By Matthew Buckland

It’s always been cheap and easy to publish on the web. Big professional, online publishers share the same medium as small-time, personal homepages. Online publishers typically publish at a lower cost than newspapers or magazines, making it an affordable option for shoestring publishers and budding entrepreneurs. It’s why they are in the web business in the first place.
So it’s no small wonder that legal experts and media industry groups have reacted so vociferously to the new Convergence Bill that — taken at face value — appears to require websites in South Africa to have a licence and probably pay some kind of fee.
They charge the Bill takes a stab at the very heart of the Internet.
Detractors of the Bill maintain this could stifle development of what is still a fledging industry and make online publishing unaffordable for small operators.
Many are branding it a limitation on the right to freedom of expression because burdensome licensing requirements could restrict the free flow of information and ideas so essential for successful democracy.
Various media, Internet and legal bodies have taken strong exception to the Bill in formal submissions to the Department of Communications. Industry bodies including the Online Publishers’ Association (OPA), the online arm of the SA National Editors’ Forum (Sanef), Internet Service Providers’ Association (Ispa) and the Internet Society of South Africa have all registered their protests.
What seems to be causing all the trouble is the Convergence Bill’s very specific reference to “online publishing” and “information services”. It has been interpreted by many to mean that websites — from the big online publishing media houses to the small, backyard shoestring websites — will be subject to regulation and require a licence.
Legal and media experts agree that it’s a strange, confusing provision that appears almost out of place and glaringly at odds with what is actually a very progressive piece of legislation designed to update the country’s laws. The Convergence Bill is an attempt by government to acknowledge blurring, converging technologies in television, radio, Internet and telephony.

Allaying the doomsayers, sort of
Guy Berger, who is head of Rhodes University’s journalism school, has followed the progress of the Bill since it was first mooted at a colloquium last year.
While Berger agrees there is valid reason for concern and for industry to object to the Bill’s reference to “online publishing”, he maintains many of the submissions were sent through “on the basis of the worst case scenario that it is an infringement on freedom of speech”.
In contrast to the level-headed submissions by the various industry bodies, there have been aggressive statements from what Berger terms “alarmists”. The ensuing hysteria has drummed up quite a bit of media publicity, but hasn’t left much room for sober reflection and analysis of the real issues and problems with the Bill.
“There has been a lot of overreaction and I do not think it’s the correct conclusion to say the Bill will lead to the licensing of websites. But the Bill doesn’t go out of its way to allay fears either. They [government] must say upfront that the Bill is not there to regulate online content. I can’t see from the Bill that they would want to control content in this legislation. But some people are reading it like this…”

‘Too little hysteria’
Probably one of the most vocal critics of the Bill is outspoken Cape Town attorney Reinhardt Buys of Buys Incorporated attorneys. The crusading firm has itself been criticised for an “alarmist”, “scaremonger” approach to the issue.
But Buys maintains that there is “too little hysteria” surrounding the Convergence Bill and that it will “kill the internet” in South Africa.
“It’s a horrid act. There are spelling mistakes in it. There are definition mistakes in it. It is just bad law, like a lot of others. It will kill e-commerce. It will kill investment and rob people to of access to cheap, affordable access. We will be only country in the world to have this law. So people will move their websites offshore or close them down. It will kill the internet in South Africa. It will put us back in the ice age… we will be travelling in an ox wagon down the information highway,” says Buys, rather melodramatically.
Media law specialist and Senior Associate at law firm Webber Wentzel Bowens (WWB), Lucien Pierce, is, like Berger, somewhat perplexed by the Bill which he calls a “rush job”. Like many legal experts, Pierce is certain the Bill’s potential licensing requirements for websites won’t see the light of day.
“If, in the unlikely event it is passed in its current form, then a lot of lawyers are going to get rich,” he notes wryly. “I think the approach and the big problem that everyone is raising is that it discriminates against online publishers. I can’t understand why an online publisher should be obliged to apply for a licence when traditional publishers (eg: newspapers) aren’t subject to such regulation. The intention to get online publishers to apply for licences smacks of the regulation of newspapers of the 70s,” he says.
Adds Pierce: “I think the fuss is very valid. I don’t think it is a storm in a teacup. I think it is very important for freedom of expression issues that people stand up to this Bill. In all honesty this should be a self-regulated area, an industry regulated area. The argument is that every site is brought within the regulatory power of the regulator and there is always a possibility that some sort of influence or unfairness may arise.
“For example, if regulation had to fall under the realm of a non-independent regulator, it would be quite easy for the regulator to influence such content and services, even adversely.”
It can be argued that if government really wanted to control content via this Bill it would go after much bigger fish than online publishers, such as the independent TV stations or the more established, influential print sector.
So why then does the Bill refer to “online publishing” and licensing requirements in the first place? What could possibly be government’s thinking here?
“I am not sure what the reason for it was. It could be an attempt to control illegal sites, such as paedophilia sites and keep track of them … although whether that will succeed I don’t know, because people will simply move their websites outside South Africa to avoid licensing. People can have a website anywhere,” says Pierce.

Cross reference
Berger’s take on the Bill’s reference to “online publishing” and “information services” is that it needs to be cross-referenced with other sections of the Bill, with the result being that what is probably being designated here are Internet Service Providers (ISPs).
In other words, the Bill plans to regulate the delivery of content services and not the actual content per se. If this is the case, then the drafters of the Bill have a lot of explaining to do. If this isn’t the case, then things are perhaps looking as bad as Buys makes it out to be.
“It’s not necessarily a bad thing for ISPs to be regulated. Having a list of registered ISPs could be useful to ensure quality, good service and diversity. Government may also want to stipulate a policy that licences for ISPs should include promotion of black empowerment or providing connectivity to poor areas or to schools at a cheaper rate, just like Icasa’s stipulations that Telkom has to provide phones in disadvantaged areas. But it is impossible to say at this stage,” says Berger.
“The main thing that people are missing is that the Bill’s intention is primarily to create more competition in the telecoms sector. It will mean that people will be able to compete with Telkom at an infrastructural level, for example through Wi-Fi services,” says Berger.

Deflecting attention
But Berger is worried that the furore over freedom of speech and the supposed intention of the Bill to licence web content is a “red herring”, deflecting attention from a much more worrying area of the Bill which increases the Minister of Communications’ powers in the sector.
“In existing legislation related to the Broadcasting Act, the Minister can give policy directives to Icasa, but there are certain restrictions such as that these directives must be broad in nature; they have to be made public (be tabled in the Government Gazette); and also discussed by a Parliamentary Committee.
“The current Broadcasting Act says the Minister MUST do all these things. However, in the new Convergence Bill it says the minister MAY do all these things,” says Berger.
This means that what used to be a complete legal requirement for the Communications Minister is now only an optional requirement, which means that policies may not get the public scrutiny the deserve. It’s worrying indeed.
“That is a substantial step backwards in terms of transparency and legislative power versus executive power. They’ve [Department of Communications] got a record of putting forward legislation which seeks to strengthen the power of the executive… but on many occasions those ambitions have been moderated by Parliament,” says Berger.
He distances himself from the Buys position which hits out at the prospect of compulsory empowerment obligations resulting from the Bill.
Of course, regulation isn’t a bad thing. In fact, regulation is necessary where it is in the public interest to control resources otherwise we’d have unfair competition or at worst, anarchy. For example, it is necessary to regulate television and radio because they operate on a scarce spectrum. Without regulation there would be chaos. But the regulation of websites isn’t justified because there isn’t a shortage of resources.
So it seems that the Convergence Bill is a case of raw law with many flaws that still needs to be banged into shape. Berger says the joint industry-government group, the convergence policy committee, which drafted aspects of the Bill admits it is still an “incomplete end-product” and laments the time pressure they were under to push the thing through.
But legal experts are betting their homes that the Bill won’t make it into law in its current state. In its submission, the OPA wants that specific reference to “online publishing” and “information services” deleted, including a general reference to “communications content
application service” struck from the Bill. What we also now need is a clear, unequivocal statement from government that indeed it is not (and never was) the Minister’s intention to regulate and license websites.
Then, maybe, we can get down to the real business of scrutinising and analysing the Convergence Bill.

Matthew Buckland is the editor of the Mail & Guardian Online @ www.mg.co.za

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