Tuesday, 18 December 2012

Criminal Liability for Comments on Social Media

In English football, Manchester United playing Manchester City is one of the big games of the year. Fans and football media go into overdrive (as a Liverpool fan, I state this fact with a tinge of jealousy).  During the match in December this year, star United defender Rio Ferdianad was struck on the eye with a coin:

criminal defamation
Rio Ferdinand struck in the eye with coin during match with Manchester City in December 2012

His eye was not the only target for emotional fans.  A 15 year old boy was arrested for racially abusive tweets sent (during the match) to Rio Ferdinand on the microblogging site Twitter.  The following statement was made by the Greater Machester Police:

 “A 15-year-old boy was arrested on suspicion of a racially aggravated public order offence on the evening of Monday 10 December 2012. He has been bailed pending further inquiries.

So, this begs the question; what is a racially aggrevatated public order offence? According to the Crown Prosecution Service (CPS) website, an offence is racially aggrevated where the offender shows or is driven by racial hostility where:

  • At the time of committing the offence, or immediately before or after doing so, the offender demonstrates hostility towards the victim based on the victim's membership (or presumed membership) of a racial group;
  • the offence is motivated (wholly or partly) by hostility towards members of a racial group based on their membership of that group.

The CPS lists a public order offence as being capable of being racially aggravated. While there is no set norm for a social media crime such as this, recent similar incidents provide guidance -  a recent racist outburst on Twitter by a 21-year-old student in Swansea earned the student a sentence of 56 days jail time for a racially aggravated public order offence. Almost exactly a year ago, in an incident widely circulated on YouTube, a woman was arrested and refused bail after a racist rant on a tram ride.

Why are these offenses not prosecuted under criminal defamation? Well, because it doesn’t exist in some parts of the world anymore. Criminal defamation was abolished in the United Kingdom in 2009 and this type of social media criminal offence is now dealt with by reference to, amongst others, the Public Order Act and the Crime and Disorder Act.

What about the rest of the globe? Criminal defamation is alive and kicking.  Consequently, offences such as the racist rant on social media may well fall into the category of criminal defamation. Leading academic JR Milton defines criminal defamation as the unlawful and intentional publication of matter concerning another which tends to injure his reputation. For those interested in more detail, a non profit company defending freedom of expression rights (article19.org), lists several maps showing all laws relating to civil and criminal defamation.

In defamation law globally, there is usually a distinction made between civil defamation and criminal defamation.  The former is said to be easier to prove and satisfy while the latter is typically used in more serious defamatory situations and has a higher onus of proof. 

So, if a similar outburst took place within South Afirca (or a jurisdiction that has criminal defamation on the books) what would the potential outcome be?

In the 2008 South African matter of Hoho v The State, a bench of five judges on the Supreme Court of Appeals (SCA) were asked to consider the relevance of criminal defamation.  Keep it on the books or put it to pasture? In the end, after weighing up freedom of expression versus human dignity, the SCA decided that criminal defamation has not been abrogated by disuse and is still consonant with the South African constitution.

In a fascinating judgment that deals comprehensively with criminal defamation, it was ultimately concluded that there is still place for defamation in the body of criminal law. Although I do not believe that criminal law should always resolve racist outbursts (we should focus on the root cause), the onus of proof required to secure a criminal conviction will ensure that the offence remains one that is used sporadically at best. 

In addition to criminal defamation, a racist outburst on Twitter or social media could be dealt with in South African criminal law by crimen iniuria, which is the unlawful and intentional impairment of a person’s dignity.

While it is clear that certain jurisdictions are moving away from criminal defamation and more towards specific offences, criminal sanctions for certain categories of speech are available world wide. Many in our global village still strongly persecute those who make the wrong statement on a social media platform.  By way of example, a man was arrested in 2010 for calling the president of Lebanon a hypocrite and failure on Facebook.  In Egypt and China criminal sanctions for social media speech against the regime are common place.

Although in jurisdictions such as South Africa and the United Kingdom one considers themselves immune to criminal sanctions on social media; and living in a fairly liberal, free speech age; there are certain types of speech that no matter what the occasion or platform, what you type may have the potential to land you in prison...

Tuesday, 11 December 2012

WCIT – internet regulation needs input

As discussed recently, a United Nations mandated technology unit (ITU) is in the midst of revising a 24 year old telecommunications treaty during a 12 day conference in Dubai.  The delegates who will make these critical decisions, and inform policy going forward, are government regulators from around the world.   Although spin doctors will do their best to say all views (civil society, corporate interests) are on the table, this is not so.  In fact, the largest internet company in the world, Google, is campaigning for a free and open internet stating that “some governments want to use a closed-door meeting in December to increase censorship and regulate the internet”.

internet freedom
Internet freedom in a decades time?
Moreover, global campaigning group, Avaaz, launched a global campaign on 7 December 2012 with similar goals to Google.  They state:

As citizens of the world and Internet users, we call on you to reject any changes to current Internet regulations that would weaken or alter the free and open nature of the Internet…”

This movement is aided by the fact that computer scientist Vincent Cerf (referred to as the father of the internet) has warned of the potential threat the WCIT-12 poses to internet freedom. As stated on CNN’s website, the WCIT-12 could push up internet access costs, restrict free speech and stunt future growth.  A further leaked WCIT-12 PDF document outlines proposals by a bloc of member states including Russia, UAE, China, Saudi Arabia, Algeria, Sudan and Egypt.  The proposal seeks to give governments the sole authority to regulate the internet, impose tariffs and generally looks to redefine the internet playing field. An excerpt from the proposal reads as follows:

Member States shall have the sovereign right to establish and implement public policy, including international policy, on matters of Internet governance, and to regulate the national Internet segment, as well as the activities within their territory of operating agencies…”

This proposal caused a storm of controversy and reports by TechWeek Europe confirmed that the proposal has been taken “off the table” with various parties now claiming the document was never officially put forward.   

A free and open internet has given the world an entirely novel communications and business platform – we have seen nothing like it since perhaps the invention of the telephone.  It has enabled politicians to effectively communicate with potential voters, enabled an online world wide library where a plethora of information and how-tos are freely available, created an environment where a variety of artists are able to put themselves in the shop-window, made it possible for millions of people to generate unique revenue, develop themselves and generally communicate with and be a part of the global planet we find ourselves in.

While some governments argue that the internet requires a new global set of rules to assist the developing world, the free market approach, as noted by Vincent Cerf, is the most viable model to sustain growth and development. Clearly, this argument suits Cerf (Google employee) and Google down to the ground.  After all, Google’s business model is based on gathering all the freely available information and presenting it to us.  If government regulators take this task, Google starts looking on shaky ground with its Search product.  That aside, Google, Cerf and others put forward convincing philosophical and economic reasons why the internet must be free and open.

The United Nations, along with formalizing a regulation base, basically wants to open the internet up to developing countries and increase the availability of the internet worldwide.  Laudable. However, doing so at the expense of further growth and development of the internet would be unwise at best.  If there is to be a treaty agreed upon it must remain technology neutral – what is standard today will be prehistoric in a decades time – and it must seek to balance the needs of those already using and developing the internet.

Equally important is freedom of expression.  The internet, in my view, thrives because of this (notwithstanding the fact that 21 countries are guilty of “pervasive” or “substantial” internet filtering). The starting point must always be “publish and look at what you like” but “face the consequences” if it is deemed immoral or unlawful at the time. 

The ITU should be looking forward and including the engineers, designers and business people who made this machine. They understand it because they built it.  The WCIT-12 is not the forum for a discussion where decisions made now may affect the internet for generations to come. That forum must include interested parties from all sectors.  Hopefully, the ITU will concede that the approach used at WCIT-12 was, in hindsight, not the best one.  Hopefully, they will have the graciousness to realize that all interested parties should be a part of this – no one owns the internet, and certainly not 193 government regulators….

If you haven’t already, take 2 minutes of your time to sign Google’s petition or the Avaaz.org petition.

A free and open world depends on a free and open Internet. Governments alone, working behind closed doors, should not direct its future. The billions of people around the globe who use the Internet should have a voice". Google, 2012.

Political interference in the Media

Yet again, the South African Broadcasting Corporation (SABC) is facing accusations of political interference.  Controversy and political interference is nothing new for the South African state owned broadcaster.  In 1997, it emerged during the Truth and Reconciliation Commission that the SABC actively promoted the apartheid regime.

Since the birth of South Africa’s democracy, the SABC has faced questions around a new African National Congress (ANC) political bias.  These fears have resurfaced with an anonymous letter accusing the broadcaster of taking journalists to task for not airing enough pro-ANC and pro Jacob Zuma material. 

According to TimesLive (and repeated on numerous other news websites), the accusations are as follows:

Reporters have been taken to task for not showing enough visual footage of

Political reporters have been removed from their jobs without adequate reason being given or due process being followed;

Current affairs producers and presenters have been warned that they are too negative about the government and have been advised that they are not defending Zuma enough;

Stories involving former ANC Youth League president Julius Malema had been "treated differently from others”;

Pulling a current affairs show dealing with the presidential elections;

The climate of uncertainty and fear has created a state of paranoia in both the television and radio news rooms and has lowered morale.

The letter was apparently addressed to the SABC board and to acting head of news, Jimi Matthews. It was unsigned for fear or repercussions but was reportedly written by SABC reporters, producers and presenters. 

This follows last week’s news that the South African media watchdog, the Independent Communications Authority of South Africa (ICASA), will be investigating the SABC over the alleged “blacklisting” of certain journalists from Metro FM.  Current head of news and current affairs, Phil Molefe, was suspended earlier this year over “editorial policies”.  There have been reports that the suspension was politically motivated; Molefe is currently contesting the suspension, on the basis of political motivation, in the Johannesburg High Court.

The SABC appears to be in some strife. Earlier in the year, the chairman of the SABC told parliament that the board had become “dysfunctional”.  Indeed.  This follows news that the SABC banned a fast food advert, Jacob Zuma’s continual legal battles against cartoonist Zapiro and the proposed Secrecy Bill.  If you add to this equation the on-going internet regulation conference in Dubai, freedom of expression appears to be a scarce commodity in South Africa at the moment.
Consider the cartoon from Zaprio below, and the words of a senior Business Day journalist:

Someone must tell these guys that South Africa is not the Soviet Union”...

press freedom, freedom of epxression

Saturday, 8 December 2012

iStuff how-tos (Part two)

This is part two of a how-to with screen shots and brief explanation for changing iTunes store regions, the iStore Match Service and upgrading the recent system software on a iPhone or iPad. Part one is here.

Use iStore Match

Great product. All my content is synched up and available across all of my devices (Mac, iPhone and iPad). For me, this is convenient and worth the annual fee, which is R199,99.  To access this, select iTunes (from PC or Mac) and look for "iTunes Match"in the right hander corner of the main iTunes shop front, as shown below:


Look below right of the Beatles banner, click iTunes Match and you will be asked to subscribe for R199,00. Select yes (you may have to confirm payment details) and you will be shown the series of screens below:

update iphone ipad system software

istore match service


istore match service how tos

Once done, you will need to enable the service on you mobile devices (iPhone and iPad are the same), as shown below:

mobile apple setup help

http://etrader.kalahari.com/ecentral/images/electronics220X120.gif Digital Shop 

Click the iTunes Match to ON. You will be shown warning above, click enable and you are done.  I would also enable automatic downloads (note: if you are in South Africa, be wary of bandwidth usage, select this to off if you have capped internet access and only update and download when on wi-fi).

Update system software 

Have you ever looked at the red icon with the number one on it (below) and wondered; what is that? Typically, it is small updates to existing software on the iPhone or iPad. Sometimes, especially when the icon is over the settings icon it is usually a major system update.  Look at the screen shot below:

itunes match setup

Click the red one icon over settings. You will see this:

iphone itunes match service

upgrading system software of apple devices

Make sure you are plugged into mains power and on wifi, click download and install and you are done. The device will restart and you will need to do this individually for each device. 

Friday, 7 December 2012

iStore officially launches in South Africa: iStuff how-tos…(part one)

After years in the wilderness, South Africans can finally (without contravening Apple's terms of service) purchase content from Apple’s iStore. The South African version of the digital store officially opened on Tuesday 4 December 2012, along with a further 55 new countries, including the likes of Russia and Turkey.  

The digital iStore first opened in 2008 (as an update on iTunes software), and since that time many in South Africa have been purchasing content. A typical example would be creating a user profile as someone living in a foreign country and purchasing content with prepaid Apple vouchers.  Some, as I did, lived abroad and had access to accounts in existence, in any event, regardless of how it was done, it was an inconvenience, probably in breach of the terms of service and left most of us Africans in the stereotypical dark continent...

Many online retailers in fact sold (and continue to sell) Apple vouchers to local users. This obviates the need for an American credit card and opens up all content, including streaming video.   Lately, many South Africans elected to use the Kenyan version (as well as the American) of the iStore to have access to more content - the South African version was hopelessly empty. In any event, the intricacies of how that was done is best left to someone else.  The bottom line is South Africa now has access to a legitimate version of the iStore, well most of it.  The main missing feature at the moment is video and access to Apple TV.  It is coming.  A European based Apple representative confirmed on e-mail this week that South Africa will have video content this month.

Now, onto the iStuff how-tos.  This is part one of two with screen shots and brief explanation for changing iTunes store regions/countries, the Match Service and upgrading the recent system software on a iPhone or iPad:

iPhone / iPad

Change region

Note: to change region you must have valid South African credit card information. Select settings (silver machine wheel icon) from the home screen of iPad or iPhone:

change region in istore

Scroll down until you see "iTunes & App Stores" (if you have updated software) or "Store":

The next step assumes you have an Apple ID. If you do not, read here. Click your Apple ID (usually your e-mail address) and select "View Apple ID":

apple south Africa

You will then be asked for your Apple ID password. Enter it. You should be presented with your account settings front screen:

apple store south Africa

Occasionally, you may get the error below (I would imagine Apple detects South African IP address):

istore how-tos

Click okay and you will be back to the main account screen with a South African flag next to Country / Region. If you have another country or region selected, select South Africa from the list of countries. Accept the terms and conditions (copy via e-mall of you wish), click agree and you will be asked to enter valid South African credit card details and a postal address within South Africa.  Once accepted, click done.

how to change region country in iTunes

iStore launch in South Africa

apple how tos

You will be sent a confirmatory e-mail. If you use an iPhone and iPad you will need to do it on both devices - the process is the same.  I would also suggest going to settings, international and changing your region to South Africa:

istore how tos

change country of iTunes

Lastly, and most importantly, buy some music...

Part two to come.

Thursday, 6 December 2012

Secrecy Bill Update

The so called South African Secrecy Bill (Protection of State Information Bill) [pdf file] was accpeted by the South African Parliament’s National Council of Provinces (NCOP) on 29 November 2012, by a margain of 34 to 16, bringing the legislation two steps away from being formally signed into law.

The legislation, since it was initially introduced by then Minister of State Security Ronnie Kasrils in 2008, has lurched along garnering global attention. 

It is designed to replace outdated apardheidt era spy law bringing South Africa in line with the majority of modern society.  However, critics argue the severe nature of its implementation will discourage whistelblowers, chill free speech and create an environment within which corruption will continue to flourish. It is argued that definitions are overly wide and penalties in the Bill are excessively stiff, including 25 years in prison. The matter is now drawing to its inevitable conclusion and has become rather emotive.

Some have asked the journos to stop whinging and look at the benefit, while most media outlets have focused on the nefarious practical implications of the proposed Secrecy Bill. The Britania Encylopedia destroying Wikipedia has even referred to the South African legislation as highly contravesial.

I think most would conceed that legislation of this type is required in a constitutional democracy. Partiucalry in modern society where information is available at the click of a mouse or the push of a button. Equally important in that same equation is freedom of expression. These two competing interests (state security versus freedom of expression) are said to be difficult to balance but as a general principal, if freedom of expression is to prevail where a public interest exists, potential abuse of secrecy laws by state organs can be minimized. Now, the devil is always in the detail, but with public interest as a guiding principal, we cannot go far wrong as a modern society.

Similarly, if information is already in the public domain, it does appear overly harsh to criminally prosecute repition of this information; especially in the Google age. The two concerns I allude to, namely, a public interest defence and a defence relating to information already in the public domain are two of the key concerns raised by opponents of the Bill.  But, there are many more complaints – see the Right to Know Campaign, which has a plethora of analysis and infromation availavle on the subject.
Conversely, politicians pushing for the Bill to be put on the books as an Act of Parliament state that it is current international best practice and increasingly required in a post 9/11 environment.  Further, the ruling African National Congress (ANC) has stated that it has been “more than fair” in entertaining criticism of the Bill and ANC officials have publicly stated confidence in the Bill passing constitutional muster if required.   
It does appear as if the ANC is now hurrying this along, with the Bill being condemned by as diverse a person as the former Ireland Prime Minister. In trying to pass the Bill in parliament two weeks ago, a document that could have been engineered in a James Bond lab, “Myths about the Protection of State Information Bill”, was handed out to parlimentarians before the vote.  It was without logo or author, and on the face of it flawed.  If decisions are based on this sort of material, it is deeply distrurbing. See for instance, an image courtesy of the Right to Know website:

secrecy bill south Africa

Well, it is indeed a fact that the clause above is in the Bill. However, the clause above is not a public interest defence. It is a clause relating to the classification of information; it is not an overarching defence clause. The entire document appears to show similar misrepresentations with some parts of the country under the mistaken belief that the amended Bill contains “a public interest defence”.  It does contain a public interest consideration insofar as classification of information is concerned but it is not a defence.
Be that as it may, the main opposition to the ANC, the Democratic Alliance (DA) has said it vows to fight the Secrecy Bill listing the format it will accept. The Right to Know Campaign is driving civil society to stand up against promulgation of the Bill and even close ANC ally, the Congress of South African Trade Unions (COSATU) has voiced recent concerns.
With the context in mind, the acceptance of the Secrecy Bill last month was widely reported on in a critical manner, both in South Africa and abroad. Ultimately, the Bill was passed by a vote of 34 to 16 with no one sitting on the fence and refusing to vote.  In the new year, the Bill will be put before the National Assembly and then the president’s signature will be sought to complete formalities.  It is likely that it will proceed to an Act of Parliament and be constitutionally challenged by opposition political parties and NGO’s.  This will be a seminal moment in South African constitutional history and shape the future of our democracy. Watch this space!
In closing, consider this quote from South Africa’s first constitutional court judgment dealing squarely with freedom of expression, the matter of South African National Defence Union v Minister of Defence:
[f]reedom of expression lies at the heart of democracy. It is valuable for many reasons, including its instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally. The Constitution recognises that individuals in our society need to be able to hear, form and express opinions and views freely on a wide range of matters…”