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
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:
- 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.
- 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
- 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
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
The FMF will be hosting a media briefing on 21
June 2017 which will provide an overview of the FMF’s alternatives as well as
our vision for Radical Economic Transformation.