Research ICT Africa (RIA) and the Association for Progressive Communications (APC) welcome this opportunity to jointly submit written comments on the South African Law Reform Commission (SALRC) Discussion Paper 149 on Sexual Offences: Pornography and Children, published in April 2019. The Discussion Paper solicits views and comments on proposed amendments to the legislative framework that currently applies to children in respect of "pornography", and forms part of an overarching investigation into the review of all sexual offences found in common law and statute. Among other things, Discussion Paper 149 is concerned with improving "the regulation of pornography, including on the Internet". It covers five areas of concern:
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Access to or exposure of a child to pornography
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Creation and distribution of child sexual abuse material
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Explicit self-images created and distributed by a child
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Grooming of a child and other sexual contact crimes associated with pornography or which are facilitated by pornography or child sexual abuse material
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Investigation, procedural matters and sentencing.
RIA and APC make this joint submission in the public interest to ensure that the internet, and access to it, can be a force for good in South Africa rather than becoming a tool which benefits some and leaves marginalised or vulnerable communities (including children) further behind. We thank the SALRC for its work in compiling the Discussion Paper, and also for providing an opportunity for further input from stakeholders. Like the Commission (c.f. para 1.28 of Chapter 1 of Discussion Paper 149), we firmly believe that public consultation and participation are vital, as no stakeholder group, legislator or regulator can effectively regulate online content or activities alone. Enabling the participation and input from civil society, academia, the private sector, technical community and users (including children) is likely to lead to a much stronger, more effective responses to these evolving problems that accompany our exposure and inclusion in a global information society.
As access to the internet increases in South Africa, users, including children, are exposed to new or different threats and risks in addition to the ones they face "offline". While these risks can be significant, they need to be considered in the context of existing offline risks and broader social changes that span both online and offline contexts. Access to the internet does entail that users (including children) might be exposed to content that might be disturbing. It can also expose children to online harassment or bullying. However, 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.
We are concerned that the Discussion Paper tends to conflate risk with harm and, in doing so, may constrain the development and participation of children through technology in a globalised information society. We are particularly concerned about the proposal to require a default setting on devices to prevent children from having access to content which is (subjectively) deemed to be potentially harmful. This provision is not only technologically determinist and impractical from an implementation point of view, but wholly neglects children’s rights to information, health, expression, and freedom of association. In trying to protect children, it risks restricting children’s rights in a manner that would arguably fail to meet constitutional thresholds of legitimacy and proportionality.
While the Paper acknowledges the fact that some children will react differently to online risk, it still recommends overarching policy responses that will be overly restrictive to most young users while inadequate or inappropriate for others. We believe that harm and risk need to be thoroughly understood in order to design and target encompassing interventions at children who might be more susceptible or vulnerable to risk. One of the most significant policy challenges in curtailing potential risks that accompany children’s (and adults’) digital inclusion is the lack of data pertaining to how children access and use the internet, including their preferences, needs, concerns, perceptions and experiences. Without gathering such data, our policy makers are unable to make assumptions about children’s online risks. Relying on assumptions of the risks children face online without gathering such data means that our policy makers are unable to make informed decisions.
Download the full submission here.