Deputy Minister of Home Affairs Malusi Gigaba is contemplating a new law to ban online pornography, a development that has serious implications for free speech and the media and has been likened to an attempt to emulate the so-called “Great Firewall of China” that seeks to filter out content Beijing finds undesirable.
Gigaba last month received a copy of an Internet and Cellphone Pornography Bill drafted by the Justice Alliance of South Africa (JASA), a christian moral pressure group. He told them the Law Reform Commission, an agency of the justice department, has already been asked to provide advice on the possibility of legislating against pornography on the Internet, television and mobile phones.
A Home Affairs media statement says the United Arab Emirates and Yemen already have legislation in this regard and Australia and New Zealand “are currently seeking to do so”.
The Internet and Cellphone Pornography Bill proposes that pornography be filtered out at the tier one service providers to avoid it entering the country. The Bill is aimed at the total ban of pornography on internet and mobile phones. The current legislation, particularly the Film and Publication Act, prohibits child pornography. The proposed Internet and Cellphone Pornography Bill provides for the total ban of pornography on these electronic channels “using the wider definition of pornography already available in the Sexual Offence Act.”
Home Affairs says this would be constitutional as SA’s supreme law says “A child’s best interests are of paramount importance in every matter concerning the child.” Other rights such as freedom of expression must be weighed against the interests of children. “Cars are already provided with brakes and seatbelts, it is not an extra that consumers have to pay for. There is no reason why the Internet should be provided without the necessary restrictive mechanisms built into it,” Gigaba said.
“There are sufficient decisions in the Constitutional Court when it comes to the issue of pornography and children, that the rights of children trumps the right to freedom and privacy,” he said. “The constitution recognises that parents have an obligation to protect their children and where they fail its becomes the state’s obligation.” Gigaba has long expressed his concern about a purported link between pornography and child and women abuse. Academic research on the subject has been inconclusive.
JASA director John Smyth SC says there is sufficient technical knowledge for service providers to implement controls. But World Wide Worx CE and Internet guru Arthur Goldstuck questions this. “The requirements of filtering out any specific type of communication are massive,” he told the Business Day. “Its only technically and practically feasible in a totalitarian environment where the State has all the control over telecommunications.”
William Bird of Media Monitoring Africa, which looks in particular at children’s representation in media, was also critical of the proposal, saying while the intentions were sound it would be a step backwards. It also did not take into account peer to peer transmission of pornographic material via mediums such as Mixit, he said. “It would be more beneficial to create space for a forum to discuss and engage with pornographic material critically and allow children to express why it makes them feel uncomfortable and what stereotypes are being depicted,” he said. He said Childline had a lot of success on Mixit by creating an open forum where children can talk. Bird said China has spent millions trying to control the internet and not been successful.
ITWeb reports the JASA “Bill” states that any ISP or mobile operator that distributes, or allows the distribution of pornography will be guilty of an offence and can be prosecuted. These companies and their directors can face a fine, or a period of imprisonment of up to five years. ISPs were reluctant to comment on the Bill save to say it had no standing.
WWW Strategy MD Steven Ambrose told ITWeb the proposed Bill was ludicrous and would be exceptionally difficult for local ISPs and mobile operators to implement. “It is ill-conceived, and without a Great Wall of China set-up, completely impossible to pull off,” he adds. “It’s a nice notion, but completely narrow-minded.” The JASA proposal could also mean a hefty financial outlay for service providers as the draft indicates the cost will be carried by them.
It has also imposed a double standard, since bricks-and-mortar adult shops will still be allowed to distribute pornography at their leisure. “Some ask why Internet pornography is worse than print, DVD or TV? The answer is found in the three As: Anonymity, Availability and Accessibility. It is easy for a child or teenager to view without anybody knowing. In the real world, pornography is kept at a safe distance from children. In the online world, pornographic sites are often parked deliberately next door to educational sites, often with names almost identical,” the draft explains.
Ambrose believes the only way to institute this law will be to implement a massive lockdown on the South African Internet, much like China and Dubai have done. Residents in Dubai have also noted that banned content has often made its way through the barriers, despite the comprehensive efforts and financial outlay to keep it out. In the case of Australia, analysts and security experts in the country believe it will not work.