ITWeb :Convergence Bill littered with good intentions

Ensuring the letter of the law imparts the spirit of the law is difficult under most circumstances. When it comes to matters concerning information, content and technology, the difficulties are multiplied several times.

Major failing

Probably the biggest disappointment with the draft Convergence Bill is that it does not give the country one over-riding piece of ICT legislation.

Public submissions to the draft Convergence Bill were due on 3 February, and a range of organisations representing the media, publishers, commerce and society drew up responses to a piece of legislation that will have far-reaching consequences.

There is little doubt that the Bill is well-intentioned. However, history is littered with examples of laws with a seemingly good intent delivering the exact opposite. Courts and litigants are left to interpret what the drafters of a piece of legislation actually meant and both cling to the word of the law in order to conclude the case as quickly as possible, if not justly.

High hopes

The Convergence Bill got off to a promising start last year, when the convergence colloquium saw government and industry discussing, and largely agreeing, on the need for a “technology-independent” piece of legislation that would be the cornerstone of the sector.

The intentions were good and far-reaching. Firstly, the regulator in the form of the Independent Communications Authority of SA would be given more muscle and become self-funding, then licences would be issued based on services rather than the technology used, and finally, the sector would be freed up to allow for increased competition in areas that were traditionally reserved.

Unfortunately, the drafters of the legislation seemed to have missed the point.

Common theme

Submissions came from the Internet Service Providers' Association (ISPA), the Internet Society of SA (ISOC), the Online Publishers' Association (OPA), the British Chamber of Business in SA (BCBSA), the SA National Editors' Forum (SANEF) and a subsection of that organisation representing online editors specifically.

While all the submissions emphasise various part of the Bill, they do have a common theme although they articulate their viewpoints differently and to various depths.

Definition dispute

All the submissions have problems with definitions; concern and confusion over what will be licensed and what will not, the impact of the Bill on free speech, and general worries that this is an attempt to regulate the Internet that may result in an unenforceable law.

Definitions, the building blocks of legislation, are too broad and confusing, while some important terms such as “infrastructure service” and “content service provider” are not defined. The ISPA's submission says it has assumed this is a drafting error, and that the definition of “communications content application service” is intended to read “communications content service” and that the word “application” should be deleted from the text of the definition.

Those definitions have a direct bearing on the most contentious part of the Bill, that of licensing content providers. The OPA has been quite forthright in its submission and goes straight to the protections of freedom of expression enshrined within Section 9 of the Constitution.

“The OPA is concerned that the Bill seeks to require the licensing of online publishing and information services, and to regulate these services in terms of various sections of the Bill,” the OPA's submission states.

Freedom of expression misgivings

SANEF also expresses misgivings about the Bill's effect on freedoms of expression and speech. It says it is understandable there is a need to regulate broadcasting services where there is a limitation on the resource of frequencies, but there is no such scarcity on the Internet.

Showing that limiting freedoms of expression also limits business growth, the BCBSA states in its submission that the licensing of those who provide “online publishing and information services”, could “seriously impede for financial and other reasons, NGOs such as a chamber of commerce from performing a fundamental chamber duty – to solicit and reflect the views and concerns of member companies in an unbiased and unhindered manner”.

“It could also stifle the chamber's freedom to disseminate commercially useful information, which would have the effect of stifling business growth and development,” the BCBSA says.

Keep officials in check

Scepticism of elected officials and their appointees is a healthy part of a democracy, and ISOC says there should be a mechanism to ensure that new rules and regulations come into effect as quickly as possible in order to keep pace with the progress of technology. However, there needs to be public participation, which includes a deadlock prevention mechanism.

On this topic, the BCBSA says it has “serious concerns that the government is in the process of over-regulating this sector and placing inordinate discretionary powers in the hands of the minister and already overburdened bureaucrats” and notes this could have serious implications for the growth of technology.

ISOC wants to see the Internet left to grow and evolve with little or no government interference. The society says legislation should only be applied to protect the consumer from unfair and unscrupulous business practices, and encourage the right of choice in using technologies and services.

Probably the biggest disappointment with the draft Convergence Bill is that it does not give the country one over-riding piece of ICT legislation. In fact, it overlaps several existing pieces. ISPA points this out, and asks for clarity and possibly an indication if the Convergence Bill will take preference over similar legislation found in the Electronic Communications and Transactions Act and others.

“The Convergence Bill misses a golden opportunity to consolidate the many diverse Acts currently governing the sector into a single omnibus Convergence Act. We urge the department to consider integrating more of the existing legislation into this Bill,” the ISPA statement says.

Time to correct

ISPA's response is the most detailed and comprehensive, while ISOC has examined the Bill's impact from a wider social angle. SANEF emphasises the constrictions on the freedom of speech and is supported by the OPA, which points to the Constitution. BCBSA emphasises businesses' distrust of bureaucracy.

It is doubtful that the Convergence Bill will be placed before Parliament within the next three months, as the general elections race should start to heat up. So there is time to correct the deficiencies and create a model piece of legislation for the country.

(Disclosure: Paul Vecchiatto was involved in the drafting of the ISOC submission and ITWeb publisher and CEO Jovan Regasek was involved with the OPA submission.)