Guy Berger, Rhodes University, South Africa

1. Media freedom in the digital ageConference on “African Constitutionalism: Present Challenges and Prospects for the Future” 3-4 August 2011. Guy Berger, Rhodes University, South Africa

2. Coming up • Media freedom in digital era • Traditional limits on freedom • New medium, new standards? *** • States as players, not only referees • Intermediaries and limiting speech *** • Case study: xenophobia online • Standards re: limits on xenophobic speech • Assessing the issues *** • Conclusion: a different world.

3. Media freedom in digital era 1

4. International Covenant on Civil and Political Rights • Everyone shall have the right to freedom of expression; this right shall include the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. (my italics) • In this inflection, media freedom is simply an extended technical dimension of individual free speech. • This freedom is thus not limited to institutions, but includes, for instance, all bloggers, USG-rs, tweeters…

5. Proviso • Freedoms are the norm; limitations are the exception. • Not all limitations of freedom of speech and of the media are violations of the right. • There are accepted limitations that do not amount to violations. • Distinguishing the two is a major site of contestation… around interpretations of where limitationbecomes violation.

6. Legitimate limits on freedom 2

7. Limited limitations (1) - legal • WHAT KIND OF CONTENT CAN BE LIMITED: Only that which jeopardises: (i) the rights or reputations of others, or (ii) national security or public order, or public health or morals (principle of legitimacy); Examples of types of speech where other rights (dignity, safety, equality) always trump free speech : • Defamation without public interest justification; • Child pornography; • Direct and public incitement to violence (or harm); • Hate speech (not always linked to violent incitement).

8. Limited limitations (2) - legal • HOW THIS LIMITATION HAS TO BE DONE: • It must be provided by law (principles of predictability and transparency); • It must be proven as necessary and as the least restrictive means required to achieve the purported aim (principles of necessity and proportionality). • It must be independently reviewable (principle of administrative justice). • WHERE: • Public media, not private communications • Broadcasting historically attracts additional kinds of limits more than print.

9. Voluntary limitations (2) - ethical • Extra voluntary limits pertains to media as institution with self-proclaimed public mission. • Onora O’Neil: journalists thus profess to be “other regarding”. • They set themselves up as subscribing to special standards (within the law). • Law provides minimum base, ethics are higher. • Self-regulation is widely seen as best method… • Issues: Self-censorship? ‘Implementing’ law?

10. But often, limitations are unlimited • Many States restrict, control, manipulate and censor content disseminated via the Internet without legal basis, or on the basis of broad and ambiguous laws; without a legitimatepurpose; and/or in a manner that is clearly unnecessaryand/or disproportionateto achieve the intended aim. • SA Facebook case: crimen injuria arrest (a case of over-extension of pre-digital common law)?

11. Private entities’ performance? • Dereliction of duty by private entities? • May 2011: Argentine court had to order Google to eliminate anti-Semitic search suggestions. • June 2011: Belgrade court convicted a newspaper for permitting and facilitating anti-gay comments by users on its website. • April 2011: Malta court convicted an individual for hatred for his comments on a newspaper website.

12. Private entities violating limits? • Questionable limitations: • Cf: Amazon, Paypal & wikileaks: • Was this justifiedin terms of international standards? • What pertains in S-African private practices? • Cell companies blocked OuToilet in total – by what criteria and process? • Press Council of SA ignores online: good or bad? • ISPA, Waspa, WAPA?

13. Problematic limitations taking place Globally, contra international standards, there is: • Blocking of sites that is arbitrary. • Unnecessary, disproportionate, limitation. • Collateral censorship through imprecise targeting – akin to the historic banning of “Black Beauty” under apartheid. • Hidden character of much online limitation. • Net neutrality issues? Commercial limits on speech availability via walled gardens?

14. Summing up Media freedom on the internet has to take account of: • The general right to free speech relevant to all media platforms, and simultaneously… • Legitimate limitations of this speech. And, the application of both aspects to online: • Individuals • Institutions: state, mass media, intermediaries.

15. Yet, is the medium different? 3

16. Net as unique cos of its access? • Should defamation online attract a different standard of limitation? • “because of the ability of the individual concerned to exercise his/her right of reply instantly to restore the harm caused, the types of sanctions that are applied to offline defamation may be unnecessary or disproportionate” - UN Special Rapporteur

17. Net as unique cos of user control? • Should protection of children online attract a different standard of limitation? • “the availability of software filters that parents and school authorities can use renders action by the Government such as blocking less necessary and difficult to justify” - Rapporteur • In other words, Net is seen as pull-driven (not intrusive push), so end-user decides on self-regulation limitation of speech.

18. Net as unique cos of licencing? • Broadcast licensing’s rationale of “limited frequencies … cannot be justified in the case of the Internet” – UN Special Rapporteur. • BUT: In Africa, most Internet is wireless (local loop) • Govts could say: Limits of frequency spectrum justify broadcast regulation – so why not filtering & blocking of wireless Net? • Are there limited points of entry that would make a wireless ISP akin to a licensed broadcaster?

19. And social licensing rationale? For many governments, limiting speech in broadcasting is justified for social reasons: • Perceived special “power” of audio & video: • Thus, Govts justify a “need” to limit access to ensure this “instrument” is not abused (eg. No radio licences in SA for political parties); • Thus Govts say they “need” to direct speech on this “tool” for ‘developmental obligations’, • Thus, Govts make a case to have “public” broadcaster protection and/or controls.

20. Is Net-relayed “broadcast” unique? • Historically, broadcasting has been limited re: • Public service and local content obligations; • Election coverage requirements & limitations; • Scheduling (watershed hour). • Cos Broadband availability enables video and audio content (incl. “broadcast” content) – this could well attract the same social rationale for limitation of speech. • So, you would then have “medium-creep”…

21. In short • Is the Net so unique as a medium that this will or couldjustify a differential speech-limit dispensation to other media, in regard to: • Mass access to publishing? • End-user decision-making? • Audio and video content carrying capacity? • Practicalities of enforcing *any* limits may be hard or even impossible, yet the bigger question is the principle of whether a lighter-touch regime for limits is warranted.

22. States as players, not only referees 4

23. Cyber attacks • Limits that illegitimately exclude or criminalise some content, and so unwarrantedly limit media freedom online, is one thing… • A State becoming a direct cyber-participant is another: • States are sponsoring trolls and praise-singers; • Chinese ISPs are enlisted for surveillance; • Cyber attacks: hacking and DDOS; • ‘Kill’ switches operated – as in Egypt.

24. State’s weakening other rights • Rights to privacy and anonymity underpin free speech. Unjustifiable limitations by governments translates into an unjustified limit on free speech and media freedom. • Insufficient or inadequate data protection laws and practices in many States fail to stipulate who is allowed to access personal data, what it can be used for, how it should be stored, and for how long. – UN Rapporteur

25. Less unsavoury playing • Because it is impractical to ‘port’ specific broadcast regulatory rationales to Net: • States can incentivise rather than control (eg. seeking to promote local content). • Promote Internet literacy, if it is preferable for end-users to screen, not someone prior. • Whether by govts (or self-regulatory bodies), all Net interventions should be legitimate re: • Purpose, proportionality, non-arbitrary; • Having a transparent process and appeal system.

26. Intermediaries and limiting speech 5

27. Who and what… • Internet service providers, search engines, blogging services, social media, and online publishers allowing UGC and user comments. • Numbers overshadow govts quantitatively. • Typically, intermediaries are not liable for illegal content provided they take some steps to limit certain content. • This may be filtering, removing or blocking.

28. Self-regulation debate • “Notice-and-takedown” practiceprotects intermediaries from liability, provided that they remove “unlawful” material when they are made aware of its existence. • Rapporteur’s concern: • censorship measures should never be delegated or forced upon a private entity, and • no one should be held liable for Net content for which they are not the author.

29. Keeping freedom the norm • Private sector should not assist or be complicit in violations of the right to freedom of expression. • Only implement restrictions to these rights after judicial intervention - Rapporteur • OR – my view: within a clear framework of self-regulation that meets the standards for legitimate limitations • Global Network Initiative developing position.

30. Conditions needed • Again, we need to ensure that the Net restrictions by private entities or self-regulatory bodies are also legitimate in terms of: • Purpose, proportionality, non-arbitrary • Having a transparent process and appeal system

31. Case study: xenophobia online 6

32. Context: May-June 2008 • “SA insiders” versus “invading barbarians” • An estimated 62 people killed • 30 000 displaced (UN Report, 2008) • TV coverage of flames and fleeing people – could have encouraged copycat violence. • What’s the responsibility of gatekeepers? • Especially online? • A case study: (research by Lwanga Mwilu)

33. What some SA citizens said online ‘ It’s reached a point whereby we live amongst foreigners, and not them living amongst us. The poorest of the poor are taking a stand against the influx of illegal foreigners…It is the right thing to do. Listen to what we’re telling you: get out, we don’t need 15 million foreigners The illegals must go, or they won’t receive decent burials. I don’t think RSA needs the presence of poor parasitic refugees roaming around. ‘

34. More web views ‘ The xenophobes are doing what the government should be doing: evicting the illegals and making sure they don’t come back. The means they choose to do this are unfortunate, but what else do they have? It’s a shame they must resort to violence and illegal means to meet a legal objective. A man fights for his rights with the weapons he has. ‘

35. Further online comments As for the so-called Xenophobes , they are fine in my books as they are merely doing in a more drastic and desperate manner what government should have done long ago. The foreigners that are here to cause trouble like the infamous Nigerians in Joburg. They need to go, they should get beaten up. Poor innocent refugees, people that are running from danger at home needn’t be treated like this. ‘ ‘

36. Negative rhetorical phrases ‘ ‘Huge surge of border jumpers’, ‘flood of people’, ‘an unstoppable Tsunami, ‘influx of foreigners’, ‘flood of immigrants pouring into the country’, ‘foreigners in their hundreds and thousands flow in and out of communities’. • The rhetoric promotes panic and decisive action to stop the problem. • It constructs foreign residents as a ‘problem’, thus justifying and even encouraging action against them as a solution. ‘

37. Further analysis • In other words, the real barbaric behaviour of violent coercion against foreigners is legitimised, • and the victims are portrayed as deserving of their fate. • Shouldn’t it have been banned?

38. Who were the gatekeepers who let these comments through? • Mail & Guardian: leading investigative weekly • Daily website and bloggers-by-invitation section - Thoughtleader • Site practices moderation: of both blogs and comments. • The site’s aim is to be a “mature and thought-provoking environment”.

39. Standards re: limits on xenophobia 7

40. Standards • ICCPR (Article 20) explicitly outlaws: Advocacy of national, racial, religious hatred … That constitutes incitement to: discrimination, hostility or violence. • ACHPR: obliges member states to outlaw expression that advocates (inter alia) nationalhatred that is incitement to discriminate, hostility or violence.

41. Xenophobic speech • Covers all hate speech that is based on nationality grounds: i.e. incitement to discrimination, hostility and violence against foreigners. • Plus, some anti-foreigner speech which does not have the incitement aspect of hate speech can still also violate rights to equality (non-discrimination) … and to dignity. • i.e. Xenophobic speech ranges wider than hate speech in violating rights, and attracts limitation.

42. SA law • SA Constitution provisions: • Hate speech can be limited (incitement to violence against a group). • Expression has to be balanced against rights to dignity and equality. • Unfair discrimination prohibited – including on grounds of birth. • Equality Act bans speech that is intentionally: • Hurtful, inciting harm, promoting hatred.

43. Thoughtleader’s policy framework • Readers’ comment policy • Acceptable use policy • SA Press Code of Ethics • Internet Service Providers’ code of conduct • SA Constitution • SA Equality Act. • Most of these stress free expression rights, but also responsibilities and limits on hate speech. • Tho, no explicit reference to xenophobic speech.

44. Comments qualify for limitation • Constructions of foreigners as the “threatening other” made their expulsion seem necessary and acceptable. • The comments advocated hatred, hostility, incitement to violence, and unfair discrimination against foreign residents. • They also undermined the rights to dignityof foreign residents. • i.e. the comments violated the site’s policies.

45. Moderators’ reflections: Unfair stereotyping based on nationality should not have been allowed through. I would not have allowed this comment through. The comment should have been edited to remove some of the offensive content. Moderation is done under serious time and personnel constraints. ‘ ‘

46. More responses by moderators: A particular comment may agree with the action taken by local South Africans during the xenophobia attacks, but it falls short of advocating national hatred. In many cases, biased comments by “extremists” were similarly tempered by reactionfrom other commentators. The moderator may have let this pass so as to see if other commentators would take him on, which they did. ‘ ‘

47. Assessing the issues 8

48. Pro-restriction views • Context was one of active violence. • The comments could have diminished individual readers’ concerns and action against the violence. • Suppressing the comments would nothave caused serious harm to free speech. • Allowing the comments may have stimulated public deliberation and rebuttal, but it still does undermine rights. • The individual items make a mockery of the policy and the law.

49. Views against restriction • Offending comments were only a fraction of the 682 comments over May 13- June 13, 2008. • Offending speech was not a cause of the violence and was unlikely to have inflamed the actual perpetrators who are not online… • No reader “reported abuse” as regards the comments, thereby letting them stand. • There was counter response from some, and so ongoing debate around the xenophobic speech.

50. A bigger issue: • Was there a need to allow unfettered comments in a common public sphere, rather than drive them ‘out of sight’ into an echo-chamber? • OR: Wasn’t news reportage (and the actual events) enough to illustrate xenophobic views? • Could there have been a way to tone down or edit overly problematic parts (eg. replace with asterisks), without shielding readers from such offensive opinion?