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Let’s start with the good news. We have a Convergence Bill. It has good intentions. It aims to promote the growth, diversity and the liberalisation of the communications industry. It aims to promote much-needed black empowerment in the sector. And it is generally an admirable attempt by government to ensure the laws of the country keep up with the supersonic pace of technological advancement.
In a nutshell “convergence” is the techno buzzword that refers to the increasing overlap between communications technologies such as television, radio, websites and cellphones. Today we can listen to the radio or watch video over the internet; cellphones and television can send e-mail; cellphones can receive radio and television broadcasts; and laptops can act as cellphones or receive radio waves.
But this is where the good news ends and the bad starts.
One of the more unsavoury aspects of the Convergence Bill is its specific reference to “online publishing” and “information services” and its apparent attempt to regulate website publishing in South Africa. This potentially means that if you own a website, you will need a licence. Outspoken Cape Town attorneys Buys Inc. is leading a campaign against this, saying it unnecessarily restricts the use of the internet. According to the crusading attorneys, those operating without licences could face fines from the regulator Icasa “as high as R500,000 or R10,000 per day”.
Now that’s quite a bit of money if you’re an online publisher. It’s an unthinkable, ridiculous sum of money for the old lady across the street who runs her own backyard website, publishing her favourite cake recipes and poetry. As shocking as this may sounds, experts doubt it will ever come to this and some have criticised Buys for being “alarmist”.
But we should still make a fuss. Imposing licence requirements on websites would be a severe blow and stifle the development of a (relatively speaking) fledgling industry. Online publishers typically publish their content at a lower cost than print or television. There are no printing or broadcast fees, so it is an affordable option for smaller publishers. It’s why they are in the web business in the first place. The bill, in its current state, therefore appears to fly in the face of one of the most fundamental features of the internet.
Nobody is saying that regulation and licensing is a bad thing. But is it really necessary to regulate online publishing? What for?
Surely there is no need to regulate a medium that does not have the limitations of frequency (space) of the broadcast environment. Moreover, print newspapers don’t need a license to publish, so why do online newspapers? In some cases online newspapers publish similar, if not the same content, as their print counterparts. So why should the identical content be regulated in one environment and not the other?
Representative bodies from the online publishing world, the Online Publisher’s Association (OPA) and the online editors’ arm of the South African National Editors Forum (Sanef), have rightly criticised the bill as an unconstitutional limitation on the right to freedom of expression.
The OPA’s submission to the government goes as far as to say that the bill may cause online publishers to move their businesses outside of South Africa. It says the bill runs counter to the approach adopted in other democracies and could dent South Africa’s credibility.
But as alarming as some of the aspects of the bill may be, there may not be a need for too much wailing and gnashing of teeth. Many legal experts say that there is “no way” the bill will make it to law in its current state, and that it still has to face up to parliament.
It’s supposed to be an ultra-modern law that keeps up with the changing needs of technology and society. It’s somewhat of an irony then, because in its current state it appears to achieve just the opposite of that.