Media release: ANC Conference must reject ICT White Paper and Hate Speech Bill for South Africa to drop Apartheidesque communications policy

The Free Market Foundation (FMF) considers communications a crucial aspect of public policy to get right, as it is the medium by which all other civil engagement takes place. In this respect, the FMF has undertaken two large communications projects in the last year: The Information and Communication Technologies (ICT) Policy and the Hate Speech Bill.

In 2016 government published its ICT Policy White Paper, meant to chart the path for the future of South Africa’s mobile and broadband infrastructure and management. The FMF noticed a fatal flaw with this immediately; i.e. there was inadequate public participation on the central policies in the White Paper, and no socio-economic impact assessment was published.

Some problematic features of the policy include the proposed introduction of a semi-state monopoly in telecommunications, called the Wireless Open-Access Network. Government also proposes to control how ICT providers arrived at the prices for their products, and wants to change the way radio frequency spectrum is allocated in such a way that the semi-state monopoly will eventually hog the bulk of spectrum. Spectrum is the lifeblood of the telecoms industry, and this aspect of the White Paper alone stands to destroy the sector.

The FMF is not only concerned about this excessive regulation of the infrastructure of communication, but also the content of communication.

The Prevention and Combating of Hate Crimes and Hate Speech Bill, 2016 is an extremely dangerous piece of legislation; not only because of bad legislative drafting, but also because it has the potential to destroy freedom of expression entirely in South Africa.

The FMF submission to government on the Bill details the crucial issues with the proposed law. Some of them include:

1. It violates the principle of double jeopardy, as anyone guilty of “hate speech” will also be guilty of “hate crime”, and must thus be charged doubly in every instance.
2. It violates the free expression clause of the Constitution, providing people with protection from mere offence (“insult”) based on such criteria as “belief” and “occupation or trade”. This means lawyer jokes, political satire, and the battle of ideas between beliefs will be criminalised.
3. It provides for no exemptions or defences. Hate speech legislation elsewhere in the world allows for engagement in good faith, artistic expression, academic and scientific inquiry, and honest reporting; whereas our Hate Speech Bill does not.

Nelson Mandela said that “No one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens but its lowest ones.” Within the context of the Hate Speech Bill, this is apt. Sunlight is said to be the best disinfectant, and this applies to the disproven bigoted and prejudicial ideas still rife in South African society. A society which censors deeply offensive speech is not an open society where these bad ideas can be destroyed in public discourse.

Both the ICT Policy White Paper and the Hate Speech Bill represent a return to Apartheid thinking. During the previous regime South Africa had a state-centric communications regime, with government for instance having had the authority to decide when, and whether, the country would introduce television to the civilian populace. Speech-regulating legislation, such as the Suppression of Communism Act, also bear an eerie resemblance to the Hate Speech Bill, if not in form, in substance.

Ends

Note to the Editor

This media release is part of a series of media releases where the Free Market Foundation (FMF) provides alternatives to the various policy discussion planks of the African National Congress’ 2017 National Policy Conference. This is the second media release in the series, out of a projected total of sixteen. The first media release, which provided an overview of the series, can be found here.

You can access more in depth documentation re the above on the FMF’s website:

The Real Digital Divide (monograph on ICT white paper): http://www.freemarketfoundation.com/publications-view/monograph-the-real-digital-divide

Public Participation Paper: http://www.freemarketfoundation.com/Article-View/public-participation-and-impact-assessments

Submission on Prevention and Combating of Hate Crimes and Hate Speech Bill: http://www.freemarketfoundation.com/publications-view/submission-on-the-hate-speech-bill