South Africa’s recent opposition to a United Nations Human Rights Council (HRC)
Resolution on “the promotion, protection and enjoyment of human rights on the Internet” is
garnering international press attention, and is being viewed as yet further evidence of
government’s intention to bind domestic free speech in black tape. South Africa joined China
and Russian in challenging the resolution.
The resolution reaffirms that “the same rights that people have offline must also be protected
online”, a fundamental principle that has formed the basis of two previous HRC resolutions
adopted by consensus. The resolution furthermore condemns “measures to intentionally
prevent or disrupt access to or dissemination of information online”.
Ncumisa Notutela, South Africa’s Deputy Permanent Representative to the UN, claimed that
the Resolution was inconsistent with South Africa’s Constitution, which provides for the
rights of expression and opinion only to the extent that they are not lawfully limited (e.g.
prohibitions against hate speech and incitement to violence). According to Notutela, the
resolution both omitted important provisions on permissible limitations and prohibition of hate
speech and called for an absolute right to freedom of expression online.
Pria Chetty, Director of EndCode, and member of the Regulatory Affairs Council of the IAB
SA commented that the IAB SA is particularly concerned with South Africa’s position on the
resolution - particularly in light of recent domestic legal and regulatory developments which
point to a clear move to increased censorship across the board, and not towards
liberalisation in line with most modern democracies. The South African “Secrecy Bill” was
followed by other distinct black tape regulatory papers, including the Films and Publications
Amendment Bill, the Film and Publication Board’s Draft Online Regulation Policy and the
Cybercrimes and Cybersecurity Bill, each of which presents significant negative implications
for freedom of speech. Recent media coverage of mounting pressure from the SABC on
journalists to “ban” certain topics from coverage certainly supports our growing concern.
Andrew Allison, Head of the Regulatory Affairs Council of the IAB SA added that the IAB SA
remains steadfast in its commitment to defend and champion free speech, both online and
offline. Whilst we recognise that no right or freedom is absolute, and that expression needs
to be balanced with the rights to privacy and dignity, we believe that successful democracy is
critically dependent on the free flow of beliefs, ideas and opinions, and that censorship and
oppression can only lead to democratic decline and, ultimately, failure.
Can the concerns raised by the Notutela be countered?
The resolution refers to international covenants which provide for limitations on the freedom
of expression. Moreover, Article 11 of the resolution specifically refers to combating
advocacy of hatred that constitutes incitement to discrimination or violence on the Internet,
including by promoting tolerance and dialogue.
Why does the opposition to the resolution matter?
UN officials have pointed out that the resolution affirms the principle of the right to freedom
of opinion and expression “as an essential foundation of the Information Society”.
Certainly in South Africa, in the context of emerging regulatory attitudes - defending this
principle and procuring equal legal treatment of citizens for conduct online and offline, as the
UN resolution intends is going to be critical.