‘It is just a bad law’

“It’s a horrid Bill.”

That’s the opinion of Reinhardt Buys, internet and media law attorney of Cape Town legal firm Buys Incorporated Attorneys (BIA), regarding the Convergence Bill, which has caused a stir especially in online media circles in recent weeks.

As the opportunity to comment on the Convergence Bill — aimed at updating old legislation and promoting competition and growth in the South African communications sector — drew to a close this week, claims have been made that the draft law, if promulgated, will enable the government to regulate the content of websites.

This would be due to the law forcing website owners and publishers to apply for a content licence.

“There are even spelling mistakes and definition mistakes in it. It is just a bad law, like a lot of others,” Buys said.

According to Guy Berger — media expert and deputy chairperson of the South African National Editors Forum — in terms of the Bill the issue depends on the Independent Communications Authority of South Africa (Icasa), but a parliamentary amendment to the Bill could result from public comment.

The Convergence Bill arose from a colloquium convened mid-2003 by the Department of Communications. The department defined convergence as “the integration of IT, computing, broadcasting and telecommunications”, saying it challenged existing laws and regulations. It also said a “convergence policy” was needed in the context of globalisation and the advent of the internet, to promote development, black economic empowerment and investment.

However, the department did not specify whether convergence referred to technologies or industries, and at what levels.

“What confounds the current Convergence Bill is the way this lack of clarity impacts on how content providers relate to channels and, correspondingly, what makes licensing sense,” Berger wrote in his Converse column for the Mail & Guardian Online.

“Consider the following scenario. The SABC is licensed as a content provider via broadcast signals. It does not need a licence for SABCnews.com, even if it puts the same audio or audiovisual content on the website. Now, what if others set up a webtv or webradio content operation and streams similar stuff through the internet — do they need to be licensed?

“You probably would answer no. But what if their feed is accessed by wireless internet, and their content then travels through radio spectrum — the same spectrum, ultimately, that the SABC uses?” Berger asked.

He pointed out that, in terms of the Bill, a company may be licensed to provide connectivity and to host websites; the question of the content on these sites remains a different matter.

“You would need two licences to cover both activities if your business combines the application and the content, or just one if you specialise in only one aspect,” he said.

He concluded that “alarmists are probably conflating the Bill’s reference to licensing of online publishing with the licensing of content provision”, adding his doubts that website licences will become a reality.

Buys, however, was quite adamant that the Bill will “kill e-commerce”.

“It will kill investment and rob people of access to cheap, affordable access. We will be the only country in the world to have a Bill like this. People will move their websites offshore or close them down as a result. It will kill the internet in South Africa.”

Buys’s BIA on January 26 issued a press statement saying “the current provisions of the Bill will have far-reaching implications for the publishing industry”, adding that it wants to protect the interests of the industry.

Explaining how the Broadcasting Act regulates television and radio, and the Telecommunications Act regulates telephone and cellphone services, BIA mentioned how convergence “frustrates” the operation of these laws — which is, of course, how the Convergence Bill came into being.

BIA pointed out that the Bill moves away from a licensing system based on the nature of the technology used to a system based on the nature of the service offered — be it infrastructure services, communication network services, communication application services or communication content services (the former includes “online publishing and information services”).

This led BIA to believe “businesses involved in ‘online publishing and information services’ would only be allowed to operate once such businesses applied for a licence in terms of the Bill and when such a licence was in fact issued” — and those without a licence may face steep fines of up to R500 000 (or R10 000 a day).

BIA said that burdening online publishers with licence requirements not applicable to offline publishers would breach the Constitution’s equality provisions, and would restrict free expression and the right to exchange information.

“Subjecting online publishers to affirmative action obligations and costly licence obligations will prevent many South Africans from accessing affordable content on the internet and through other electronic means,” BIA said in its statement.

Subsequently, on February 3 the Online Publishers Association (OPA) — comprising 16 of South Africa’s top online publishers, including Ananzi, iAfrica, IOL, the M&G Online, Media24, M-Web and Tiscali — submitted a four-page comment document on the Bill to the Department of Communications in which it opposes attempts by the Bill to regulate online content.

The OPA also expressed concern about the licensing and regulation of online publishing and information services. It believes — as also mentioned by BIA — that the Bill contravenes the constitutional right to freedom of expression, saying the state would be unable to prove the Bill’s implications are “reasonable and justifiable” — which would make it a permissible limitation of the right to freedom of expression.

It said the only medium where licensing and regulation may be justifiable is that of broadcasting, because it uses “scarce spectrum”.

“As a consequence of the Bill, the anomalous situation arises that a publisher who publishes content offline (for example a newspaper) and who does not require to be licensed, not is regulated as regards this activity, would in relation to online content (which may be identical to the offline content) require a licence and be subject to regulation.”

The Bill therefore unfairly discriminates against online publishers, the OPA said.

The OPA went on to highlight several implications of the licensing and regulation of online content, including:

• Thousands of enterprises would be affected, from guest houses to state libraries and online newspapers — and many of these are “fledgling businesses”. The costs of licensing and compliance with the Bill may force many of these to close down.
• The development of the provision of online content and related businesses or organisations would be stifled.
• Overseas publishers would be exempt from regulation, giving them an unfair advantage.
• The Bill would discourage investment in the online industry, leading to adverse economic consequences.
• The Bill would negatively affect how South Africa is viewed constitutionally and politically, discouraging investment in the country.

The OPA pointed out that it supports “measures to facilitate convergence and the liberalisation of the communications industry”, but pointed out that it is “technology and applications which are converging, as opposed to content” — which is where the Bill is flawed, as already pointed out by Berger and others.

Berger’s lengthy final submission on the Bill to the Department of Communications, dated February 3, said — as he explained in his M&G Online column — that “the Bill will benefit from more explicit and comprehensive policy assumptions and from further definition of several of its terms. These improvements will clear up both the misinterpretations and the legitimate concerns that have arisen, and more clearly signal the intent of the law.”

“It [the Bill] will put us back in the Ice Age. We will be travelling in an ox wagon on the information highway,” Buys concluded.