Submission to the South African Law Commission Discussion Paper 149 on Sexual Offences: Pornography and Children

How do we tackle online risks without sacrificing children’s digital futures?

by Anri van der Spuy

As access to the Internet increases in South Africa (albeit slowly), our  children’s exposure to both new opportunities and new risks also increase. This is perhaps why the South African Law Reform Commission (SALRC) is proposing wide-ranging reforms to the country’s sexual offences legislation. But the SALRC arguably needs to strike a better balance between efforts to ameliorate online risks with the crucial importance of protecting children’s rights and increasing their opportunities.

In a hefty 366-page report, the SALRC solicits views on proposed amendments to the legislative framework that currently applies to children in respect of ‘pornography’. The deadline for submissions was 30 July, and forms part of an overarching investigation into the review of all sexual offences found in common law and statute. Research ICT Africa and the Association for Progressive Communications(APC)’s joint submission in response to the Paper is published on respective websites with RIA’s available here.

Among other things, the SALRC’s Discussion Paper 149 is concerned with improving ‘the regulation of pornography, including on the Internet’. But where the Internet is concerned, regulation is more complex than policymakers, legislators or regulators sometimes deem it to be. While access to the Internet might indeed have become access to a plethora of risky opportunities that need to be dealt with from a governance perspective, regulatory responses must be carefully construed and designed to prevent us from curtailing the future potential of the Internet and technologies of the so-called (and contested) Fourth Industrial Revolution (4IR).

Perhaps the most contentious provision of the SALRC’s Discussion Paperis a proposal to criminalise the act of providing a child with access to a device (e.g., smartphone) ‘without ensuring that the default setting blocks access to child sexual abuse material or pornography’.In other words, a service provider, teacher or parent who gives a child access to a mobile phone without ensuring that certain filters are in place, could be guilty of a crime.

The provision – and much of the rest of the Paper – is not only impractical from an implementation point of view, but wholly neglects children’s rights to freedom of association, freedom of expression, and access to information. In trying to protect children, it risks limiting children’s rights in a manner that would arguably fail to meet the Constitutional threshold of being legitimate, necessary and proportional to the aim of the limitation.

Perhaps more worryingly, the SALRC both neglects the potential benefits that accompany Internet use and repeatedly conflates (subjective) risk with (actual) harm. It ignores the fact that access to the Internet can also help children understand and respond to the risks that they face offline and offline, inform them about how to avoid risk, find help when they are exposed to negative online experiences, report abuses, and connect with other children who may have had similar experiences. Indeed, exposure to some degree of risk is crucial to enable children to not only benefit from the Internet, but also to learn critical skills that will enable them to cope with related and future online risks.

But understanding what level of risk is appropriate is difficult because limited work has been done to understand how children access and use the Internet, including their preferences, needs, concerns, perceptions and experiences. Without gathering such data, policymakers are unable to make assumptions about children’s online risks. And they are even less able to develop policies on the basis of assumptions of the supposed risks children may face online.

Even less work has been done to investigate how children in specifically developing contexts like South Africa can use the Internet to understand, seek help, and find solutions for harms they face in both online and offline contexts. This lack of evidence leads to a tendency – as seen in the SALRC’s Paper– to recommend generic or blanket policies that may be insufficient for some children whilst being too restrictive for others. In our submission we therefore strongly encourage the SALRC to support the gathering of more research to provide a proper understanding not only the factors that may make some South African children more vulnerable to harm from online risks, but also the supporting environments they have or do not have to help them deal with potential exposure to risk.

We commend the SALRC’s proposal that warning messages (along with terms and conditions for consent) on online platforms should be made available in countries’ official languages. In South Africa, for instance, nine of the country’s eleven official languages are still underrepresented online (with only English and Afrikaans having a noteworthy online presence). The lack of relevant content in users’ home language is not only a significant barrier to meaningful Internet access and use, but also to enabling children to deal with and understand how to respond to risks.

But we also warn that imposing such obligations on service providers and platforms should be reasonable from a practical perspective. We therefore urge the SALRC to consider differentiating between the size of a provider or platform, the nature of the platform (e.g., platforms that merely host content, platforms that actively create content, or platforms that moderate or curate content) and their related obligations.

Larger, global content providers or platforms should arguably have different (higher) levels of responsibility as they have more resources at their disposal to translate, monitor and/or implement reporting and other responsibilities than smaller or local providers. Otherwise smaller providers will become even less capable of competing fairly with digital giants in the online space; thereby stifling innovation and South Africa’s ability to not only be consumers but also producers in the 4IR. With South African politicians being increasingly enamoured by the ideals and notions of the 4IR, our policymakers cannot risk proposing legislation like that of the SALC that will stop innovation before we even come close to reaping digital dividends.

The SALRC needs an approach that is not only realistic and fair from an implementation point of view, but that also strikes a careful balance between ameliorating risks whilst protecting children’s rights and increasing their opportunities. Ensuring that our children know how to prepare for and deal with the risks that accompany their participation in the 4IR is increasingly important if we want our children to safely succeed in future workforces and digital economies.

Download our full 2019_Submission SALC_APCRIA