‘Digital capture’ looms large in SA
‘Digital capture’ is every bit as insidious and damaging as state capture — and it should be fought with equal vigour
The word "capture" has become almost as popular in SA as the suffix "-gate" is in the US. It’s something I’m proud of, as our regular, almost unconscious, capitulation to the memes and tropes of American cultural imperialism is deeply annoying, if not downright pathetic.
Of course, the whole world — and not just the English-speaking world — loves to call things "Somethinggate". The list of "-gate" scandals on Wikipedia has the plaintive disclaimer: "This is a dynamic list and may never be able to satisfy particular standards for completeness."
There are examples of -gate scandals from many countries, including South Korea (Burning Sun-gate), China (nudegate), Sweden (penisgate, involving Lenny Kravitz — you’ll want to Google that one), Argentina, Germany and others.
We’ve now thrown our hat into the global cliché ring with "state capture", "media capture", and so on. Though, regrettably, I see some irritating subeditor at the Sunday Times used "Guptagate" in 2015, so that sucks.
What I want to talk about today is yet another capture that the ANC — that highly efficient scavenger of the body politic — is attempting to scoop into its greedy maw: "digital capture".
The Films & Publications Amendment Act 11 of 2019 has been passed by parliament and signed by the president, though the date of implementation hasn’t been decided yet. The Film & Publication Board (FPB), bless its hand-spun socks, was tasked with extending its mandate to include online content and the creation, production and distribution of said content.
I had the misfortune of meeting the FPB about this very matter a few years ago, and I was gobsmacked by the lack of digital acumen. But that was a few years ago, I’m sure the board has learnt a lot since then. Or has it?
This is how the body that is inexplicably responsible for regulating content on the internet defines the material it will regulate: "Publication means, and includes, where applicable, any of the following, published using the internet:
- "Any newspaper, magazine, book, periodical, pamphlet, poster or other printed matter;
- "Any writing or typescript which has in any manner been duplicated;
- "Any drawing, picture, illustration or painting;
- "Any print, photograph, engraving or lithograph;
- "Any record, magnetic tape, soundtrack or any other object in or on which sound has been recorded for reproduction; … and
- "Any figure, carving, statue or model."
Yes, you read that right. Printed matter. Printed matter published on the internet.
Now, I don’t believe the FPB, and perhaps even its nominal leader, communications, telecommunications & postal services minister Stella Ndabeni-Abrahams (back fresh from her two months special leave imposed for breaking lockdown regulations), really thinks that you can publish print on the net — but it’s the clumsiness of the definitions that irks me.
And the absurdities of the 2020 amendment to the Films & Publications Act of 1996 don’t end there. For example, it appears that anyone who publishes online is required to register and obtain a classification for all content made available online. Yes, everything you publish has to get a rating classification.
It’s all ludicrous, of course, and calculated to impose draconian control where control is well-nigh impossible. Well, I say that, but of course China and others are making a damn good stab at imposing control, and as I’ve written about on these pages before, there’s a lucrative industry in exporting digital security technology to African countries.
The very real and dangerous truth is that where there is ambiguity in law, corrupt governments will take advantage when it suits them. And in the worst governments, there’s not even ambiguity.
For perspective, let’s take a look at Tanzania’s recent Electronic & Postal Communications (Online Content) Regulations, gazetted on July 17. Here are some highlights:
Under a section called "prohibited content", subsection "sexuality and decency", the following is prohibited: "Content that depicts, motivates, promotes or facilitates publishing or exchanging of homosexuality." (Not really sure how you exchange homosexuality. I assume it’s some sort of swap meet.)
Also prohibited is "content that motivates, supports or promotes practices or trading of sexual or immoral goods such as moves [sic, and I’m thinking lewd dance moves], photos, drawings, books, stories, sexual games, toys and related things".
Filipina journalist Maria Ressa was found guilty in a cyber-libel case relating to a story published in 2012, using a cyber-libel law that didn’t actually exist that year
"Related things" leaves it pretty open. (That’s probably an illegal pun, I now see.)
Under the section "public security, violence and national safety" we find "anything that can be seen to be for the purpose of ridicule, abuse or harming the reputation of the United Republic", including the flag, "national anthem or the United Republic’s symbol, national anthem or its logos".
That would basically be my entire reason for living gone, if I lived there. Odd that national anthem is mentioned twice. I guess they really mean it.
But it’s the stuff that’s open to self-serving interpretation that’s even scarier. All our brave brocasters would be in trouble in Tanzania, as "content that calls for or motivates, promotes or provokes noncompliance to the laws and regulations" is forbidden. This includes "content that causes annoyance", which is, well, pretty much anything they decide, I assume. Oh, and "content that contains or promotes offending or ridiculing religions, or any of its rites, sanctities of [sic] divine books".
That’s me screwed again.
I’m tempted to keep listing stuff, but perhaps I’ll mention just one more at which to marvel: weather. "Public information that may cause public havoc and disorder" includes a prohibition on content regarding "droughts, weather forecasts of occurrence of natural calamities without the approval of the respective authorities".
By the way, the punishment for this is "a fine of not less than Sh5-million or to imprisonment for a term of not less than 12 months or both". That’s about $50,000, or R850,000.
Oh, and internet cafés there must "install surveillance camera to record and archive activities inside the café".
Compared with this and other dictatorial and antidemocratic legislation in a host of countries, our government is still pleasingly incompetent when it comes to denying us our digital rights (though I wouldn’t let that lull you into a false sense of security).
In Brazil, for example, Jair Bolsonaro’s administration has a "hate office", run by the president’s son, which publishes large-scale attacks on journalists.
As we speak, or however we describe this reader/writer relationship, Maria Ressa, one of the great and fearless journalists of our time and CEO of Filipino news organisation Rappler, is facing prison on charges trumped up by the government of the Philippines.
What it means:
Global precedent shows us that we need to keep tabs on your new digital publications law
Ressa has been one of the major opponents to President Rodrigo Duterte’s brutal rule, reporting on huge misinformation campaigns by a pro-Duterte army of trolls and on extrajudicial killings and other abuses.
To illustrate how governments can use ambiguities in law to push their agenda: Ressa was found guilty in a cyber-libel case relating to a story published in 2012, using a cyber-libel law that didn’t actually exist that year. But the justice department allowed the case to proceed because the online article was updated in February 2014 to correct a spelling error.
A Thousand Cuts, a documentary about Ressa, has just been released, and a Guardian interview with Ressa about it highlights how the absurdity of online legislation, and the obfuscation of apparent incompetence, is used to further the evil ends of governments.
"For years now, I’ve been saying that I feel like Alice falling down the rabbit hole, with talking cards all over saying off with my head," says Ressa.
There’s been a growing trend of internet shutdowns in African countries recently, and many other attempts at limiting the digital rights of citizens.
We need to fight digital capture with the same rigour used against state capture — and, unfortunately, with the same sad realisation that it’s a never-ending battle.
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