Anton de W Alberts
BA LLB LLM (International Law)
Legal adviser: M-Net (Broadcast media)
Introduction | The nature of the Internet | Physical component | Cyberspace content |
Outer space law | Conclusion | Author biography
1. Introduction

“We are the Borg. Resistance is futile.
Prepare to be assimilated.”

Star Trek: First Contact
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The Internet as a form of media can in essence not be regulated in total by any authority. Governments, by their very nature, try and will continue to try to resist the freedom that the Internet offers and will endeavour to regulate this new technology platform for their own various reasons, such as censorship and taxation. In reality, however, the Internet is a connectivity platform that is assimilating all known boundaries of geography and time. The Internet has changed the concept of space and time as we as we have come to understand it and is an electronic animal refusing to be regulated. It has become a cybernetic entity with a life of its own. Organic growth is occurring at an exponential rate beyond any known growth in the history of humankind.1

This fact can best be illustrated if we come to understand the nature of the Internet.
 
2. The nature of the Internet
“The Internet is becoming the primary platform for the essential activities of
computing, communications and commerce.”2
John Chambers CEO Cisco
The Internet can, at its most basic level and for the purposes of this discussion, be divided between the physical structure that creates the conduit in which the Internet exists, and the content that makes up the information that an Internet user sees.
 
The physical structure, also referred to as the backbone in the Internet industry, allows for the physical connection of a myriad computers, with cables, routers, switches and satellites, across the globe that can, as a result, communicate with and transfer information to each other.3 The content of the Internet, or information, is transferred from one computer to another on the TCP/IP Protocol that forms the international software platform on which computers can send and receive commands from each other. Both of these components of the Internet can be regulated to a certain extent, but as will be shown, there exists for the most part a limitation on the regulation of the Internet, whether it is the backbone or the content.

The regulation of each component takes on an unique character based on the inherent nature of each of the components.

  • The backbone exists in three-dimensional space, the first frontier of human existence.
  • The contents exist in the cyber world of digit-dimensions that may be called the second frontier of human existence, and is regarded as a parallel world.4

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The backbone has a physical existence spanning South Africa’s vast territorial expanse, but it also continues across the borders into other areas of state and international jurisdiction. The territorial autonomy of states disallows any interference of one state in the affairs of another, especially with regard to regulatory issues. This has been the basis of international law since its inception in Hugo de Groot’s treatise on the legal relationship between states.5
 
The cyber world is even more difficult to grapple with, as it has not really been defined as anything capable of being attributed a jurisdiction that is based in the three-dimensional world. There were some attempts at this, but none of them have proven to be self-contained methods that can provide answers all the time.6 The cyber world can at best be described as the digital version of the Wild West, where no law has real relevance; there are only the conventions of the Internet users that develop and disappear faster than any custom-creation process humankind has been involved with before.7
 
The regulation of the Internet, or rather the attempts to do so up to this point, must be viewed from the perspective of the two basic components outlined above. The physical and cybernetic frontiers provide for quite different methods of regulation, but none of these methods provide the necessary security or legal certainty they are supposed to, for the reasons discussed herein.
2.1 The physical component
The hardware that forms the physical building blocks of the Internet must be installed somewhere in the physical or three-dimensional world. This means that the South African section of the Internet’s hardware can be found somewhere in South Africa’s territorial space.

In essence, the backbone currently consists of the following:

  • various computers with modems and servers across South Africa and in other states across the globe
  • physical telephone cables (copper or fibre-optic) in South Africa, in international waters, and in other states that connect each on-line computer in the world with the other (with the necessary routers and switches)
  • terrestrial transmitters that send and receive messages from one computer to the other within one state
  • satellites that distribute messages from one computer to the other across the globe

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As technology develops it is foreseeable that even more ways of physical transmission of digital messages between computers can be created. The above description of the backbone is to date still in essence how millions of computers throughout the world are connected. What is of importance, however, is that various methods of connection can be interlinked. It is not rare to find that an Internet service provider, which runs the server and provides the point of entry for an end-user from home, can receive and send messages to the rest of the world via a satellite, while being linked to all of its subscribers by way of telephone cable. Some Internet subscribers can be directly linked with a direct-to-home satellite (DTH Sat) and will thus not make use of any cable in their state of origin. However, in the process of asking information from another computer in another state, the subscriber can be accessing that foreign computer via cable in another country, after the message has left the transmission system of the satellite. It can become even more complex. The DTH Sat subscriber can access an on-line computer just a few blocks away, even a few metres away, but be routed across the globe via various cable and satellite systems back to the state of origin. In a matter of seconds, one could have circled the world, crossing various legal jurisdictions in cyberspace without even knowing it.8 The fact of the matter is still, however, that no matter what part of the backbone is used, this backbone has a physical presence that one can pinpoint and define. This means that the Internet may be regulated by way of the physical manipulation of the structure, or by imposing legal norms with corresponding sanctions should the norms be breached. This makes it easier to regulate this component with more certainty.

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In fact, the backbone of the Internet has already been regulated to a degree by pure coincidence as a result of its physical presence. The reason for this is that the backbone was not originally created exclusively for the Internet. In fact it was not even created for the Internet, but for Alexander Graham Bell’s great invention, namely the telephone. His invention spurred the world on to create a global infrastructure of cables whereby all with telephone access could communicate with each other. As with all human creations, regulation follows creation, so as to ensure legal certainty for better or for worse. Thus, all governments that allowed telephone communication made sure that there was adequate regulation of this new technology within their states’ respective borders. In addition, these states engaged in the creation of an international legal regime to oversee the creation and implementation of universal and uniform standards across the globe to facilitate what is today known as telecommunication.9 This was done by the establishment of the International Telecommunications Union (ITU) as a functionary of the United Nations. Later new inventions, like radio and television, followed the telephone to share the same infrastructure as backbone in addition to creating new ones, specifically in the United States where cable television became the norm. In contrast, South African radio and television were broadcast via terrestrial air transmissions until broadcasters discovered the value of satellite transmissions.

This means that telephone, radio, television and the Internet do share the same backbone in South Africa, but only in the following combinations:

  • In satellite-based communication, telephone, radio, television and the Internet can and do share this physical distribution platform.
  • In cable-based communication, both telephone and the Internet share this physical platform.
  • In terrestrial air broadcast, telephone (cell phone), radio, television and the Internet can and do share this physical platform.
  • In addition, some of the media can merge on the same physical platform. Thus, the Internet can carry radio and television transmissions inside the TCP/IP Protocol on any physical backbone that will carry the Internet transmission. This includes cable broadcast, terrestrial broadcast and satellite broadcast. The reverse is also true. Television signals via any terrestrial or satellite broadcast can and do carry Internet content as well.

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With the advent of the computer, it did not take too long to have computers connected to “talk” with each other via the very same network created to service telephone calls. Thus, computers could send their digital messages to each other via the same cables and satellites that people used to send their verbal messages to other people. It is at this point that telecommunication married information technology to form a new hybrid field called Information-Communication Technology (ICT). It is from this convergence that the Internet was born.
 
As will be indicated, the law that regulates the individual fields of information technology and communication technology has not yet caught up with the convergence of these fields and, therefore, is lacking a coherent system of regulatory norms that can adequately address the novel problems created by this convergence. Some countries have endeavoured to create legislation that can address some of the most pertinent issues, but in South Africa no real holistic legal framework has been forthcoming. Instead, the Internet, a platform born out of convergence, is currently regulated in South Africa in a haphazard way by separate legal fields.
2.2 The content component
The content of the Internet is based on the TCP/IP protocol. The text is based on HTML (Hypertext Markup Language) and various other applets can create art forms, animation and other forms of special effects. In addition sound can also be added and this makes the Internet a tool of full multimedia capability. Therefore, as far as the content is concerned, it is software that creates the visual and audio signals that the user sees and hears. Hence it would be easy to say that the contractual law that regulates the use and licensing of the software would be the applicable law that regulates the content, as would the law that encompasses the field of information technology. Further, one can also assume that the legal norms regulating, inter alia, copyright, trademarks and censorship will also cover the contents and ideas placed on this software platform. It is not that simple however. The Internet is a new breed of media that ignores all known boundaries of time and space. It is especially with regard to space that problems start arising. Is there such a thing as jurisdiction in cyberspace? Which states’ laws on contract, copyright, trademarks and censorship should apply?
 
Some states have already endeavoured to regulate some of the aspects related to content, but still, none of it is foolproof. It is, however, important to discuss the external regulation of the Internet first, before the complex issue of internal regulation is analysed.
3. Physical component: legal regime applicable to the Internet in South Africa
3.1 Jurisdiction

Of importance are the jurisdictional implications of the fact that the physical infrastructure of the Internet is based in South Africa’s territorial space, but also extends further into other national jurisdictions and international spaces. This means that the South African legal regime will only be applicable to the parts of the backbone that fall within its state-territory. Once it crosses South African borders, one of two jurisdictions will become applicable: the jurisdiction of another state, or the jurisdiction of international law.

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These jurisdictions will become applicable as follows:

  • If the backbone crosses the South African border horizontally across the planet surface, then the law applicable will be another state’s law if the applicable backbone continues into the territory of any state adjacent to South Africa, or any other state subsequent to crossing any international spaces. International law will be applicable if the backbone continues into any territory that does not belong to any state, such as the high seas.
  • If the backbone crosses the South African border vertically outside the atmosphere of the planet by way of satellite transmission, international law and outer space law will apply. Certain points here need further elaboration and will be dealt with under heading 5 below.
As most states, including South Africa, already had a legal regime in place by way of statutes governing their cable and satellite backbone, some regulation of the physical component of the Internet also became possible, even though the relevant legislation was not initially intended for such application.

The regulation of this technological infrastructure was and still is done by dividing the use of the backbone into two distinct categories:

  • for telecommunications use, e.g. telephone services and electronic data transfer services
  • for television and radio broadcasting use

Once it has been established that the applicable jurisdiction falls within the ambit of South Africa’s territorial space, then it will become important to look at the applicable South African law on telecommunication and broadcasting to ascertain the extent to which the Internet might be regulated as a form of media.

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The question now remains whether these telecommunication and
broadcasting regimes can be applicable to the Internet in South Africa.
3.2 Telecommunications regime

South Africa’s telecommunications regime is regulated by the following statutory instruments and policy guideline:

  • The Constitution Act 108 of 1996
  • The White Paper on Telecommunications
  • Telecommunications Act 103 of 1996
  • Policy on South Africa’s National Information and Communications Superhighway
3.2.1 The Constitution (Act 108 of 1996)
The Constitution forms the basis of the legal state and entrenches certain rights which guarantee the effective implementation of principles contained in the Telecommunications Act and policy guideline. As this is South Africa’s supreme law, one cannot envisage that its principles won’t be applicable to the Internet backbone in South Africa. It is still, however, an open question how these principles will in practice be applied to the Internet. The SATRA v Telkom matter, as discussed below, does give an indication how the Constitution, especially the Bill of Rights with reference to section 32 that guarantees free access to information, can be used to determine Internet-related issues.
 
 

3.2.2 The White Paper on Telecommunications
The White Paper was the precursor to the Telecommunications Act 103 of 1996. This is still relevant in so far as it provides a guideline according to which the Department of Communications establishes policy guidelines for the South African telecommunications industry.

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3.2.3 The Telecommunications Act 103 of 1996
The Telecommunications Act 103 of 199610 covers a broad field in telecommunications, but in essence, the Act provides for the following:
  • the regulation of telecommunication activities other than broadcasting (broadcasting being regulated by the Broadcasting Act 4 of 1999 and the Independent Broadcasting Authority Act 153 of 1993, as discussed below)
  • control of the radio frequency spectrum11
  • for the above purposes, the creation of an independent South African Telecommunication Regulatory Authority (SATRA) and a Universal Service Agency
  • broad regulation of telecommunications services in South Africa in the public interest, an obligation placed on SATRA in terms of section 2 of the Act
  • providing Telkom, the state telecommunications service provider, with a five-year exclusive Public Switched Telephone Network (PSTN) licence.12 In terms of section 36(1)(a) of the Act, the Minister of Posts, Telecommunications and Broadcasting issues a licence to Telkom for public switched telecommunications services valid for 25 years from the date of the commencement of the Act. Five years of this period will enjoy an exclusive licence, which expires in 2004. This licence includes the following telecommunications services:
    • national long-distance and international telecommunications
      services, for which Telkom has an exclusive licence in terms of section 38(1) of the Act
    • local access telecommunications services and public pay-telephone services, for which Telkom has an exclusive licence in terms of section 39 (1)(a) of the Act
  • providing Vodacom (Pty) Ltd and Mobile Telephone Networks (Pty) Ltd (MTN), in terms of section 37(1) of the Act, each with a licence for mobile cellular telecommunications services
  • further providing licences for Value-Added Network Services (VANS), which include services based on the existing telecommunication infrastructure of Telkom. This would include the following:
    • electronic data interchange
    • e-mail
    • protocol conversion
    • access to a database or a managed data network service
    • a prohibition on voice carried over a value-added network13

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The Act, however, omitted to declare anything on the Internet itself. Nowhere in the Act is the nature of the Internet alluded to, defined or an indication given whether Internet service delivery would fall under a PSTN or VANS licence. This omission led to the Internet access dispute between Telkom and the Internet Service Providers Association (ISPA), as will be outlined below.
 
This telecommunications regime was created chiefly for telephone communication services as the main core of service delivery. When this Act was passed the Internet, even though it did exist, was still largely a non-event in South Africa. With the full-blown advent of the Internet in South Africa, the regime was suddenly faced with its first real identity crisis.
 
The question was whether the Act had any jurisdiction over the Internet in South Africa, especially with regard to the backbone section. As the Act endeavours to regulate all telecommunications in South Africa, the key to the applicability of this Act lies in the definition of telecommunication as outlined in Chapter I section 1(xxv):

“‘Telecommunication’ means the emission, transmission or reception of a signal from one point to another by means of electricity, magnetism, radio or other electromagnetic waves, or any agency of a like nature, whether with or without the aid of tangible conductors.”

This definition is very broadly drafted and it can be construed that the Internet, as a form of media, is an emission, transmission or reception of a signal, because the Internet operates by way of signals transmitted from one point to another by means of:

  • electricity: used in hardware and cable
  • magnetism: used in hardware and cable
  • radio: used in terrestrial air and satellite transmissions
  • other electromagnetic waves: used in satellite transmissions

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But can it be said that Internet signals are the same as those envisaged by the Act?
 
In terms of Chapter I section 1 (xxiii) of the Act a signal means the following:  
“‘signal’ includes signs, sounds, writing or information of any kind.” 
It is clear that this broad description of the content of telecommunication could also easily include the IP platform, the HTML Internet language, various applets, multimedia, interactive and streaming content of the Internet. In effect this Act covers the form of communication and content of that communication that is to be found in the domain of the Internet.
 
Having established that the Internet functions as a form of telecommunication, the question is whether the Internet, in its South African and international format, forms a telecommunication system that would be covered by the Act. This question can be answered by looking at how the Act defines a telecommunication system in Chapter I, section 1(xxvii):  
“‘telecommunication system’ means any system or series of telecommunication facilities or radio, optical or other electromagnetic apparatus or any similar technical system used for the purpose of telecommunication, whether or not such telecommunication is subject to rearrangement, composition or other processes by any means in the course of their transmission or emission or reception.”

This broad definition clearly also includes the backbone of the Internet. This is obvious as the Internet utilises the same backbone as other telecommunications services, such as voice telephony. The Act goes even so far as to describe what it means to have various telecommunication systems linked, the nature of which makes the Internet truly national (and international) in reach:

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“‘interconnect’ means to link two telecommunication systems so that users of either system may communicate with users of, or utilise services provided by means of, the other system or any other telecommunication system, and ’interconnection’ has a corresponding meaning.” 
With this in mind, one can conclude that the Internet is a form of telecommunication, and therefore, will be covered by the provisions of the Telecommunications Act. This rings even more true if one has regard to the dispute between Telkom and the Internet Service Providers Association (ISPA) that was referred to SATRA, established in terms of the Telecommunications Act, to adjudicate.
 
Get the Telecommunications Act at
http://www.polity.org.za/govdocs/legislation/1996/index.html
 
Get the White Paper on Telecommunications Policy at
http://www.polity.org.za/govdocs/white_papers/telewp.html
 
Since the Internet’s introduction into South Africa, a myriad of internet service providers has sprung up to provide connection services to the public. In 1996, Telkom created a network called the South African Internet Exchange (SAIX).14 SAIX is a network that does not carry any voice, but only data. According to Telkom’s plans, it is envisaged that SAIX will operate as follows: whenever a person attempts to access the Internet, he/she will be routed to the SAIX at the nearest local exchange. This would, according to Telkom, have the effect of providing faster Internet access, as well as solving the congestion problems occurring at some telephone exchanges. Telkom will then, by using this system, be the only provider giving access to the Internet. Furthermore, Telkom believes that it has the exclusive right to give access to the Internet according to its Public Switched Telecommunications Licence (PSTS-licence).15

In 1997 Telkom, therefore, started disputing that independent Internet service providers (ISPs) had a right to provide such Internet connection/access services to the public. The Internet Service Providers Association resisted this stance by Telkom, arguing that ISP services were not a PSTN service, but rather a Value-Added Network Service (VANS). According to this argument, Telkom was never awarded an exclusive licence to provide a VAN service, and therefore ISPs could also provide Internet connection services. The dispute grew bigger until both parties decided to refer the matter to SATRA for a decision. In terms of section 96 of the Act, SATRA is empowered to make regulations in relation to any matter that in terms of this Act shall or may be prescribed by regulation.

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SATRA subsequently ruled that no single entity shall have exclusivity over Internet access and that the Internet is provided as a value-added service. This service provision, therefore, fell within the jurisdiction of the VANS licence that is non-exclusive, thus allowing competitors into the market to compete with Telkom.

SATRA’s official pronouncement, made in terms of section 5(2)(b) of the Telecommunications Act 1996, was:

  • The Internet is an information service.
  • As an obligation is placed on SATRA by section 2 of the Act to regulate telecommunications services in the public interest “the Authority acknowledges the right of all to information as well as the need to redress the current disparity of access of information in our country.” The Authority, therefore, took cognisance of the provisions of section 32 of the Constitution which guarantees everyone access to information, and the national telecommunications policy as outlined in the White Paper.

Further, on the basis that Internet Protocol (IP), the basis of the Internet:

  • is essentially a “routing” rather than a “switching” capability
  • resides within terminal connection equipment, and
  • operates as an addition to the telecommunication infrastructure that already had the potential to conduct telecommunications service without any need for IP
  • it follows that the provision of IP constitutes an added value service to a telecommunication infrastructure
In the light of this, SATRA pronounced that IP is to be provided in terms of a VANS licence according to section 40 of the Telecommunications Act. This means that, as far as the regulation of the Internet backbone in South Africa is concerned, various role-players not involved with Telkom may provide a
connectivity/access service to Internet users. This decision was a step in the direction of deregulation of the Internet as media.

Furthermore, SATRA pronounced that if Telkom were to be given a monopoly on providing Internet access, then it would be under no obligation to roll out universal Internet access to underprivileged areas, in terms of its PSTS licence. Therefore, for policy purposes, it is better to leave it to all ISPs, including Telkom, to promote universal access. The ISPA welcomed this ruling and in a press statement declared that “ISPA members are already working with the Universal Service Agency to drive the concept of Internet enabled telecentres in disadvantaged areas.” In addition ISPA has committed itself to submit an extensive social responsibility document to SATRA with suggestions for tangible contributions to the universal service initiative. According to ISPA, its membership also includes a number of non-profit, non-government organisations, such as SANGONET,16 that have already made significant strides in terms of social upliftment by way of Internet technology.

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SATRA then went even further by pronouncing that it will create a regulatory environment in which ISPs will contribute towards achieving universal service obligations so as to guarantee everyone access to information. This regulatory regime will be based upon the following principles:

  • universal service obligations on ISPs
  • a common peering point, neutrally located and run by a steering committee composed of ISPs
  • keeping Internet traffic within the country, thus obviating the need to communicate locally via international gateways. In this way the need for international bandwidth will be minimised
  • overcoming the lack of interconnection of Internet networks
Telkom, however, was not satisfied with SATRA’s ruling and decided to refer the matter to the Pretoria High Court. Telkom made an application to the court to have SATRA’s ruling set aside in that it infringes upon Telkom’s exclusive licence to provide PSTN services. The court set the application aside to evidence on the merits. This means that both parties must argue the merits on which the court will give a ruling. When this happens, it will be the first time a South African court will rule on the regulation of the Internet domestically. At the time of writing the court date has not yet been confirmed. Therefore, SATRA’s ruling is still the last word on Internet access provision.
 
According to Gordon (1998)17 it seems, however, that the Internet may be regulated as follows:  
“According to the Act, SATRA is responsible for regulating the South African telecommunications industry. This is done in conjunction with policy directives that the Minister of Postal and Telecommunications services can issue from time to time.18 Before the minister can issue these directives, he must consult with SATRA.”19 

It is therefore clear that the minister, together with SATRA, can impose such measures deemed necessary to regulate the telecommunications industry. If one reads the Telecommunications Act carefully, it seems as if the initial purpose for the creation of SATRA was to see to it that Telkom does not overstep its boundaries with regard to the exclusive licence it has been given to establish a Public Switched Telecommunications Service (PSTS). However, there are no provisions in the Act that prohibit the minister and SATRA to make rules to govern the South African part of the Internet. As a matter of fact, SATRA is expressly allowed to “perform all such acts and do all such things as are reasonably necessary for or ancillary, incidental, or supplementary to the performance of any of its functions”.20 Technically speaking, it seems as if SATRA can, within its legal limits, do anything to properly regulate the telecommunications industry, even to the point of regulating the Internet. This prerogative must, however, be balanced with the provisions and Bill of Rights entrenched in the Constitution.

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Gordon The Legal Challenge of Regulating the Internet: Fact or Fallacy (1998) at http://www.geocities.com/Athens/Academy/5090/index.html
 
It is interesting to note that in the Telecommunications Amendment Bill, there is in section 1 (c) an effort to define the Internet. This is a clear acknowledgement, apart from the pronouncement from SATRA, that the Telecommunications Act is intended to be applicable to the Internet as well. According to the Bill the Internet is defined as follows:  
“‘Internet’ means an integrated computer network or networks through which users’ computers connect to each other by means of the TCP/IP family of protocols or related successor protocols.” 
Get the Telecommunications Amendment Bill at
http://www.polity.org.za/govdocs/bills/1999/index.htm
 
Further, to strengthen SATRA’s decision that Internet service provision falls under a VANS licence, the Telecommunication Amendment Bill has endeavoured to define exactly what Value-Added Network services mean:  
“‘Value-added network services’ means any value-added network service including, without limitation, electronic data interchange, electronic mail, protocol conversion, access to a data base or a managed data network service, voice mail, store-and-forward fax, video-conferencing, electronic or printed telecommunication related publishing and advertising services, electronic information services, Internet service provision and any other telecommunications service in respect of which the conveyance of signals is no more than incidental to, and necessary for, the provision of that service; but not including mobile telecommunication services or public switched telecommunication services.”
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According to this definition, it is clear that the Internet is being pulled in under the wing of the Telecommunications Act and that in the future more regulatory directives will come via this legal instrument.
 
3.2.4 Policy on South Africa’s National Information and Communications Superhighway
Further to this, the Cabinet published certain recommendations on 4 March 1998 with regard to South Africa’ s National Information and Communications Superhighway. The recommendations approved by the Cabinet include:
  • consolidating government’s network and technology in order to ensure efficient service to the public
  • establishing a ministerial information and communications technology investment cluster in order to further speed up the growth of a sector that has massive potential and will place South Africa on the global communications highway (this will be convened by the Department of Communications)
  • defining and developing the one-stop shop concept
  • preparing legislation for e-commerce, digital signature and multimedia convergence and encryption
  • setting up a Centre for Information and Communications Technologies as an advisory body comprised of both the public and private sectors
  • continuing work to lay out a high-speed information network throughout the country
It is envisaged that a cost-benefit analysis will be undertaken by the Department of Communications and presented to the budgetary committee in the next budgetary cycle (1998/99).
 
3.2.5 Conclusion
Although the present telecommunications regime does exercise jurisdiction over the Internet backbone in South Africa, Internet service provision should not be tied to Telkom and the government. In accordance with section 32 of the Constitution, all South Africans must in principle have access to the Internet. At this stage it seems unlikely that more restrictive backbone regulation will be instituted, but only time will tell.
3.3 Broadcasting regime
It is clear from the discussion on the Telecommunications Act that the Internet backbone is regulated by the telecommunications regime. It is, however, already practice to stream (or broadcast in the traditional sense) radio and television content over the Internet. Companies such as Broadcast.com have already acquired rights from a production/distribution company to stream films across the Internet. In addition various radio stations are also “soundcast” across the Internet. It thus becomes important to ask if the South African broadcasting regime has any jurisdiction over the Internet.

The South African broadcasting regime is regulated by the following statutory instruments:

  • The Constitution Act 108 of 1996
  • Broadcasting Act 4 of 1999
  • Independent Broadcasting Authority Act 153 of 1993 (IBA Act)

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3.3.1 The Constitution (Act 108 of 1996)
The Constitution forms the basis of the legal state and entrenches certain rights which guarantee the effective implementation of principles contained in the other Acts.
 
3.3.2 The Broadcasting Act 4 of 1999
At the outset it must be stated that the Broadcasting Act and the IBA Act are to be read together, as some of the most pertinent definitions have overlapping applicability which results in similar outcomes with regard to the applicability of the Internet. This will be discussed below.

The Broadcasting Act 4 of 1999 replaces the Broadcasting Act 73 of 1976 which was the statutory instrument responsible for the following:

  • ensuring the continued existence of the South African Broadcasting Corporation established in terms of the Broadcasting Act,21 repealed by this Broadcasting Act
  • consolidating and amending certain laws relating to the South African Broadcasting Corporation and the control of broadcasting in the Republic
  • authorising the South African Broadcasting Corporation to issue
    certain licences

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The former Act was not intended to be applicable to the Internet and as the Internet did not exist outside the US military in 1976, this Act could never have been intended to be applicable to the Internet.

The Broadcasting Act 4 of 1999 has the following objectives:

  • to repeal the Broadcasting Act22 so as to establish a new broadcasting policy for the Republic
  • to amend certain provisions of the Independent Broadcasting Authority Act 153 of 1993
  • to clarify the powers of the Minister in regard to policy formulation and the Independent Broadcasting Authority’s (IBA’s) powers with respect to the regulation and licensing of the broadcasting system
  • to provide for classes of broadcasting activities in the public interest
The question whether the new Act will be applicable to the Internet can immediately be answered by referring to the definition of “broadcasting service” as set out in section 1(1)(ix):

“‘Broadcasting service’ means –

“any service which consists of the broadcasting of television or sound broadcasting material to the public, sections of the public or to subscribers to such a service but does not include:
 “(a) a service (including a text service) that provides no more than data, or no more than text (with or without associated still images);
“(b) a service that makes programmes available on demand on a point-to-point basis, including a dial-up service; and
 “(c) a service or a class of service that the Minister determines, by notice in the Gazette not to fall within this definition.”

It is clear from this definition that any type of broadcasting across the Internet is excluded from this Act, and specifically as follows:

  • If programmes (material) are provided via the Internet, then it will be a service that will be demanded by a subscriber and subsequently delivered to that specific subscriber on a point-by-point basis on his or her own PC. The Act excludes this type of service.
  • The Internet provides access to the public by way of dial-up services, and thus programmes (material) delivered via such a service, according to the Act, will not be seen as a broadcasting service.

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In addition to this, according to section 1(1)(vi), “broadcasting” means:  
“any form of unidirectional telecommunications intended for the public, sections of the public or subscribers to any broadcasting service having appropriate receiving facilities, whether carried by means of radio or any other means of telecommunication or any combination of the aforementioned, and ‘broadcast’ is construed accordingly”. 
From this definition one can glean that only telecommunication that is sent in one direction (unidirectional) is deemed to be broadcasting. The Internet, in contrast, is a form of media with telecommunication capabilities to both receive and send signals. When an Internet site is opened by a user, then in fact the user’s computer makes contact with the host computer, after which the user’s computer downloads the Internet material into its own memory. The Internet can, therefore, not be seen as an instrument of unidirectional telecommunication, but more of a multidirectional telecommunication media. The term broadcasting is therefore not applicable to the Internet and the Act cannot hold any jurisdiction over the Internet as far as its physical backbone or licensing is concerned. The IBA Act defines broadcasting in exactly the same manner, with the same consequences regarding applicability to the Internet.
 
A further level of enquiry also needs attention. Can it perhaps be argued that, since radio and television content can also be transmitted via the Internet, the Act should strictly be applicable? Once again, one will have to analyse the relevant definitions.
 
Radio: According to section 1(1) of the Broadcasting Act, “sound broadcasting service” has the meaning assigned to it in the IBA Act, namely “a broadcasting service destined to be received by a sound radio set”.
 
A sound radio set is defined by both the Broadcasting and IBA Acts as “any apparatus designed or adapted to be capable of receiving by radio the transmissions broadcast by a broadcasting service, and reproducing them in the form of sounds, but not also in the form of images or other visible signs or signals”.

From the above definitions it is clear that even if radio broadcasting is achieved by transmitting sound via the Internet, the Internet cannot be viewed as a sound radio set as it transmits images (visible signs or images) as well. The definition explicitly excludes the creation of visual images/signs/signals by the sound radio set, whereas a PC creates both sound and images on the Internet platform.

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Television: According to both Acts, “television broadcasting service” means: 
“a broadcasting service consisting in the sending of visual images or other visible signals whether with or without accompanying sounds, where the visual images are such that sequences of them are seen as moving pictures”. 
According to section 1(1) of the Broadcasting Act, “television set” has the same meaning assigned to it in the IBA Act, namely:  
“any apparatus designed or adapted to be capable of receiving transmissions broadcast in the course of a television broadcasting service”.

This definition also clarifies the issue whether the Internet and its output devices (personal computers and even television sets) can be viewed as a television set if television programming is broadcast via the Internet:

  • Firstly, in the event that no transmissions in the nature of a television broadcasting service are broadcast via the Internet, then the Internet or its output devices, in itself, simply cannot be viewed as a television set for the purposes of this Act. The reason is the nature of Internet pages. In the normal course of events these pages consist of static HTML text with spots of applets that may contain moving images. The moving images, however, do not cover the whole Internet page like the picture on a television set does. These images are also not to be found on every single Internet page. Should one accept that these images are for all practical reasons television images, then some Internet pages will fall within the ambit of the Act and others not. This will lead to a ridiculous situation of ad hoc jurisdiction of the IBA Act. It is submitted, therefore, that the Internet is not a television medium for the purposes of the IBA Act.
  • The question now remains whether the Internet and its output devices can be accepted as a television medium if television content is in fact broadcast via the Internet. As the Internet is in this case an apparatus that can receive transmissions broadcast in the course of a television broadcast service, it can be construed that the Internet is a television set and thus the Act is applicable to it. But if one has regard to the definition of “broadcasting” as discussed above, then the unidirectional nature of television broadcasting places the Internet beyond the parameters of the Act. The Internet is simply not a unidirectional form of media.

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One last aspect of the Broadcasting Act 4 of 1999 needs to be mentioned. It is of great significance that the Act states in section 33(1) that the IBA “must conduct an inquiry to determine the licence conditions, obligations and tariff structure for signal distribution including the regulatory regime for multi-channel distribution services and convergence”. Of special interest here is the mention of convergence. As stated before, the convergence of the traditional fields of information and communication technologies (ICT) is pushing broadcasting onto a new platform of connectivity, also with regard to the Internet. This means that the traditional notion of broadcasting may change and that any broadcasting authority will need to take note of this. In the light of this, section 33(1) is a step in the right direction from a government point of view. However, it remains to be seen whether the government will want to or be able to regulate this new form of broadcasting as and when it develops.
 
Thus far, it is obvious that the Internet is still left unregulated as far as broadcasting is concerned. This Act takes its place next to the Independent Broadcasting Authority Act 153 of 1993 (IBA Act) to form the basis of South Africa’s broadcasting regime.
 
The next step is, therefore, to analyse the IBA Act.
 
3.3.3 The Independent Broadcasting Authority Act 153 of 1993
The Independent Broadcasting Authority Act23 is the statutory instrument responsible for the creation of the Independent Broadcasting Authority (IBA) charged with regulating broadcasting activities in the public interest. The IBA’s ambit of authority is the following:
  • to take over those broadcasting tasks previously performed by the Minister of Home Affairs and the Postmaster General
  • the independent regulation of the broadcasting industry
  • to provide broadcasting licences to prospective broadcasters and regulate the industry
  • to formulate broadcasting policies
  • to monitor licence and programming conditions
  • to plan the broadcast frequency spectrum
  • to regulate censorship issues with regard to content
This regime is responsible for regulating both content and the physical infrastructure of the broadcasting industry. In essence this regime was created to regulate radio and television broadcasting. No other forms of media were envisaged as can be evidenced from the definition clauses in section 1 of the Act. The question is, however, if those definitions can be construed in such a manner that the Internet could also be implicitly included in the provisions of the Act. In other words, can the Internet be deemed to be a broadcast medium that facilitates radio and television transmissions? As set out in the discussion above of the Broadcasting Act, it is clear that its provisions have no applicability to the Internet, according to the definitions contained in the IBA Act.

In the final analysis it can be safely assumed that the IBA Act has no jurisdiction over the medium of the Internet. Therefore, the IBA Act’s provisions on backbone and content regulation for radio and television have no bearing on the Internet as such.

3.3.4 Conclusion
The implications of the above discussion are:
  • The physical component of the Internet in South Africa can only be regulated in so far as ISPs need to apply for a VANS licence in terms of the Telecommunications Act for the value-added service they deliver. This is the case whether Internet connectivity is supplied by way of landlines, terrestrial transmissions, satellite transmissions or any combination of them.
  • SATRA is engaging in the physical regulation of the South African Internet backbone and its Internet traffic by creating a common peering point.
  • Any service in South Africa that broadcasts radio or television programming across the Internet can do so without a broadcasting licence, but will have to do so via an ISP with a VANS licence from SATRA in terms of the Telecommunications Act.

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Therefore, at present the only regulation of the physical backbone in South Africa is performed by the Telecommunications Act.
4. Cyberspace content: legal regime applicable to the Internet in South Africa
4.1 Jurisdiction
This is the most problematic area of regulation on the Internet. To regulate the backbone is relatively easy in comparison, since the backbone is physical in nature and can be tracked within a state’s jurisdiction. The authorities can then endeavour to regulate it by physical manipulation or legal enforcement, as discussed above.
 
As for the content, regulation has been difficult and fraught with anomalies and contradictions. The content of the Internet can be regulated in various ways. Once again legal sanctions and physical manipulation are possible. None of them, however, are effective, because of the amorphous nature of the Internet.
 
Physical regulation can be achieved by way of filtering content with the use of browsers, or only allowing access to a web site if the user has a password. Legal regulation is more problematic, but is currently being used by governments to effect some sort of control over Internet content.

Normally legal regulation will be used with reference to a specific purpose. If a web site contains explicit pornography and vile content, censorship laws will be used to control access to and dissemination of it. On the other hand, if commerce via the Internet becomes an issue, commercial law norms will be used. It is thus clear that a myriad of legal fields can become relevant to Internet content. The great question, however, is if these legal norms can successfully be applied to the Internet.

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This discussion focuses on Internet censorship and commerce and their regulation, if any. These two are now the most pertinent fields being investigated and studied the world over.
4.2 Censorship
In South Africa censorship of the media is divided into different statutes that endeavour to regulate various different forms of media.
 
4.2.1 Independent Broadcasting Authority Act 153 of 1993
This Act regulates broadcasting content of the various broadcasters in South Africa, including both television and radio. In terms of section 2 of the Act, the IBA has to ensure that broadcasters adhere to the Code of Conduct contained in Schedule 1 to the IBA Act. In terms of section 56 of the Act, all broadcasters must adhere to the Code unless they are members of a body that has proved to the satisfaction of the IBA that its members subscribe and adhere to a code. A good example of such a body is the Broadcasting Complaints Commission of South Africa (BCCSA). The BCCSA’s Code is virtually identical to that of the IBA. Both these codes refer to unsuitable types of content that are not allowed, including pornography. The IBA is currently engaged in the legislative process to expand the scope of the Code. The problem is, however, that none of the two codes has any applicability to the Internet as the IBA Act has no jurisdiction over the internet. The result is that as far as this Act is concerned, the Internet is entirely a free-speech environment with no moral parameters.
 
4.2.2 Films and Publications Act 65 of 1996, as amended by the Films and Publications Amendment Act 34 of 1999
The purpose of this Act is outlined as follows:
  • to regulate the creation, production, possession and distribution of certain publications and certain films by means of classification, the imposition of age restrictions and the giving of consumer advice, due regard being had in particular to the protection of children against sexual exploitation or degradation in publications, films and on the Internet
  • to make the exploitative use of children in pornographic publications, films or on the Internet punishable
This Act has no applicability to broadcasters, as they are regulated by the IBA Act as discussed above. The question, however, remains if this Act is applicable to the Internet.
 
Get the Films and Publications Act at
http://www.polity.org.za/govdocs/legislation/1996/index.html
 
Get the Films and Publications Amendment Act at
http://www.polity.org.za/govdocs/legislation/1999/index.html


According to this Act a “film” also means an Internet-based picture as set out in section 1:

“any picture intended for exhibition through the medium of any mechanical, electronic or other device”.
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This broad definition allows the Act to be applicable to the Internet, as it is inherently an electronic device. Furthermore, with regard to the meaning of the word “publication”, its definition in section 1 includes:  
“any message or communication, including a visual presentation, placed on any distributed network including, but not confined to, the Internet”. 
This clearly puts the Internet within the parameters of this Act. In addition, the definition of the term “visual presentation” includes:  
“a drawing, picture, illustration, painting or photograph produced through or by means of computer software on a screen or a computer printout”. 
Once again this definition allows the application of the Act to Internet content.

The Act makes provision for various offences in Chapter 7:

  • Section 25 prohibits the distribution of publications (and thus those distributed on the Internet as well) contrary to classifications. These classifications are outlined in the Schedules to the Act.24 Part of these Schedules refer to child pornography, whether it is a film or a publication, as XX classifications. The same goes for bestiality, explicit violent sexual conduct and other forms of unacceptable sexual conduct. The situation with reference to child pornography is especially important. It is an issue that society in general, and in South Africa too, feels very strongly about. Therefore it has become of paramount importance to stop any creation, dissemination and possession of child pornography. The Act assists in this regard by way of section 25 and Schedules 1 and 6, wherein distribution is made an offence.
  • Section 26 prohibits the exhibition, distribution or advertisement of films classified in terms of Schedules 1 and 6.
  • Section 27 prohibits the possession (also meaning production, import and possession) of certain films and publications referred to in Schedule 1 (1) (a) read with Schedule 5, and Schedule 6 (1) read with Schedule 9 (child pornography). Previously this Act did not make provision for prohibiting possession, exhibition and distribution of child pornography via computers and the Internet, but has subsequently been amended to draw these mediums into the ambit of the Act. Recently a Pretoria administrative clerk was arrested for possession of child pornography he had downloaded from the Internet.25 This was the first arrest of its kind in terms of the provisions of the Act.  

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It is therefore clear that Internet content, in terms of moral and legal acceptability in South Africa, is extensively regulated and that persons contravening the provisions within South Africa’s territorial boundaries can be prosecuted. Jurisdictional anomalies exist where child pornography or any other classified material is disseminated from computer servers outside of South Africa. Only persons receiving it in South Africa can be prosecuted. At least here is an effort to regulate Internet content. It is envisaged that more legislation will follow in the future to close up any other loopholes in the legal regime.26
4.3 Commerce
E-commerce has become an integral part of the cyber world but is still mostly an unregulated landscape. Immediate questions that spring to mind concern the enforcement of contracts concluded on the Internet and taxation issues.
 
Most of these aspects are dealt with in other parts of this book, and it is sufficient to say that South Africans who have a web presence can become liable in foreign jurisdictions if they do not make sure that they comply in general with certain legal requirements. No international legal regime exists to properly regulate this, and cases are dealt with on an ad hoc basis. South African businesses, however, are afforded some degree of protection from foreign judgments against them, because no foreign judgment for multiple or punitive damages can be enforced by a foreigner in South Africa.
 
As for legal disputes that occur between two parties in South Africa, there should in principle be no reason not to apply the conventional law of South Africa to issues arising from the Internet.
5. Outer space law

The applicable part of outer space law to the Internet is the regulation of communication satellites. These pieces of hardware, which drift in outer space, form part of the backbone of the Internet.

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At the moment South Africa is making use of the PAS 4 satellite in geo-stationary orbit more or less 36 thousand kilometres from earth. This satellite covers the whole of Africa in terms of broadcasting. It uses the KU-band to cover Southern Africa and the C-band to cover the rest of Africa. PAS 4’s life span is coming to an end and soon PAS 7, in an orbital slot next to PAS 4, will be taking over all telecommunication functions.
 
The regulation of the above falls within the ambit of international law, specifically the branch of outer space law.27 It is based on international agreement under the auspices of the International Telecommunications Union.
 
In South Africa one would expect that SATRA and the IBA should have jurisdiction in licensing the use of the radio frequency spectrum from satellites. For this reason it is necessary to analyse the Acts regulating the two main functions of telecommunication and broadcasting.
5.1 Telecommunication
With regard to telecommunication via satellite, it has been established in the above discussion of the Telecommunications Act and its applicability to the Internet that any Internet service provider must apply for a VANS licence. This licence will allow such ISP to provide access to the Internet irrespective of the delivery system. Thus Internet delivery via satellite is regulated within South Africa.
5.2 Broadcasting

With regard to broadcasting, no regulation used to exist for satellite broadcasting. The new Broadcasting Act changed this by enacting the following provisions:

  • In section 1(1)(xxii) “direct to home broadcasting” is defined as: “broadcast via satellite directly to individual users and includes multi-channel satellite distribution.” Thus the Act explicitly indicates that the
    distribution system based on satellite technology will be applicable.
  • Section 4(1) provides as follows: “Any person who intends to provide a broadcasting service, including distribution services whether satellite or terrestrial, or any other form of distribution which offer programming to the public, is required to obtain a licence in accordance with the conditions which the Authority may determine from time to time.”

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Thus any satellite broadcaster must obtain a licence from the IBA before satellite broadcasting may be done into South African territory. As far as the Internet is concerned, it has already been established in the discussion above that the Broadcasting Act has no applicability. Therefore, if television content is transmitted via satellite onto the Internet, then no licence would be needed from the IBA.
6. Conclusion
It is clear that the Internet, being a new creation, introduces novel questions that can sometimes be answered by way of conventional law, but mostly require new legislation to be dealt with appropriately. This will be the case until generic legislation capable of dealing with future developments and contingencies is created.
Author biography  
Anton Alberts grew up in Johannesburg and matriculated from Roodepoort Hoërskool in 1988. Thereafter he enrolled at the Rand Afrikaans University where he obtained his LLB degree and later his Master’s degree in International Law (cum laude). He started his career at the law firm Webber Wentzel Bowens, was subsequently admitted as an advocate, practising in computer/Internet law and entertainment law, and later went on to become a lecturer in law at Technikon Southern Africa. He also lectured on Commercial Law on a part-time basis at the Rand Afrikaans University. Currently Anton is employed at M-NET as in-house legal adviser on entertainment, media and telecommunication law. He is also involved as a legal adviser to Stellenbosch University’s SUNSAT satellite project, specifically in the field of outer space law. He has delivered and published papers on Internet issues and is working on an entertainment law textbook for the South African film industry.

 
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  1. www.broadband.co.za/special/ 990509Duarte2.htm 03/06/1999: Yahoo experiences 65 million page views per day and Infoseek 27 million per day. Even though bandwidth hampers growth, according to Metcalfe’s Law, Internet traffic is doubling every 100 days (Back)
  2. www.broadband.co.za 03/06/1999; 15:41
  3. See www.internet.com for a complete overview of the development of the Internet
  4. Even the mass media is referring to the Internet as a parallel universe. See Fox, J, “Net Stock Rules”, Fortune, June 1999 No.11, p.26
  5. Alberts, A de W, 1998, Corpus Juris Spatiales: A Cosmological Framework for Jurists, LLM Dissertation on International Law, Rand Afrikaans University (Back)
  6. See the following web sites: www.netlitigation.com and www.philipsnizer.com
  7. The only other instant custom process for the creation of new law in humankind’s late history has been the development of international law norms on outer space. Note the similarity with cyberspace: both these spaces are driven by information collation and technology bursts of unknown proportions. For an holistic view on outer space law, see A de W Alberts, 1998, Corpus Juris Spatiales: A Cosmological Framework for Jurists
  8. SATRA is endeavouring to create a common peering point to which all networks in South Africa must be connected, obviating the need to communicate locally via international gateways. This way South African Internet traffic will be kept in the country and thus will minimise the need for international bandwidth.
  9. Kegley, CW & Wittkopf, ER, World Politics, 1989, p. 137, St Martin’s Press Inc
  10. This Act repealed the following Acts:
    The Radio Act, 1952 and the Radio Amendment Acts of 1957, 1962, 1963, 1969 and 1974. This Act further amended the following Acts: the General Law Amendment Acts of 1957, and 1975, the Post Office Act of 1958, the Post Office Service Act of 1974, the Broadcasting Act of 1976, the Legal Succession to the South African Transport Services Act of 1989, and the Independent Broadcasting Act of 1993 (Back)
  11. The radio frequency spectrum is part of the wave spectrum, known as the electromagnetic spectrum
  12. This is the normal voice telephone service available to the public
  13. Section 40(3)
  14. Gordon, BJ, 1998, The Legal Challenge of Regulating the Internet, LLM Dissertation in International Law, Rand Afrikaans University
  15. Ibid (Back)
  16. www.sn.apc.org/sangonet
  17. n 14
  18. Section 5(4)(a)
  19. Section 5(4)(b)(i)
  20. Section 5(2)(b) (Back)
  21. 22 of 1936
  22. 73 of 1976
  23. As amended by Proclamation 55 of 1994, the Independent Broadcasting Authority Amendment Act 36 of 1995, the Independent Broadcasting Authority Amendment Act 4 of 1996, and the Telecommunications Act 103 of 1996
  24. Films and Publications Act 65 of 1996, Schedules 1 to 12 (Back)
  25. The Star, Man Arrested for Taking Porn off Net, 28/05/1999, page 1
  26. For an extensive overview of other legal systems and the efforts to regulate both the backbone and content, see BJ Gordon, 1998, The Legal Challenge of Regulating the Internet
  27. See www.un.org (Back)