Judging by the ads, the African National Congress has high hopes of using consumer-paid SMSs to win extra votes in the coming poll. The party’s cellular push is tiny compared to the porn vendors selling content to cellphones, but indicative of the growing jostle in the mobile publishing market.
The marketing of ringtones helped change phones from interpersonal comms devices into a mass medium for pushy publishers. But whether it’s politics or porn, the conversion of cellphones into small-scale subscription broadcast receivers raises complex regulatory questions.
- South Africa has legal strictures on how radio and TV cover elections, including on political advertising. What should be the case when this content is sent out to cellphones?
- We also have official classification of ”adult” content for movies and DVDs, and statutory self-regulation by broadcasters. What about protecting children from pornography in the case of cellular dissemination?
More and more, the Independent Communications Authority of South Africa (Icasa) is increasingly vexed by these questions. Indeed, the body plans an official inquiry later this year.
At a workshop in 2005, Icasa chief Paris Mashile highlighted three views regarding the regulation of mobile content:
- those who say existing regulation is too lax;
- those wanting regulation — but not by the state; and
- those who fear that regulation will see Big Brother tell us what messages to consume.
Mashile proposed a multipronged approach drawing on elements of all three. He referred to some state regulation, some industry self-regulation and some efforts to promote media literacy among the public.
What complicates things, however, is who ought to be acting in each of these areas.
In classic broadcasting, responsibility for content falls on Icasa and the voluntary industry body, the Broadcasting Complaints Commission of South Africa. But their legal mandate does not extend to content carried via telecoms.
The technology anyway is different. Broadcasting controls ”adult” content through ”watershed” scheduling, and by providing forewarnings and SNVL-style labels. By contrast, cellphone content is generally available at any hour, and labelling does not help if a child plays privately with a cellphone as distinct from watching TV in a family context.
Icasa is also responsible for regulating the broadcast of election content. Its licensees are subject to rules about political balance and political ads. The South African Broadcasting Corporation, in addition, has Icasa-approved editorial codes that elaborate on these principles.
But, again, Icasa has no authority over political content that comes over telecoms. It’s also questionable whether the regulator could ever even have the capacity to track cellular content during elections.
Act
The impending Electronic Communications Act confirms that electronic content providers (as distinct from broadcasters) do not need licences. On the other hand, the law does allow for codes of conduct to be required of the content distributors.
Could Icasa therefore lean on Vodacom, MTN and Cell C to take some responsibility for both electoral and ”adult” content on their services? Perhaps — if it can get around the Electronic Communications and Transactions Act, which limits the liability of mobile operators for what’s carried on their networks.
Another regulatory body, however, the Film and Publications Board (FPB), has some authority over cellphone content, at least as regards pornography. Both the FPB and Icasa have argued that purveying porn on cellphones amounts to distribution and/or publication for the purposes of the Films and Publications Act.
If so, then South Africa’s sellers of cellular pornography ought to be licensed (like a sex shop) in order to function legally. The FPB in fact claims that wireless applications service providers (Wasps) that currently send ”adult” content to cellphones are operating illegally.
All this raises the prospect of co-regulation by Icasa and the FPB. Icasa might try to put conditions on those owning the ”pipes”, and the FPB on those who punt the porn through them.
Codes of conduct
Meanwhile, hoping to reduce such direct control, the two industry groups involved in cellular publishing have recently adopted codes of conduct.
First were the content purveyors themselves — the Wireless Application Service Providers Association (Waspa). Their code commits members to the Film and Publications Act classification guidelines, and to trying to ensure that only adults may access pornography on cellphones. Errant members of the association can be fined.
Soon after came the three cellular companies with what they call an ”operator’s code”. Despite being exempt from content liability, the trio have nevertheless agreed to withhold amounts payable to any Wasp that flouts ”adult” content rules. They can also decide to block access to a specific number or service.
These groups all insist, however, that parents must also take responsibility for controlling children’s access to content. This stance points towards the third prong proposed by Mashile, namely, parents — rather than institutions — playing Big Brother.
Such a role for the public is underlined by the fact that controlling content that comes through a conventional SMS or MMS is one thing. But the same content coming via mobile internet is quite another.
Internet
In particular, internet via cellphones will bypass any combined efforts of Icasa, the FPB, Waspa and the operators. It gives access to a host of global content providers — people far removed from the jurisdiction of South African licensed cellular firms or FPB-approved pornographers.
The imperative therefore seems to be that people concerned about children and pornography move from a ”protect them” mentality towards a new one of ”prepare them”.
The same principle applies to electoral content carried on phones, given that official regulation is not currently in any law and that formal self-regulation in this arena is non-existent among both political parties and cell operators.
In short, the public, and especially young people, need to learn media literacy. That means the skills to situate content that tries to manipulate our emotions for vested gain. It entails ”regulating” one’s own consumption in an informed way.
But whose responsibility is it to promote this?