1 PRESENTATION ON THE CONVERGENCE BILL TO THE PARLIAMENTARY PORTFOLIO COMMITTEE ON COMMUNICATIONS

2 PRINT MEDIA SA TEAM  Trevor Ncube  President, Print Media SA  Chief Executive Officer, Mail & Guardian  Connie Molusi  Chief Executive Officer, Johnnic Communications  Salie de Swardt  Director, Media 24  Ivan Fynn  Editor, Cape Argus & Weekend Argus, Independent Newspapers  Natasha Volans  General Manager, Print Media SA  Janet MacKenzie  Legal advisor to Print Media SA

3 PRINT MEDIA SA  Non-Profit Organisation  Represents the interests of a broad range of media publications –  Daily, weekly and community newspapers  Consumer magazines  Trade magazines  Technical magazines  Professional and specialist magazines

4 PRINT MEDIA SA  Represents the collective interests of its members  Negotiations with representatives in advertising, marketing, printing and paper industries;  Campaigns that promote print media;  Industry awards;  Discussions and negotiations with Government on matters of common interest.

5 CONVERGENCE Communications Network (cable, optic fibre, satellite, microwave, VSAT, infrared etc.) Broadcasting Multimedia Services Public Switched Telecommuni cations Services Mobile Cellular Telecomms Services Value Added Network Services End User Communication Services PC TV CELL PHONE GSM & DVB-H/ DAB RADIO DVB DECODER

6 CONVERGENCE UNDER THE BILL End User Communication Services Communications Services (PSTS, multimedia, cellular, VANS, etc. Broadcasting Services Communications Network (cable, optic fibre, satellite, microwave, VSAT, Infrared, etc.) No licensing required Licensing required TV RADIO DVB DECODER TV RADIO DVB DECODER PC GSM & DVB-H/DAB CELL PHONE

7 Content Service Provision of content Exercise of editorial control over content provided over communications network (i.e. online publish and information services) ContentSound, text, still or moving picture or other audio visual representation but excludes content in private communications between consumers Broadcasting ServiceBroadcasting of television or sound to public, sections of public and subscribers but excludes pure text and multimedia services BroadcastingUnidirectional communications service intended for public, sections of the public or subscribers ApplicationsTechnological manipulation, storage, retrieval, distribution and creation of content Communications ServicesExcludes content services CommunicationsExcludes content services Communications Network ServiceIncludes the provision of infrastructure to a person providing content services Communications NetworkIncludes a network used for content services INFRASTRUCTUREINFRASTRUCTURE SERVICESSERVICES CONVERGENCE DEFINITIONS TREATMENT OF CONTENT

8 ISSUES PERTAINING TO INCLUSION OF CONTENT  A number of issues arise as a result of the inclusion of content and content services in the Bill –  Technical difficulties  Inadvertent licensing of content -  Policy and regulatory concerns  Constitutional concerns  Negative economic and investment effects

9 TECHNICAL DIFFICULTIES Applications Technological manipulation, storage, retrieval, distribution and creation of content but excluded Communications Service Exclusion of content makes it impossible to transmit the service over infrastructure Communications Network Inclusion of content SERVICESSERVICES INFRASTUCTUREINFRASTUCTURE

10 POLICY AND REGULATORY CONCERNS  Other content services must be distinguished from broadcasting services –  Broadcasting  Distributed to the public at large  Controlled by the broadcaster  Distributed over the frequency spectrum – a scarce resource  Online Content Provision  Posted and removed on a daily basis  Private in nature  Content selected by the end user

11 CONSTITUTIONAL DIFFICULTIES WITH THE LICENSING OF CONTENT  Any attempt to licence online publishing and information services will be contrary to section 16 of the Constitution–  the right to freedom of the press and other media  the right to receive and impart information or ideas  The Internet is a unique medium which gives effect to one of the rationales underpinning the right to freedom of expression, namely the right to self actualisation  Licensing of online content and other information services will amount to a prior restraint which our courts have found to be unconstitutional due to their chilling effects on free speech

12 ECONOMIC AND INVESTOR CONFIDENCE CONCERNS  Licensing of online content will have the effect that service providers host their service overseas -  Availability of local content will diminish  The costs of accessing local content will increase as a result of having to traverse international networks to retrieve content  The growth of South Africa’s web development, online content and other associated industries will be retarded  Disincentive to international investment

13 CURRENT REGULATION OF UNDESIRABLE CONTENT  Unlawful or undesirable content is already subject to appropriate regulation  The Constitution of the Republic of South Africa 108 of 1996  The Promotion of Equality and Prevention of Unfair Discrimination Act No. 4 of 2000  Electronic Communications and Transactions Act 25 of 2002  Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002  Films and Publications Act 65 of 1996  National Gambling Act 7 of 2004  Self regulatory mechanisms

14 THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA 108 OF 1996  Certain forms of speech not protected  Propaganda for war  Incitement of imminent violence  Advocacy of hatred based on race, ethnicity, gender or religion and that constitutes incitement to cause harm  The right to privacy of one’s person, home, property, possessions and communications is guaranteed under the Constitution  The Law Commission is working on privacy and data protection legislation

15 THE PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION ACT NO. 4 OF 2000  The object of the statute is to prevent and prohibit unfair discrimination and harassment and to promote equality  Section 10 to the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 provides that: - “No person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to  be hurtful;  be harmful or to incite harm;  promote or propagate hatred.”

16 ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT 25 OF 2002  The object of the statute is to provide for the facilitation and regulation of electronic communications  The Act details the principles to be followed when collecting personal information  Affords protection to individuals in respect of the sale of personal information for commercial purposes  Deals with the liability of telecommunication service providers in respect of content on the Internet and details the requirements for ‘take down’ notices in respect of unlawful content

17 REGULATION OF INTERCEPTION OF COMMUNICATIONS AND PROVISION OF COMMUNICATION- RELATED INFORMATION ACT 70 OF 2002  The object of the Act is to provide for the monitoring and interception of communications and the provision of such communications to law enforcement agencies  Telecommunication service licensees are required to ensure that their systems are capable of intercepting and storing communications and to hand the same over to law enforcement agencies when directed

18 FILMS AND PUBLICATIONS ACT 65 OF 1996  “Publication” is defined broadly and includes “any message or communication, including visual presentation, placed on the Internet”  Section 28 makes it an offence to knowingly distribute a visual presentation or a description of child pornography, explicit violent sexual conduct, bestiality, explicit sexual conduct which degrades a person and which constitutes incitement to cause harm or the explicit infliction of or explicit effect of extreme violence which causes incitement to cause harm  Section 29 makes it an offence to knowingly distribute a publication which amounts to propaganda for war, incites to imminent violence or advocates hatred that is based on race, ethnicity, gender or religion, and which constitutes incitement to cause harm

19 NATIONAL GAMBLING ACT 7 OF 2004 AND SELF REGULATORY MECHANISMS  National Gambling Act  Prohibits Internet gambling and the advertising of Internet gambling until such time as a regulatory framework for Internet gambling is put in place  Self regulatory mechanisms  Rating and labelling services  Use of filtering software to filter out harmful or objectionable content as a means of protecting children on the Internet

20 CONCLUSION  To the extent that valid concerns exist with regard to unlawful or undesirable content, it is submitted that these concerns are currently catered for in terms of existing legislation  Due to the difficulties associated with the inclusion of content and content services, PMSA believes that all references to content and content services must be removed