Regulating Freedom of Expression Online

The right to freedom of expression is not absolute, and can be limited in some respects. The internet has revolutionised our ability to exercise this right, as well as the ability to interact with others and shares our views and thoughts.

However, the restrictions and responsibilities that come with the right to freedom of expression can often be ignored when our expressions are online- the ease at which we can publish online, and the extent of coverage available on any given topic or issue makes it significantly harder to monitor these restrictions and responsibilities than is possible in print and broadcast.
Defamation
Defamation is the intentional publication of words or behaviour with the tendency or intention to undermine a person’s status, good name, or reputation. The act of publication is an essential element required before a case of defamation will be tried. As noted already, the ease of publication online can often cause confusion as to what is considered publishing. According to Reihardt Buys in The Law of the Internet – South Africa, publication is presumed in certain instances where it can be expected and is therefore probable that others will hear or read the words; for example, postings to web sites, news groups, and online bulletin boards. Even an e-mail can be considered as a publication, if it can be proved that the private e-mail had been read by a third party. Publication can occur in various forms, such as graphics, audio and video, and not just text. Liability for defamatory matter online can extend past the author to everyone involved in publishing, including ISPs. The liability of ISPs depends on their role and function and role in publication, based on a distinction between author/editor/publisher of information, distributor, or as a common carrier (merely serving as a channel in transmission). Some websites make use of disclaimers to safeguard themselves from legal liability for accuracy of content; in South Africa there is general consensus that a general disclaimer will not protect you from liability for defamatory content. The problem with defamation cases based on online publications centres around not only who to sue, but where to sue.

Hate Speech
Hate groups are taking advantage of anonymity to express hate speech online, where potentially millions of users can be exposed to these views. South Africa is a signatory of the Cybercrime Convention, a protocol that defines and outlaws hate speech on computer networks. However, owing to factors discussed previously on the nature of the internet and availability of information, these protocols and legislation are not always effective. The Anti-Defamation League and Internet Freedom do not believe that speech on the internet should be restricted, and that the solution to hate speech is more speech. Our Constitution clearly states that the right to freedom of expression does not extend to advocacy of hatred, and according to the Films and Publications Act, ISPs with knowledge of offensive content will be guilty of distributing hate speech. However, this act only publishing distribution, possession of such content would not be an offence.

Buys states that due to technological advancement, efforts by government or legislation to regulate speech on the internet are not proving to be effective. Instead, he suggests three alternatives: self-regulation using software programmes that filter out hate speech (such as ADL HateFilter), making use of webmasters to respond to hate speech, and voluntary regulations by ISPs through a Code of Conduct.