The ability to receive and impart information online, in particular through the internet, has become central to the exercise and enjoyment of fundamental human rights and freedoms. It enables people to engage in an array of learning experiences, build information and knowledge societies, foster public and private debate, establish organisations, and contribute to public interest innovation. Through the internet, all people with access, including those in remote and marginalised communities, are better able to exercise and protect their rights and realise their potential. Conversely, those without access are deprived of such protection and enjoyment.
The purpose of this issue paper is to examine the background and legal framework that support a right to universal free access to online information, with a specific focus on the South African context. This paper is structured as follows:
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Part I examines the relation between information rights and universal access to the internet.
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Part II examines the international law position on access to the internet from a human rights perspective.
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Part III examines the South African context, and the regulatory and other initiatives being implemented to promote access to online information.
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Lastly, Part IV examines specific measures that can be implemented in building a model towards universal free access to online information, and the safeguards that should be put in place in doing so.
There are several points that should be noted at the outset. First, as a point of departure, it is noted that this paper focuses specifically on the question of access. While interrelated, matters relating to the availability (such as network infrastructure and equipment), affordability (such as the cost of data), and acceptability (such as the censorship of content online) of the internet fall outside of the scope of this paper, and are not addressed directly.
Second, it should be noted that reference to models for “free” access to online information relates to internet access being free for the user, with the costs associated with access inevitably being passed to other role players. The question of affordability – be it for the user or the telecommunications company – is material to the question of access, and there are currently efforts underway to explore questions of pricing and other relevant matters related to affordability. As mentioned, affordability falls outside the scope of this issue paper, save in respect of the discussion on the need for open and competitive markets, dealt with below.
Third, the rights to freedom of expression and access to information are commonly understood as, and accepted to fall within the category of, civil and political rights (or so-called “first-generation” rights). In general terms, civil and political rights are considered to be immediately realisable, because they do not ordinarily require the same levels of resource allocation as in the case of socioeconomic rights (or “second-generation” rights). In practice, however, the distinction has become blurred between civil and political rights on the one hand, and socioeconomic rights on the other. This paper explores the realisation of access to online information through the framework of progressive realisation, typically applied to socioeconomic rights, and relies on the international and domestic guidance relating to that framework to consider how universal free access to online information can be realised over time in South Africa.
Lastly, this paper highlights certain legislative and policy frameworks, as well as selected initiatives, aimed at promoting access to online information. This is not intended to provide an exhaustive account. In a similar vein, this paper explores two possible mechanisms for how universal free access to online information can be achieved – through free public access to Wi-Fi in public areas, and through zero-rated content – and the considerations, including the challenges, that arise in doing so. However, our focus on these initiatives and measures in no way discounts the value and importance of the others that are being implemented or developed.
This paper was prepared for the Association for Progressive Communications (APC) by Applied Law & Technology (Pty) Ltd, in collaboration with the South African National Editors’ Forum (SANEF), Media Monitoring Africa (MMA), and the Interactive Advertising Bureau of South Africa (IABSA). Financial support was provided by the Ford Foundation.