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By way of brief context, it is necessary to note that it is well established that the legal framework within which non-profit organisations (“NPOs”) operate must be consistent with international human rights law. This is due to the acceptance, by way of a Resolution from the United Nations General Assembly, that “everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels.” It is trite that the right to freedom of association serves as a vehicle for the exercise of many other civil, cultural, economic, political and social rights.
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Media Monitoring Africa (“MMA”) appreciates the invitation received from the Film and Publication Board (“FPB”) to provide both written and oral submissions for purposes of the upcoming consultative hearing. This consultative approach – spanning across the different sectors such as civil society, distributors, platforms and government entities – is imperative in securing a legal framework that is both rights-based and effective.
Notably, the FPB is currently at a crossroad, and is faced with critical decisions regarding its role, functions and mandate going forward. In doing so, it is crucial for the FPB to strike an appropriate balance between the competing rights and interests that may arise, for instance the right to freedom of expression, on the one hand, and the protection of children on the other. As our courts have repeatedly emphasised, there is no hierarchy of rights contained in the Constitution, and any limitation of a right must necessarily be reasonable and justifiable in an open and democratic society.
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As organisations promoting freedom of expression, this submission focuses on South Africa’s compliance with international human rights obligations related to freedom of opinion and expression and on progress made since the last review in 2017.
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This submission is made by Media Monitoring Africa (“MMA”) to the South African Human Rights Commission (“SAHRC”) in response to the invitation for submissions from those who have information that can assist in the National Investigative Hearing into the July 2021 unrest, which affected especially the provinces of Gauteng and KwaZulu-Natal (“Investigation”). We welcome the efforts of the SAHRC to better understand the context within which the July unrest occurred, the factors that escalated the unrest, and the impact of the unrest.
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Media Monitoring Africa (“MMA”) welcomes the opportunity to provide this submission to the (the Committee) on the Criminal Procedure (“the Bill”). MMA was an applicant in the Centre for Child Law and Others v Media 24 Limited and Others1 (“the CC judgment”) and engaged in the public participatory process on this Bill before the Department of Justice and Constitutional Development. We, therefore, appreciate the important purpose of the Bill in seeking to protect the identity of children in conflict with the law, children who are a witness in criminal proceedings, and children who are the victims or survivors of an offence.
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Media Monitoring Africa (“MMA”) welcomes the opportunity to provide this submission to the Portfolio Committee on Justice and Correctional Services on the Prevention and
Combating of Hate Crimes and Hate Speech Bill (“the Bill”). We recognise the Bill arises in the context of South Africa’s deep and lasting injustices, which cut along the contours of social difference, including racism, patriarchy, classism, ableism, xenophobia, homophobia, transphobia, and other ills. It is accordingly important for South Africa to have a clear and
effective legal framework for addressing hate crimes and hate speech while ensuring appropriate protections for freedom of expression and other constitutional rights.
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Media Monitoring Africa has applied to be admitted as an amicus curiae in this matter in terms of Rule 16A(5) of the Uniform Rules of Court. None of the parties oppose Media Monitoring Africa’s admission. The Magistrates’ Court concluded that SANEF’s application for broadcast access should be refused. The Magistrates’ Court found that the potential uncertainty and endless possibilities that could arise in pre-trial processes meant that there should not be any live (or even delayed) broadcast of the proceedings.
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In Notice No. 620 published in Government Gazette No. 44865 dated 15 July 2021, the Minister of the Department of Communications and Digital Technologies (the Department) published the SABC Bill 2021 (the Bill) for public notice and comment. Media Monitoring Africa (MMA), the SOS Coalition in Support of Public Broadcasting (SOS) and SASFED (collectively, the Organisations) thank the Department for the opportunity of making these written submissions and requests an opportunity to make oral presentations. In this regard, the Organisations are of the respectful view that the matters traversed in the SABC Bill are so essential that oral hearings must be held and trusts that the Department will ensure that this is done in due course.
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Presented by William Bird, Director of Media Monitoring Africa Supported by Avani Singh, Director of Power Singh Inc.
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We, a partnership of civil society activists, researchers, legal professionals, and feminists welcome this opportunity to submit written comments in response to the call for
submissions issued by the Select Committee on Security and Justice (“Committee”) on the Domestic Violence Amendment Bill [B20B – 2020] (“Bill”).
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Media Monitoring Africa (MMA) welcomes the opportunity to provide this submission to the Special Rapporteur on the Promotion and Protection of Freedom of Opinion and Expression (Special Rapporteur) regarding gender justice and the right to freedom of opinion and expression. MMA commends the Special Rapporteur on selecting this thematic area for the upcoming report to the General Assembly, as it is one that urgently needs to be addressed in order to ensure the full realisation of fundamental rights, both on- and offline.
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Media Monitoring Africa (MMA) welcomes this opportunity to provide information to the Competition Commission of South Africa (Commission) in respect of its assessment of the impact of the recommendations of the Data Services Market Inquiry (DSMI) on the cost of data and access to data. This submission addresses the questions contained in theCommission’s letter of 10 June 2021, and provides MMA’s views on the effectiveness of the DSMI and the agreements that were entered into with the mobile network operators (MNOs).
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Media Monitoring Africa (MMA) welcomes the opportunity to provide this submission to the Independent Communications Authority of South Africa (ICASA) regarding the Discussion Document on the Review of the Review of the Independent Broadcasting Authority (Advertising, Infomercials and Programme Sponsoring) Regulations, 1999 (the Discussion Document). MMA notes at the outset that this is a much-needed development, given that the Independent Broadcasting Authority (Advertising, Infomercials and Programme Sponsoring) Regulations, 1999 (the Regulations) are significantly outdated and have been overtaken by an array of developments in the advertising and digital spaces. MMA therefore urges ICASA to treat this matter as one of priority, while still following due process with regard to processes of consultation and public participation.
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About Media Monitoring Africa:
Submissions, strategic litigation, and advocacy processes relating to the triad of information, including children’s information rights. Working with, and on behalf of children:
•Parliamentary submissions, submissions to various Ministries, and submissions to the United Nations Committee on the Rights of the Child
•Web Rangers
•Applicant in Centre for Child Law v Media 24 Limited
•Amicus Curiae in AmaBhungane Centre for Investigative Journalism v Minister of Justice
•Developed guidelines, discussion documents: children’s rights including privacy rights, data protection, identifying children in the media
It is incumbent upon SOS and MMA to respond to significant policy processes as they unfold to support the public interest in the outcomes of these processes. In this regard, on 28 January
2021, MMA hosted a roundtable with key stakeholders – including from government, industry, civil society and academia – to workshop the policy proposals being made as part of this
process in order to ensure that the present submission is reflective of a wide range of considered views.
Media Monitoring Africa (MMA) welcomes the opportunity to provide this submission to the Special Rapporteur on the promotion and protection of the right to freedom of opinion
and expression in order to assist in the preparation of the Special Rapporteur’s annual thematic report to be presented to the Human Rights Council at its 47 th session in June 2021.
Media Monitoring Africa (MMA) welcomes the opportunity to provide this submission to the Portfolio Committee on Social Development (the Committee) on the Children’s Amendment Bill [B18–2020] (the Bill). We note the important purpose of the Bill in, among other aspects, seeking to provide for children’s right to privacy and the protection of their personal information. MMA welcomes this inclusion, noting that privacy is both an important right in itself and an enabler of other rights. Further, we are of the view that the inclusion of children’s privacy rights and the protection of their personal information is a necessary inclusion, particularly in the digital era where much of our lives, and those of children, are moving increasingly online.
Media Monitoring Africa (MMA) welcomes the opportunity to provide this submission to the Committee on the Rights of the Child (Committee) on the Draft General Comment on Children’s Rights in Relation to the Digital Environment (Draft General Comment). We note the important purpose of the Draft General Comment in detailing the various ways in which the principles, rights and responsibilities of the Convention of the Rights of the Child (CRC) find application in the rapidly evolving digital environment. Further, we are of the view that the Draft General Comment has the potential to contribute positively to the realisation of children’s rights online, which in turn can have innumerable benefits for children from diverse backgrounds with varying capabilities, creating unprecedented opportunities for equality and inclusion.
Media Monitoring Africa (MMA) welcomes the opportunity to make submissions on the Draft Paper on Competition in the Digital Economy (Draft Paper). As a point of departure, MMA shares the view that the digital economy presents crucial opportunities to address unemployment, inequality and poverty in South Africa, but that these opportunities are not yet being appropriately harnessed.
This submission focuses on the importance of access to telecommunications to enable the full enjoyment of fundamental rights and the need for a right-based approach in the finalisation and implementation of the findings and recommendations made by ICASA, in respect of regulating the mobile broadband services industry. The purpose of this submission is to highlight several key aspects that MMA submits should properly be dealt with in the Discussion Document, but have not found appropriate reference
Media Monitoring Africa (“MMA”) provides this submission on the Draft Films and Publications Amendment Regulations, 2020 (“the Draft Regulations”), in response to the call for submissions published by the Minister of Communications and Digital Technologies (“the Minister”). The Draft Regulations raise issues on which MMA has been consistently engaged, including through the following work:
1.1. In April 2016, MMA hosted a multi-stakeholder workshop focused on the regulation of digital content. Through this workshop, one of the core aims was to deepen an understanding of the issues by and between the relevant stakeholders, and further establish areas of commonality and principle agreement.
1.2. In May 2016, MMA prepared a written submission on the Films and Publications
1.3. Currently, MMA – together with the Film and Publication Board (“FPB”) and Google South Africa, among others – spearheads the Web Rangers programme. Web Rangers is an international digital and media literacy programme designed to empower young people with critical skills on how to use the internet and social media responsibly and confidently.
Media Monitoring Africa (MMA) welcomes the opportunity to provide this submission on the Draft Code for Persons with Disabilities Regulations (Draft Regulations) published by the Independent Communication Authority of South Africa (ICASA). It is estimated that over 4.5 million people in South Africa are living with a disability. While there is limited data and research on the situation in South Africa of persons with disabilities in respect of accessing broadcasting and information and communication technologies (ICTs), the challenges and urgent need for appropriate strategies, responses and implementation is well documented.
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Accordingly, MMA notes that the Draft Regulations have the potential to contribute positively towards overcoming the uneven distribution of accessing various services, and thereby to ensure that persons with disabilities have meaningful access to information. The importance of promoting access to broadcasting and electronic communication services for persons with disabilities cannot be gainsaid given the array of opportunities and benefits that come with accessing such services.
This submission on the Draft Paper on Digital Futures: South Africa’s Digital Readiness for the Fourth Industrial Revolution (Draft Paper) is made by Media Monitoring Africa (MMA), and endorsed by the South African National Editors’ Forum (SANEF), the Interactive Advertising Bureau of South Africa (IABSA), the Centre for Human Rights (CHR), and the Coalition on the African Declaration on Internet Rights and Freedoms (AfDec Coalition).
Together, the above mentioned organisations welcome the opportunity to provide this submission, and note the important purpose that the Draft Paper serves in ascertaining South Africa’s readiness for the Fourth Industrial Revolution (4IR). In our view, constructive and meaningful recommendations that are appropriately implemented by relevant stakeholders have the potential to contributing positively towards overcoming the digital divide in South Africa, as well as opening up access to the unprecedented development opportunities offered by digital technologies.
The stark reality is that the protection of information held by the state is currently governed by apartheid-era legislation still on the statute books. Parliament has twice – in 2008 and 2010 – attempted to introduce legislation intended to repeal and replace the Protection of Information Act, 1982. These attempts were met by broad public opposition on the basis that those bills facilitated excessive degrees of government secrecy and, if passed, would violate the right to freedom of expression.
The second of these bills, in its eighth iteration and issued in 2013, has now been referred back to Parliament by President Ramaphosa for an unprecedented second time for reconsideration due to concerns about its constitutionality.
The undersigned signatories agree that, following the President’s referral, an opportunity has arisen to address the many unconstitutional aspects of the Bill. The overarching concern is the need to strike the appropriate balance between the genuine needs of state security against the rights to freedom of expression and access to information.
Media Monitoring Africa (MMA) welcomes the opportunity to provide this submission to theMinister for Women, Youth and Persons with Disabilities (the Minister) on the National Youth Policy for 2020-2030 (NYP2030). We note the important purpose of this policy in creating optimal youth development in South Africa, as well as the inherent need to decisively address new and emerging opportunities and challenges experienced by the youth. Further, we are of the view that the NYP2030 has the potential to contribute positively to sustainable, accessible and adequate opportunities for the social and economic development of the youth in South Africa.
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Media Monitoring Africa (MMA) welcomes the opportunity to provide this submission to ARTICLE 19 on the consultation paper regarding Social Media Councils (SMCs). At the outset, MMA wishes to acknowledge the consultative approach taken by ARTICLE 19, as this will serve to ensure that the consultation paper is ultimately more robust and better able to meet its intended objectives.
Media Monitoring Africa (MMA) provides this submission to the Portfolio Committee on Justice and Correctional Services (Portfolio Committee) on the Promotion of Access to Information Amendment Draft Bill (the Bill). MMA welcomes the opportunity to provide this submission, and to work towards securing openness, accountability and transparency in the electoral process in line with the vision contained in the Constitution of the Republic of South Africa, 1996 (the Constitution), including in sections 1 and 19 thereof.
190826 – MMA – Amendment to PAIA (final)
MMA welcomes the opportunity to provide this submission to the South African Law Reform Commission (SALRC) on the Discussion Paper on Sexual Offences (Pornography and Children) and the Draft Bill published in terms of the Discussion Paper. MMA has drawn on our experience from our various work in protecting and promoting the triad of information rights and the best interests of the child. Where it is necessary to balance competing rights and interests, we stress the limitation of any right is only permissible where it is reasonable and justifiable to do in an open and democratic society.
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Media Monitoring Africa (MMA) provides this submission on the Cybercrimes Bill B6B-2017, in response to the call for submissions by the Select Committee on Security and Justice (Select Committee) of the National Council of Provinces.
As a point of departure, MMA commends the important strides that have been made in respect of the Cybercrimes Bill, in particular the removal of the sections on cybersecurity and critical information infrastructure. (more…)
DOWNLOADSOn the 14th November, We (Media Monitoring Africa) and SOS: Support Public Broadcasting Coalition sent a letter to the Chairperson of the Portfolio Committee on Communications noting the urgency which the remaining positions on the SABC Board need to be filled.
“As the country prepares for national elections in 2019, the importance of an effective public broadcaster and fair and equitable public political broadcasting should be evident to this Committee. These appointments are undoubtedly urgent and if not made timeously, will have a deleterious impact on the numerous challenges faced by the SABC and its current Board and Executive Management and may further serve to delay the implementation of a turn-around strategy for the SABC.”
We are awaiting response and should these appointments not be announced by 30 November 2018, we will seek legal recourse and approach a court for appropriate relief in this regard.
Read the full letter to parliament, attached below.
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In November 2017, MMA made a submission to the Competition Commission’s Data Services Market Inquiry. This year, in October 2018, we were invited to present our submission before the Competition Commission. Our submission focused on ensuring the following foundations are at the core of our approach to data cast and access to information:
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- We need a clear, coherent digital policy;
- A multi-stakeholder, multi-sectoral approach must be adopted (ongoing, haphazard or singular entity dominance fail our democracy);
- Policy must have at its basis in the following:
- Public interest as paramount;
- Deliberate effort to bridge digital divide & combat inequality (this will not happen unless deliberate steps are taken to do so);
- Be in line with African Declaration on InternetRights (http://africaninternetrights.org/)
- Marginalised interests (esp. not just rich v poor)
- Help realise the rights in our Constitution
MMA provided a written submission to the Electoral Commission of South Africa on the proposed Regulations Regarding Represented Political Party Funding published in terms of section 24(2) of the Political Party Funding Act 6 of 2018 (the Act). MMA welcomed the opportunity to provide this submission, and to work towards securing openness, accountability and transparency in the electoral process in line with the vision contained in the Constitution of the Republic of South Africa, 1996.
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- SOS and MMA make submissions into the Zondo Commission 21 September 2018 The SOS Coalition and Media Monitoring Africa have submitted a joint statement to the evidence leaders in the Zondo Commission requesting that the enquiry look into the extent of state capture in the broadcasting sector. Some of the most obvious effects of state capture are now playing out at the South African Broadcasting Corporation (SABC). These include the SABC being near crippled by the results of financial mismanagement, abuse of corporate governance, corruption, editorial interference, sexual harassment and threats to journalists. We believe that the commission needs to also uncover the complexities of seemingly corrupt practices involving the SABC, Multi-Choice, ANN7, the Department of Communication and former Minister Faith Muthambi in particular We hope that our statement will assist the enquiry in further uncovering the full extent of State Capture in a sector that was critical to shaping the public perception. The issues are especially pertinent as public broadcasting is essential to meeting the information needs of the people of South Africa and we hope the enquiry will help protect the vital freedom of expression rights protected by our Constitution; and indeed our entire democratic project. For further information please contact: Duduetsang Makuse (National Coordinator, SOS Coalition) duduetsang@soscoalition.org.za +2760 911 5889 OR Thandi Smith (Chair of SOS Chairperson) thandis@mma.org.za +2773 470 7306
MMA and SOS: Support Public Broadcasting Coalition provided a joint submission in response to the call for submissions by the Independent Communications Authority of South Africa (ICASA). National sports and events play a key role in uniting South Africans under a common purpose and goal. National sports enjoy widespread support and generate public interest, and at the same time can also serve to promote inclusivity and diversity. This submission has a particular emphasis on the impact of the Draft Regulations on the South African Broadcasting Corporation (SABC) as the public broadcaster and a free-to-air (FTA) licensee, and the proposed obligations that the Draft Regulations would impose.
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We thank and commend the SABC senior management for launching these inquiries which are both critical steps in rebuilding the credibility of the SABC. Similarly, the Chairperson for his support and opportunity to present our submission.
As critical outsiders, supporters and critics we hope that those responsible will be accountable and practical to the steps that are implemented to the editorial policies, for threats against the SABC and deaths of Suna Venter and Sizwe Vilakazi and will be brought to justice.
Read submission
MMA_SABCEd_InquiryPresv2
The SABC Editorial Policies were developed in terms of the Broadcasting Amendment Act (2003) and came into effect in 2004 following public consultation and input. This established a specific link between the public broadcaster and the South African public and allows for direct participation and input in the affairs of the SABC. These policies are intended to ensure compliance with the ICASA code of conduct, the corporation’s licence conditions, and the provision of the Act, and should be reviewed (in consultation with the public) every five years. However, due to ongoing management and Board problems at the SABC, the first revision process was only initiated in 2013. This process, too, was found to lack the substantive consultations required and on the 8th of March 2017, ICASA declared that the editorial policies were invalid and the 2004 policies were reinstituted. Our comments in the submission dated 8th March 2017, are therefore based on the 2004 editorial policies.
On the 23rd July 2018, the SABC published a call for comments on the revised SABC Editorial Policies. The revised document appeared to be an almost cut and past copy of the 2004 Editorial Policies, which was extremely disappointing given the previous public consultations taking place, as well as the fact that the SABC had had 9 months to review submissions and draft changes accordingly.
These submissions are made by the SOS: Support Public Broadcasting Coalition (SOS), Media Monitoring Africa (MMA) and the South African National Editors Forum (SANEF) (collectively, the Group) a grouping of civil society organisations with different focus areas but all involved in preserving media freedom and working to improve the media landscape in South Africa and promote freedom of expression and access to information in South Africa, often with a public broadcasting focus.
Formal written submission on the Copyright Amendment Bill (2017) from Media Monitoring Africa (MMA) in conjunction with South African National Editors Forum (SANEF) and Caxton and CTP Publishers and Printers ltd.
MMA has made a further submission on the Copyright Amendment Bill (2018), further endorsed by Media24, Caxton Media and the South African National Editors’ Forum. The submission
(1) highlights the need for further public engagement, that;
(2) the language in the Copyright Amendment Bill is cognisant of and appropriate for digital media and;
(3) we briefly address the PCTI’s approach to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (Marrakesh Treaty).
In making these submissions, SOS and MMA are attempting to assist ICASA in realising the depth and breadth of the challenges facing the television sector and the role of the effective monopoly player, MultiChoice, in creating the landscape that all television, public, commercial and community, free to air and subscription, finds itself in. See the presentation below.
SOS-MMA- Subscription Inquiry Final
MMA and SOS presented the positions at the oral hearings, held at Icasa on the 8th May. Find the full presentation below.
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13 March 2018
WRITTEN SUBMISSIONS ON THE CRITICAL INFRASTRUCTURE PROTECTION BILL BY THE SOUTH
AFRICAN NATIONAL EDITORS’ FORUM (SANEF), THE SOS: SUPPORT PUBLIC BROADCASTING
COALITION AND MEDIA MONITORING AFRICA (MMA)
- INTRODUCTION
These submissions are made by the South African National Editors Forum (SANEF), the SOS:
Support Public Broadcasting Coalition (SOS) and Media Monitoring Africa (MMA) (collectively, the
Group) a grouping of civil society organisations which different focus areas but all involved in
preserving media freedom and working to improve the media landscape in South Africa and to
promote freedom of expression and access to information in South Africa.
Read more details in document below;
SANEF, SOS and MMA – Critical Infrastructure Protection Bill Submission – 13 March 2018 – Final
SOS and MMA have extensive experience in acting in the public interest on matters of freedom of expression and specifically public service broadcasting. Both organisations have extensive experience in contributing to ICASA and Department of Communications- processes with regard to broadcasting.Further, as the DTPS is aware, SOS and MMA are concerned about the electronic communications environment as a whole, even though traditionally their area of focus has been on broadcasting and, in particularly, on the public broadcaster, the SABC. MMA has over the last year held a series of multi-stakeholder workshops dealing with critical issues relating to internet governance, from the Hate Speech Bill, the Film & Publications Bill and Internet Regulation to the Copyright Amend Bill and the Cyber Crimes and Cyber Security Bill. Accordingly, MMA and SOS are well placed to offer informed input on this Bill.
In responding to the issues raised in the Bill, SOS and MMA do not necessarily deal with all the issues raised in the Bill or in the order in which they arise in the Bill, nor do they confine themselves to the issues canvassed in the Bill. In making these submissions, SOS and MMA are attempting to assist the DTPS and the Portfolio Committees in realising:
- the depth and breadth of the challenges facing the electronic communications sector;
- the need for a legislative framework that recognises the reality of convergence; and
- the need to ensure independent regulation of electronic communications, including as provided for in section 192 of the Constitution of the Republic of South Africa, 1996 (the Constitution).
This submission on the draft Regulations published for comment by the Information Regulator in terms of section 112(2) of the Protection of Personal Information Act 4 of 2013 (POPIA) is made jointly by the Press Council of South Africa (Press Council), the South African National Editors’ Forum (SANEF), Media Monitoring Africa (MMA) and the amaBhungane Centre for Investigative Journalism (amaBhungane)
This submission focuses on the impact and application of the provisions of the draft Regulations on the media, particularly in the light of the express journalistic exclusion contained in section 7 of POPIA. The Press Council, SANEF, MMA and amaBhungane believe in independent co-regulation of the media, involving exclusively representatives of the media and representatives of the public, as it is our firm view that any other form of regulation would threaten the independence of the media.
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This submission is guided by the principle that children are active agents who, if given the opportunity and in accordance with their evolving capacity, have the ability to meaningfully contribute to various complex matters that affect their lives. Like all other citizens, children have a crucial role to play and have a critical voice to add to the development and dialogue that takes place in the country.
This submission outlines the views of children who watch the SABC and whose feedback has been pulled together and submitted as part of the civic participatory process. The About Media Monitoring Africa (MMA) and its Child Participants Section provides information on the organization and the children behind the submission. Findings are presented in three categories: (1) Children’sviews on SABC News, (2) Children’s views on SABC Local Content, and (3) Children’s views on SABCprogrammes. The last section lists recommendations for moving forward.
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Submission compiled by SABC Digital News for consideration in the process to review and update the SABC’s 2004 Editorial Policies. It is the result of internal workshops, external consultations and research on online content policies in newsrooms around the world. It attempts to formulate an editorial framework and policies for all the SABC’s online services, including websites, social media, online video and audio, and mobile services.
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Submitted by Izak Minnaar, Editor: SABC Digital News 25 August 2017
This submission is guided by the principle that children are active agents who, if given the opportunity and in accordance with their evolving capacity, have the ability to meaningfully contribute to various and often complex matters that affect their lives. Therefore, given the far reaching implications of the Prevention and Combating of Crime, Hate Crimes and Hate Speech Bill on the South African public including children, this submission outlines the views of children who engaged its contents and whose feedback has been pulled together and submitted as part of the civic participatory process. The About MMA and its Child Participants Section provides information on the organisation and the children behind the submission. The Executive Summary highlights the main findings from the children’s engagements. Under General Feedback, broad commentary can be found relating to the group’s views of the Bill in its current form and feedback relating to the definition of hate crimes which is outlined under the Definition Section. Child-driven insights relating to penal sanctions are explored under the Sentencing and Alternatives Section while the Considering Schools section discusses implications of the Bill in the school environment Under Visual Illustrations, the children’s art that accompanied their words is used to further illustrate their perspectives. The last section outlines the Recommendations.
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MMA welcomes the draft bill on the Prevention and Combatting of Hate Crimes and Hate Speech Bill, although there are some critical changes that need to be implemented. Read MMA’s full submission for further information.
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26 May 2016
On 26 May 2016, Media Monitoring Africa (MMA) and SOS: Support Public Broadcasting Coalition (SOS) put forward a formal written submission on the Film and Publication Amendment Bill, as invited by parliament. As its name implies, the bill aims to amend certain sections of the Film and Publications Act. Importantly for us, it looks to broaden the scope of the Act to include the regulation of digital content. While MMA and SOS both see the need for legislation to be brought in line with the new digital reality and the dangers thereof, we argue that the bill in its current form may obstruct the potential growth and opportunities offered by the internet.
The following unpacks in more detail the legislation and the Amendment Bill as they currently stand as well as presents our position on the Bill with our recommended suggestions and changes.
The Film and Publication Act: Background
The Film and Publications Act, no. 65 of 1996, provides the legislative framework to classify films, games and publications. The Film and Publications Board (FPB), as the statuary body defined in the Act, is the institution that carries out such classifications in South Africa i.e. the FPB are the group that advise whether a program is suitable (or not) to those in a certain age group (younger than 16 years old etc.) and why they think so (strong language, violence, graphic sex etc.).
This Act was a deliberate move away from the Apartheid-era censorship that saw the government in complete control of the content that was broadcast. The FPB therefore aims to supply the public with all the necessary information for them to make their own choice about what films they watch or what games they play.
What does the Amendment Bill look to change?
The Film and Publications Amendment Bill aims to update and modernize the existing legislation: (1) to change certain terms and definitions, (2) to further criminalise activities related to “child pornography” (see note on definitions below) and (3) to extend the regulatory powers of the FBA and the FPB to include digital content. It was formally introduced to parliament on 30 November 2015 and interested parties were given until 26 May 2016 to submit their thoughts and recommendations.
See the full Amendment Bill here:
http://www.parliament.gov.za/content/b%2037%20-%202015%20(films%20&%20publications)~1.pdf
What did we think?
The internet revolution has brought about a myriad of changes to the ways in which the world operates. We recognise that the government has the unenviable task of developing legislation that both mitigates against the potential threats online but that which also promotes freedom of expression and facilitates the widespread and constructive use of the internet. As it stands, we feel that the Amendment Bill focuses almost exclusively on the risks and dangers (such as cybercrime) and downplays how people’s access to the internet is a facilitative right and is integral to us realizing our development potential. We therefore offer multiple recommendations and suggestions in our parliamentary submission. To find our full submission, follow this link: http://bit.ly/2cvMB2F
For the purposes of brevity, we will focus on three core issues here.
Powers of the FPB
One of our biggest concerns is that the Amendment Bill in its current form seeks to extend the powers of the FPB in such a way that seems to infringe on multiple sections of our Constitution. Specifically, if this Bill were to be legislated, only content that is classified by the FPB would be permitted online. In our view, this system of pre-publication classification is not only impractical but also violates people’s rights both in terms of access to information and in terms of freedom of expression. In our current digital age, this type of regulation would be an express form of online censorship and in MMA’s opinion, could not be found acceptable or appropriate in our context.
The Bill also seeks to provide the FPB with seemingly absolute power. We argue that none of the authorities established under the FPB Act or those that were put forward in the Bill are sufficiently independent autonomous institutions to allow for a free unbiased regulatory broadcasting body. Currently, the FPB Council is appointed by the Minister and our concern is that government, if the Bill passed, would have access to potential interference with online content, which in our view, is unconstitutional.
The impact on user-generated content
One of the primary sources of confusion in the Bill relates to definitions around ‘ online distributor’, ‘content’, ‘digital film’ and ‘conducts business’, among others. The definitions provided for these terms cloud exactly what type of content needs to be classified and what groups are involved. For example, the Minister has already suggested that those that “conduct business” with digital content could pay as much as R800 000 for their “license fee”. But the Bill remains unclear as to who can be defined as “conduct[ing] business”? Are individuals with a part-time blog regarded in the same way as international players such as Netflix whose sole business is online streaming? Can we expect said bloggers to pay such an exorbitant license fee to simply upload a video demonstrating their newest recipe?
Beyond those with potential business interests, the definition of ‘distributor’ is also broad enough to include all user-generated content. Every day, tens of millions of ordinary South Africans upload and share an unthinkable volume of content often through social media networks. How can the FPB expect every internet user who wishes to upload something to be part of an industry classification body? Equally, how can the FPB expect to classify the plethora of videos, links, photos and articles uploaded by private citizens every day? The logistics of attempting to regulate all content uploaded to the internet is simply unworkable and these objectives laid out by the Bill are plainly impractical in the face of the broad spectrum of internet users and the volumes of digital content involved.
We would argue that the FPB would need to re-examine these definitions specifically in order to clarify who would be held accountable for the distribution of their online content.
Children-related issues
It is clear that a major objective of the Amendment Bill is to strengthen the protection of children in the digital space. While this is indeed a concern, there appears to have been a major gap in the public participation process where no children or youth or even children’s rights groups were consulted at all. How can one develop laws and policies without the views of the very people for whom the legislation is developed? We would argue that this is a major oversight on the part of the Film and Publications Board and thorough public participation with children and youth would need to occur before the Bill should be taken further. Such consultation will also bring to light the fact that children are a broad sector of society that represent a diversity of individuals that have their own agency and are of different developing capacities, risk profiles and resource bases. It is critical that such diversity is considered and reflected in this legislation.
We have also taken issue with the use of the term “child pornography” in the bill. We argue that pornography itself is a constitutionally protected right of freedom of speech and it should not be affiliated to or confused with content that depicts sexual exploitation and abuse of children. It must be made clear that the latter content is strictly criminal. We suggest that the term “child abuse material” is a more appropriate phrase in this context.
Where are we now?
The issues raised above are only a handful of those brought up in our submission. Once again, you can find our full submission here: http://bit.ly/2cvMB2F
On the 31 August, 2016, Media Monitoring Africa and the SOS: Support Public Broadcasting Coalition were afforded the opportunity to make an oral submission in parliament, to the Parliamentary Portfolio Committee on Communications. Once the oral presentations are concluded the Committee will deliberate the Amendment Bill, taking into consideration the views expressed in both the written submissions and the oral presentations. We look forward to further opportunities for engagement on this Bill.
For further information, both on our position and our submission, feel free to contact us at:
Thandi Smith
thandis@mma.org.za
Wellington Radu
wellingtonr@mma.org.za
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The possibility exists that new forms of cybercrime will emerge with evolving technology. New cyber laws should therefore be introduced to respond to these rapid changes, especially as they will impact different sectors and groups differently. In this regard it is critical that children and marginalised groups including women’s needs and issues are highlighted to ensure laws work to protect them and promote their rights. We also draw attention to the fact that the needs of other women and girls are also ignored in the Bill. Issues of online gender based violence need to be addressed.
There should also be continuous research and training of IT security personnel, finance services sector personnel, police officers, prosecutors and the judiciary to keep them abreast of advancing computer technology. At the end of the day, a balanced approach that considers the protection of fundamental human rights and the need for the effective prosecution of cybercrimes is the way forward.
Read the full submission below.
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- Written Submissions By The Media Monitoring Africa (MMA) On The Cybercrimes And Cybersecurity Billon the Films and Publications Amendment Bill
- Second written Draft Submission on the Cyber Crimes and Cyber Security Bill (August 2017)
- Supplementary Written Submission on the Cybercrimes and Cybersecurity Bill
In this submission, MMA argues that the Regulations in their current form are impractical, illegal, overly broad and will not achieve their stated aims
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31 August 2015
In an ever increasingly digital age where platforms not only converge but also where citizens are being swamped by international content the role and importance of local content could not be greater. While the digital world offers almost limitless options for the amount of content there is a need to ensure that we meet the needs of citizens. This means ensuring that people see themselves, their stories, their languages, their realities presented and represented. It means we have an even greater responsibility to our children to ensure that their needs as South Africans and Africans are not marginalised and added as after thoughts. Read the full submission below.
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MMA submits that the Draft Regulations in their current form deny children some of their basic rights as enshrined in the South African Constitution, the United Convention on the Rights of the Child and African Charter on the Rights and the Welfare of the Child. Accordingly we call for the withdrawal of the regulations in their current form.
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2 February 2015
Our submission focuses on the following:
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- Infrastructure and Services
- Audio and Audio-Visual Content Services
- Institutional frameworks
- Internet Governance and the Protection of Children Online
28 November 2014
The Universal Service & Access Agency of South Africa (Usaasa), the government agency tasked with bridging South Africa’s digital divide, has provided details of those who will qualify for a subsidy when buying a set-top box for watching digital terrestrial television.3.2. As universal access is considered a basic human right, MMA respectfully submits that in developing the Proposed Qualifying Criteria for the Set Top Box (STB) scheme, USAASA appears to have ignored the vast majority of households that it needs to service. We assert this as the Agency has set the threshold of households that deserve the partial subsidy at R3200/month. This amount presents the real possibility of poor TV owning households being cut off when the analogue signal is switched off. The failure to provide 100% subsidies, will also have a counter-productive to the entire digital migration process, it will not only result in a lot of people being unable to purchase the STBs but, will also lead to broadcasters only serving a limited market. Audiences are key to the success of digital migration
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4 November 2014
MMA was asked to make a submission to the Independent Newspapers User-Generated Content Panel. The main aim of the Panel is to report on and make recommendations concerning hate speech, personal attacks and defamatory statements contained in comments by the public on internet websites controlled by Independent Newspapers. MMA commends the Independent Newspapers for opening its processes to civil society and for discussing the hard pressing issue on how to regulate comments made on its online platforms. We hope this process will be exemplary to other media houses in South Africa that have not yet initiated some formal regulation around their online commentators.
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10 October 2014
In Notice No. 529 published in Government Gazette No. 37803 dated 4 July 2014, the Independent Communications Authority of South Africa (ICASA) published the Discussion Document on the Review of Regulation on South African Local Content: Television and Radio. MMA commends ICASA for initiating this process and publishing the discussion document. However, we are deeply concerned about the lack of reference in the document to the actual research done by the regulator. There are very few references to the research and case studies; this unfortunately weakens the “Discussion Document”.
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31 March 2014
MMA is excited to be participating in such a critical policy area, one that has the potential to help ensure South Africa can realise its potential as a nation a well as the values enshrined in our constitution. MMA has developed the following four key areas which speak directly to the underlying foundational principles which should be reflected in the ICT Policy:
Children and ICTs;
Broadband as a human rights issue;
Digital information and digital literacy;
Broadcasting and Diversity, and,
Issues of accountability and transparency.
The importance of the ICT policy cannot be underestimated, not only will it help shape our media environment it will also give an indication if we are to realise our nation’s capabilities and grow.
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