of the participants in the print media industry with 617 newspapers and magazine titles registered as members.
Print Media SA – Slide 4
Print Media SA represents the collective interests of its members and some of its activities include -
negotiations with representatives in the advertising, marketing, printing and paper industries;
the undertaking of campaigns that promote print media;
the provision of industry awards recognising excellence in publishing and journalism;
discussions and negotiations with Government on matters of common interest.
As part of its general mandate Print Media SA is here today to voice its member's views on the Convergence Bill. Whilst Print Media supports the laudable objectives of the Convergence Bill, the purpose of today's presentation will be to focus on those aspects of the Bill that Print Media believes may have a detrimental impact on the constitutional right to freedom of expression.
Convergence - Slide 5
In order to understand how the Bill in its current form may impact on the right to freedom of expression, it is necessary to take some time to analyze the manner in which the Bill proposes to give effect to convergence.
Prior to the advent of convergence, communications services such as broadcasting services, multimedia services and mobile cellular services were carried over separate infrastructure platforms and delivered to the end user on devices specifically designed for that service. For example, calls from a mobile phone to another mobile phone were carried over the public land mobile networks of the mobile operators and were received by the end user on a mobile cellular phone. The same is true for broadcasting services where broadcast content was transmitted from the studio via a signal distributor such as Sentech and received by the end user on a radio or television set.
With convergence these separate communications services are capable of being combined and conveyed over a single infrastructural platform and are further capable of being delivered to the end user on a number of devices. For example, voice calls previously limited to fixed line telephones or mobile phones can now be made over a personal computer via the Internet. Similarly, broadcasting services which were previously restricted to one way transmissions to radio or television sets can now be sent or received by a mobile phone or a personal computer.
Under convergence, such as that which is given effect to in the European Union, the traditional boundaries between communications services are blurred with the result that a myriad of applications or services are now capable of being combined and conveyed over various infrastructural platforms and are delivered to end users on the devices of their choice.
Convergence under the Bill - Slide 6
The Bill does not give effect to the general notion of convergence due to the fact that broadcasting services will continue to be licensed separately and will still be treated as a unidirectional service delivered to members of the public. In line with this approach, all existing licensing and programming requirements for broadcasting are retained in the Bill.
In contrast to this position, a communications service under the Bill will be treated as a converged service in that once the Bill is promulgated, all traditional telecommunications services will cease to exist and they will simply be categorised and licensed as one single communications service. To refer back to our earlier example, traditional mobile cellular telecommunications services will be replaced with a communications service capable of allowing the end user access to both voice and data via the Internet or the mobile 3G networks.
Print Media has no difficulty with this approach and acknowledges that there may well be cogent reasons for not implementing such a converged framework at this stage. However, if broadcasting is to be treated as a separate service to a communications service, then a clear distinction must be consistently drawn throughout the Bill between a broadcasting service and a communications service. In other words, licensing requirements tailored for broadcast services must be ring fenced and be made only of application to broadcast services. Under no circumstances, should these licensing requirements be made applicable to communication services.
Thus, the Bill must ensure that the traditional concept and definition of a broadcasting service is retained. In other words, a broadcasting service must be described in the Bill as being a unidirectional service consisting in the broadcasting of radio and television material to members of the public. Further, the Bill must make it absolutely clear that only broadcasting services will be subject to licensing.
Convergence Definitions/ Treatment of content - Slide 7
Unfortunately, the Bill fails to make it clear that only broadcasting services will be subject to licensing. This is due to the fact that the words "content" and "content services" are defined in the Bill in such a manner that they are not confined to broadcasting services but extend to other communications services.
"Content" and "content services" are also treated in an irregular fashion. By way of example, they are excluded from the definitions for "communications" and "communications services" but included in the definitions for "communications network", "communications network services" and "applications". A further peculiarity is that the definition of "content" specifically excludes "private communications between consumers".
"Content" is widely defined to include all forms of media components which are capable of being communicated, such as visual images, sound, text etc. In the Bill, these media components constitute the provision of a "content service" as does, the exercise of editorial control over content and activities such as online publishing.
As a consequence, there is uncertainty as to whether the provision of any form of content, whether it be multimedia, print media or online content, over a communications network will have to be licensed. This is due to the fact that "content services" are defined in the Bill as being part of the proposed licensed tiers of a "communications network service" and "applications service". The implication being that in order to provide a content service over a communications network or as part of an applications service, a licence is required. The consequence of this construct is that other forms of media other than broadcasting services that formerly did not require a licence will now require one.
Issues Pertaining To inclusion of Content - SLIDE 8
Two serious consequences occur as a result of the manner in which "content" and "content services" have been included in the Bill. Briefly these pertain to –
technical difficulties which will arise when attempting to implement convergence; and
the negative impact of the licensing of content which has policy and constitutional implications as well as the potential for deterring further investment in the ICT sector.
I will now deal with each of these issues in some detail.
TECHNICAL DIFFICULTIES - Slide 9
These difficulties primarily arise as a result of the inclusion and exclusion of "content" and" content services" from definitions in the Bill.
If, one has regard to the proposed horizontal tiers which will make up the licensing framework for convergence, at the lowest tier one finds the infrastructure layer which under the Bill will be licensed as a "communications network service". Directly on top of the infrastructure tier, one finds the transport or service tier. In the Bill, this tier is referred to as a "communications service" and is in effect the licensing tier where voice, sound, data, text, video, images, signals etc are conveyed from one destination to another.
"Applications services" fall on top of the "communications service" tier. This licensed tier will allow for technological interventions in respect of the voice, sound, data, text, video, images or signals transported over the "communications service" tier.
If one has regard to the proposed licensed tiers, then the exclusion of content services from the definition of a communications service will preclude the conveyance of any voice, sound, data, text, video, image or signal which constitutes content from one destination to another. This is due to the fact that such conveyance can only take place on the communications service tier which licenses the emission, transmission or reception of media components or content.
As the definition of "content" in the Bill specifically excludes content contained in private communications to consumers, it will not be permissible to provide e-mail services as part of an application service or as part of a communications network service under the Bill. As the provision and use of applications is key to the provision of e-mail services, it will further not be possible to provide e-mail services under a communications service and as such, the provision of such services will be rendered technically impossible under the Bill.
If these difficulties are not rectified in the Convergence Bill, it will simply be technically impossible to provide any form of content over a communications network.
POLICY AND REGULATORY CONCERNS - Slide 10
From a policy and regulatory perspective, a distinction must be drawn between broadcasting services and other content services. The services are so different in form and nature that they must be accorded different treatment from a regulatory perspective. This is apparent from the following differences -
Broadcasting services are:-
distributed to the public at large;
totally controlled by the broadcaster; and
distributed over the frequency spectrum which is a scarce resource.
Online content services, on the other hand, are: -
posted and removed on a daily basis by a myriad of end-users; and
private in nature in that the end-user selects the content required and the person to whom content is distributed.
It is these distinctions which have been traditionally accepted as the rationale for the licensing of broadcasting services whilst no such justification exists in respect of print and other forms of media, including online publications.
CONSTITUTIONAL DIFFICULTIES WITH THE LICENSING OF CONTENT - Slide 11
Unlike other forms of media, broadcasting services can only be distributed by the broadcaster to the public in terms of a licence issued by ICASA. Broadcasters are furthermore required to comply with certain programming requirements imposed on them in terms of their licences. These requirements are aimed at achieving the objectives set out in applicable broadcasting legislation and ordinarily pertain to obligations in respect of local programming, local music and programming in the official languages. In addition, broadcasters are required to ensure that all broadcasting services complies with a code of conduct currently administered and enforced by the Broadcasting Monitoring and Complaints Committee established in terms of the Independent Broadcasting Authority Act. Accordingly, although broadcasting services, have traditionally been subject to regulation through licensing and which has been justified on public interest grounds, no such justification exists in respect of other forms of content provision, such as online publishing and information services.
Any attempt to subject other content such as online services to licensing requirements will be contrary to the constitutional right to freedom of expression in section 16 of the Constitution. This is due to the fact that other content services, unlike broadcasting services do not make use of a scare resource. In addition other content services are not subject to the same public interest concerns as those which pertain to broadcasting services and have never been subject to licensing obligations in the past.
As the Internet is a unique medium which is not dependant on a scarce resource and which affords the individual an opportunity to freely engage in a range of expressive activities, any attempt to regulate content published on the Internet by requiring providers of such content to be licensed will constitute a violation of the right to freedom of expression which specifically guarantees the right to freedom of the press and other media as well as the right to receive and impart information and ideas.
Licensing of online content and other information services will also amount to a prior restraint which our courts have found to be unconstitutional due to their chilling effects on free speech.
ECONOMIC AND INVESTOR CONFIDENCE CONCERNS - Slide 12
The licensing of content will have the effect that online service providers will inevitably be forced to host their content services overseas where they will not be subject to licensing obligations when providing content. This will have a negative economic knock on in that –
the availability of local content will diminish as it becomes more and more onerous to provide online content services and as operations are increasingly relocated overseas;
the costs of accessing local content will increase as a result of having to traverse international networks to retrieve online content. This will in turn exacerbate the high costs of accessing Internet content and will be to the detriment of the South African consumer;
the growth of South Africa’s web development, online content and other associated industries will be retarded;
international investors will be deterred from hosting sites in South Africa under circumstances where the provision of online content is subject to licensing and other regulatory requirements. A further important consideration is that South Africa should ideally strive to ensure that its regulatory regime in respect of electronic content is in line with global initiatives aimed at securing the uniform regulation of electronic communications, failing which South Africa's ability to compete in the global market place will be severely hampered.
Current Regulation of undesirable Content - Slide 13
Print Media SA is mindful of the need to protect the consumer and in particular children from exposure to unlawful or undesirable content. Print Media is also fully cognisant of the fact that the right to freedom of expression is not an absolute one. With these very real concerns in mind, Print Media is firmly of the view that the question of unlawful or undesirable content is adequately addressed in a variety of legislative enactments which are detailed on the slide. Thus, there is no necessity for content services to be subject to further regulation under the Convergence Bill.
Print Media will now detail the manner in which content is regulated under the various statutes.
The Constitution - Slide 14
Certain forms of speech are not protected under the Constitution and these forms of speech are listed in the Constitution as -
propaganda for war;
incitement of imminent violence;
advocacy of hatred based on race, ethnicity, gender or religion and that constitutes incitement to cause harm.
To the extent that there are concerns that the provision of online content may violate the right to privacy, these concerns are also covered by the Constitution which guarantees the right to privacy of one’s person, home, property, possessions and communications.
In addition, the Law Commission is currently working on privacy and data protection legislation which when complete will further codify the compliance standards applicable to privacy issues in an electronic environment.
THE PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION ACT NO. 4 OF 2000 - Slide 15
The object of the Promotion of Equality and Prevention of Unfair Discrimination Act is to prevent and prohibit unfair discrimination and harassment and to promote equality.
Of specific application to this discussion is section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act which prohibits the publication of content which is hurtful, incites harm or which promotes hatred.
ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT 25 OF 2002 - Slide 16
The Electronic Communications and Transactions Act provides for important practical and enforcement mechanisms when faced with the difficulties associated with unlawful or undesirable content on the Internet.
Besides detailing the principles applicable to the collection and sale of personal data, this Act also provides for effective mechanisms for the removal of unlawful or undesirable content from websites. In this regard, telecommunication services licensees are required to remove content from the servers hosted by them after having received a take down notice in respect of such content in compliance with the Act.
REGULATION OF INTERCEPTION OF COMMUNICATIONS AND PROVISION OF COMMUNICATION-RELATED INFORMATION ACT 70 OF 2002 - slide 17
Criminal and other undesirable activity on the Internet will be countered by the operations of new interception legislation, once operational, will provide for the monitoring and interception of communications and the handover of such communications to law enforcement agencies.
In order to give effect to this legislation, telecommunication service licensees will be required to ensure that their systems are capable of intercepting and storing communications and to hand the same over to law enforcement agencies when directed.
FILMS AND PUBLICATIONS ACT 65 OF 1996 – slide 18
The Films and Publications Act is also of application to the Internet and makes it an offence to publish visual presentations of certain forms of pornography on the Internet as well as to distribute content which amounts to hate speech on the Internet.
NATIONAL GAMBLING ACT 7 OF 2004 AND SELF REGULATORY MECHANISMS – slide 19
The National Gambling Act prohibits Internet gambling and the advertising of Internet gambling until such time as a regulatory framework for Internet gambling is put in place.
Aside from all the statutory controls in respect of the publication of unlawful or undesirable content on the Internet, there are also a number of self regulatory options available to individuals. These include rating and labelling services in terms of which websites are required to display age restrictions for usage or any other warnings pertaining to content as well as the use of filtering software to filter out harmful or objectionable content as a means of protecting children on the Internet.
conclusion – slide 20
In conclusion we would like to sum our arguments as follows:
Due to the difficulties associated with the inclusion of "content" and "content services" in the Bill, Print Media requests that all references to "content" and "content services" are removed and that only broadcasting services are made subject to licensing regulation.
Further, to the extent that valid concerns exist with regard to unlawful or undesirable content, we believe, as already discussed, that these concerns are currently catered for in terms of existing legislation. Content should therefore not be regulated by the Convergence Bill.
More importantly any attempt to regulate online content or other information services would seriously undermine the fundamental right to freedom of expression. The right to freedom of expression was a hard won right and forms one of the cornerstones of our proud democracy. Every effort should be made to protect and safeguard this right from unnecessary intrusions.
Print Media once again thanks the honourable chairperson and members of the committee for the opportunity to present our concerns here today and we would be happy to take any questions.