South Africa 18.5.2017 09:26 am

Free Market Foundation opposes hate speech bill and ICT policy

There are fears a new bill that seeks to criminalise hate speech in South Africa might infringe freedom of expression. Flickr/janinsanfran

There are fears a new bill that seeks to criminalise hate speech in South Africa might infringe freedom of expression. Flickr/janinsanfran

The FMF said the right to free, uncensored communication was the foundation of a truly democratic society.

The Free Market Foundation (FMF) on Thursday said the Information and Communication Technologies (ICT) policy and the hate speech bill represented “a return to state censorship”.

The FMF said in a statement, the “ICT white paper and hate speech bill are a return to apartheid thinking”, adding that the African National Congress (ANC) policy conference “must drop both for a free society”.

The FMF said the right to free, uncensored communication was the foundation of a truly democratic society.

“The absence of this fundamental entitlement was a hallmark of the apartheid regime, which, inter alia, sought to control whether citizens would have the right to watch television, something taken for granted by rest of the world.

“Today, there are warning signs of a return to this state-centric thinking.”

The FMF said it was disturbed by two prima facie unrelated policy proposals, both of which it said represented a return to state censorship.

“The government seeks to control the means of communication via the ICT policy. Speech-regulating legislation, such as the hate speech bill, seeks to control the content of communications and bears an eerie resemblance to the Suppression of Communism Act if not in form, then in substance.

“South Africa needs to be aware and on guard against this ominous trend,” the FMF said.

In 2016, the Department of Telecommunications and Postal Services published the long-delayed ICT policy white paper, meant to chart the path for the future of South Africa’s mobile and broadband infrastructure and management.

The FMF said this policy “not only contains serious threats to a thriving post-apartheid success story, but the process by which it was derived, has two fatal flaws that mean the proposal should be scrapped in its current form and sent back for re-evaluation”.

The FMF said the fatal flaws included an inadequate public consultation process on the central ideas.

“This selective process continues in that consultation is being undertaken on implementation, but the minister forbids any discussion on the policy itself. More shades of apartheid control.”

The other flaw, said the FMF, was that no socio-economic impact assessment (SEIA) was published as required by Cabinet as part of the consultation process.

“One later appeared, after consultations ended, but it is patently done in a hurry, is badly drafted, incompetent and does not meet even the basic SEIA preparation requirements.

“The key problems within the ICT white paper include the proposed introduction of a semi-state monopoly in telecommunications, the Wireless Open-Access Network (WOAN), which came as a nasty surprise to the industry and, contrary to ministerial denials, is the subject of current intense and confrontational negotiations between the network operators and the minister behind closed doors.

“Government also proposes to control how ICT providers arrive at the prices for their products, and intends to change the way radio frequency spectrum is allocated so that the semi-state monopoly will eventually hog the bulk of spectrum.”

The FMF said spectrum was the lifeblood of the telecoms industry and critical to investment, which was essential to drive the industry forward.

“Without it South Africa will fall behind its peers and miss out on the next generation of technological advancement. This aspect of the white paper alone stands to destroy the sector.”

The FMF said not only was excessive regulation of the infrastructure of communication cause for great alarm, the proposed government control of content of communication threatened freedom of expression, which since 1994, was a right “that all of us take for granted”.

“The prevention and combating of hate crimes and hate speech bill 2016 is extremely dangerous legislation, not only because it is badly drafted but also because it has the potential to destroy freedom of expression entirely in South Africa,” the FMF said.

It added its submission to government on the bill detailed the crucial issues with the proposed law including how it “violated the principle of double jeopardy, as anyone guilty of ‘hate speech’ would also be guilty of ‘hate crime’, and must thus be charged doubly in every instance”.

In addition, FMF said, the bill violated 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.

“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 the South African hate speech bill does not.”

 

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