INDEPENDENT MEDIA

REPORT BY THE INDEPENDENT ADVISORY PANEL ON USER-GENERATED CONTENT

JACQUES LOUW, DARIO MILO, KARIMA BROWN, EUSEBIUS MCKAISER, LATIEFA MOBARA, ANTHONY ROBINSON

FEBRUARY 2015

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Table of Contents

Page No

1. INTRODUCTION ..................................................................................................... 5

2. SUMMARY OF THE SUBMISSIONS ......................................................................10

3. DEFINING UNACCEPTABLE SPEECH ..................................................................15

4. FINDINGS ON THE PREVALENCE OF UNACCEPTABLE SPEECH .....................23

5. THE EFFECT OF PUBLISHING UNACCEPTABLE COMMENTS ..........................24

6. OTHER INTERNET POLICIES ...............................................................................30

7. FINDINGS...............................................................................................................32

8. RECOMMENDATIONS ...........................................................................................36

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Foreword Humankind throughout history has felt that the world is rapidly changing and that it is changing fast. Our general conservatism makes us fear the change. Only a decade or two ago, the Internet, as media, invaded the publishing landscape and we stand in awe at the pace of change. At its core, the Internet contains a platform for communication, dissemination of ideas and information and expression of opinions. The Constitution of South Africa values the right of everyone to freedom of expression, which includes the freedom of the press and other media. “Other media” include the Internet. Freedom of the Internet is therefore a right protected in the Constitution. However, as we know by now, media freedom in a Constitutional state must operate alongside other democratic values of human dignity, equality, life, privacy and other freedoms. The Internet has created an environment where information is sent and received almost simultaneously, and is omnipresent. What someone writes in Hong Kong can be seen by someone in Johannesburg within seconds and sent on around the world innumerable times. Once messages go “viral” they cannot be stopped. We have come to expect speed of dissemination and no restraint on content. It is in this environment that Independent Media’s Internet publisher, IOL, found a conundrum. As a publisher, what does it do with the comment sections under its news articles? How does it apply the Constitutional right to freedom of expression when it potentially impacts on other rights? Dr Iqbal Survé appointed the Independent Advisory Panel on User-generated Content against this background. He was prompted to do so after learning of the hurt caused by user-generated content to one individual. He asked the Panel to advise on whether and, if required, Independent Media can regulate itself when it comes to publishing user-generated content. My fellow panellists and I had limited time and resources to complete this task. Nevertheless, we hope that our limited research and effort will assist not only Independent Media, but also other publishers who may find themselves in the same predicament. For this reason we have asked Independent Media to release this report to the general public, regardless of the limited focus and scope thereof. Our report should not be the last word on this subject and, we are sure, and indeed hope, that others will follow, making more comprehensive factual findings. We humbly hope that our report will contribute a little to other such reports. I wish to thank all the members of the Panel for their support and the individual input that each member brought to the outcome. Jacques F Louw Chairperson of the Independent Advisory Panel on User-generated Content February 2015

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Executive Summary Independent Media's executive Chairperson, Dr Iqbal Survé, established the Independent Advisory Panel on User-generated Content in September 2014 to advise him on policies relating to user-generated content published on the group’s Internet portal, IOL. The scope of the Panel’s work was to enquire into the prevalence of, make findings, report on and make recommendations concerning hate speech, personal attacks and defamatory statements contained in comments by the public on internet websites controlled by Independent Media. In making findings and recommendations, the Panel was asked take into account the Constitution of South Africa, any other relevant legislation and common law, and media policies, including the Constitution of the Press Council of South Africa. After commencing its task, the Panel determined that it would use a definition of unacceptable speech as a guide, which includes the above forms of speech, but also uncivil speech, which would be unacceptable although not unlawful. The Panel asked for a few extensions of the deadline for submitting their report. This was required due to the extended investigations it conducted, and the time needed to debate recommendations and draft the report. Investigations included research of publications on the subject matter outside South Africa, as well as calling for submissions from interest groups inside South Africa. At its conclusion the Panel resolved that:

• It would be desirable to host online comment sections if all competing rights can be optimally balanced so that each right is protected as best as is reasonably possible.

• There is an ethical responsibility of the publisher of an Internet news portal to moderate user-generated content, where such content amounts to unacceptable speech.

• Even though it is not legally required, the best practice for Independent Media would be to moderate content prior to publication by trained staff who are adequately skilled in judging unacceptable speech in accordance with the criteria we have identified in the report. Alternate methods, such as moderating content after publication or only after complaints are received are less desirable, as the unacceptable content detracts from the overall quality of the content published on such website. Types of unacceptable user-generated content could broadly be classified into two categories, namely, legally unacceptable speech and uncivil speech. Legally unacceptable speech in user-generated content includes defamation, unjustified attacks on the dignity of persons, invasion of privacy, hate speech, incitement of violence and harassment. Uncivil speech is harder to define, but clear guidelines should be developed by Independent Media to determine the limited (and necessarily narrow) scope thereof.

• An issue that was debated at length by the panel was what the position should be if Independent Media cannot or does not allocate the resources necessary to engage in effective pre-publication moderation of comments. Although no scientific analysis was undertaken, most members of the panel have in their daily lives experienced most IOL online comment sections to have an unacceptably high content of hatred, racist speech and unlawful speech. The majority of the panel has therefore concluded that in the event that Independent Media cannot engage in effective pre-publication moderation of comments, the online comments sections be shut down. Two panel members, Dario Milo and Anthony Robinson, support this recommendation to the extent that it is factually correct that most IOL online comment sections are filled with hatred, racist speech and unlawful speech.

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The Panel recommends that Independent Media compiles narrowly tailored internal guidelines to define unacceptable speech, which would take into account the law, as summarised in the report, and ethical codes, based on specific criteria which are to be developed and made public, but which would at the same time permit maximum speech and not exclude speech which differs from the views of the publisher. The guidelines should be periodically revisited to ensure they remain relevant, comprehensive and accord with best practice principles of an open and free democracy. The Panel further recommends that Independent Media, once the guidelines have been drawn up, implements a policy of pre-publication moderation using professionally trained staff as opposed to an automated computer system. While at the same time Independent Media should maintain rigorous post-publication moderation in respect of any user-generated content that is found, after publication, to contravene the guidelines. The Panel recommends to Independent Media that it requires commentators to register before they are allowed to post user-generated content. This does not mean that the user cannot post anonymously, but some form of accountability for the user's speech is necessary. The Panel’s findings do not bind Independent Media. Ultimately the Panel’s findings and recommendations are based on its investigations, which were somewhat restrained by time and resources. The Panel has left it open to Independent Media to phase in any programme that it may wish to implement arising from this report.

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REPORT

INDEPENDENT ADVISORY PANEL ON USER-GENERATED CONTENT

1. INTRODUCTION

“Speech becomes democratized because technologies of distribution and transmission

are put in the hands of an increasing number of people and increasingly diverse

segments of society, throughout the planet. More and more people can publish content

using digital technologies and send it worldwide; conversely, more and more people

can receive digital content, and receive it from more and more people”. 1

“Freedom of expression on the Internet, if misused, can be disastrous. The borderless

nature of the Internet and the mask of anonymity, which the Internet bestows upon its

users, can be a wonderful avenue for the spread of harmful propaganda and

dangerous hate speech.”2

Background

1.1 It is hard to imagine a world today without the Internet. Almost every office

worker, mobile telephone user and user of social media accesses the Internet on

a daily basis. Our commercial and social lives seem to depend on it. Large

media houses gradually eased their way onto the Internet, where news is now

available as soon as it happens.

1.2 As a publishing medium, the Internet has also become a domain for formal news

agencies and publishers. Virtually every large publishing house in the world now

has an Internet news site where it publishes news articles.

1.3 As the purveyors of digital news felt their way onto this new medium, one of the

trends that was followed was to combine an element of informal communication

with the formally edited news. This gave rise to a whole new trend in the formal

1 Jack M Balkin ‘Digital Speech and the Democratic Culture: A Theory of Freedom of Expression for the Information Society" 79 New York University Law Review 1, 2004 at 8-9.

2 Substantially the words of Ronald Kakungulu-Mayambala, LL.M. (with Distinction) Lund; LL.B. (Hons.) Mak; Dip. LP. (LDC); Advocate High Court of Uganda & East Africa, in Internet Censorship and Freedom of Expression: A Critical Appraisal of the Regulation of Hate Speech on the Internet, Bileta, Glasgow Caledonian University, 2008.

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media: The comments section at the bottom of every news story containing

user-generated content.

1.4 The practice developed for media organisations to allow its readers to post

comments underneath news and opinion articles, with some articles published

on the Internet eliciting thousands of comments from readers. As was noted by

the World Editors’ Forum in its seminal report published in September 2013,

Online Comment Moderation: Emerging Best Practices, “online comments have

become an essential ingredient of a thriving news publication: readers feel that

they have a right to make their contribution in an online environment that is

becoming increasingly more dialogue–based than one–way broadcasting”.3

Internet Speech

1.5 South Africa has been rated as "free" in respect of the Internet when it comes to

limits on content, violations of user rights and obstacles to access.4

1.6 Expression on the Internet in South Africa is limited only by the common law. In

this respect, Internet speech is treated more generously than content published

by many in the print industry and by broadcasters, who are respectively

regulated by the Press Council and either ICASA or the Broadcasting Complaints

Commission of South Africa. 5

1.7 The Panel conducted its work from the point of departure that freedom of

expression is a fundamental human right as guaranteed by section 16(1) of the

Constitution of South Africa. This right includes the right of the media to publish

online, but also the right of members of the public to comment on news and

opinion published by the media. While there is no obligation on media companies

to permit such comments on websites under their control, facilitating such access

clearly promotes freedom of expression in our democracy, which we will

elaborate on below.

3 Online Comment Moderation: Emerging Best Practices, A Guide to Promoting Robust and Civil Online Conversation, by Emma Goodman, Editors, Alexandra Waldhorn and Amy Hadfield; publisher WAN-IFRA – 2013,p 5.

4 According to the Freedom on the Net 2013, A Global Assessment of Internet and Digital Media, 3 October 2013, Freedom House, edited by Sanja Kelly, Mai Truong, Madeline Earp, Laura Reed, Adrian Shahbaz and Ashley Greco-Stoner. Globally South Africa is scored 13th out of sixty countries on the “freedom chart”.

5 “Electronic publications” of member organisations, such as a news articles published online, are regulated by the Press Council. Clause 5.1.3 of the Constitution of the Press Council.

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1.8 This report addresses how Independent Media should approach user-generated

content of this nature on its websites.

Social Media

1.9 One Internet trend which has developed relatively recently is the rise of social

media websites. Examples of social media websites popular in South Africa are

Facebook and Twitter, having been around for just ten and eight years

respectively. With Facebook having 1.3 billion users and Twitter over 500

million, most whom use it daily, the vastness of this new media form is

immediately apparent. Many news organisations also have Facebook pages,

where users post comments on their Facebook walls. The same principles that

we suggest which apply to user-generated content in comments sections on

websites, apply to comments on a Facebook page.

Establishment of the Independent Advisory Panel

1.10 The Independent Advisory Panel (referred to in this report as “the Panel”) was

established at the request of Dr Iqbal Survé the Executive Chairman of

Independent Media. The panel was established to investigate and report on hate

speech, personal attacks and defamatory statements which are contained in

comments made by the public on Independent Media's websites, and to make

recommendations on the establishment of a policy on how to deal with

undesirable comments.

1.11 The Panel was comprised of two lawyers with extensive media experience,

Jacques Louw and Dario Milo; a journalist with electronic and newspaper media

experience, Eusebius McKaiser; the group executive editor of Independent

Media, Karima Brown; the public advocate from the Press Council of South

Africa, Latiefa Mobara; and the chief technology and digital officer for

Independent Media, Anthony Robinson.

1.12 The establishment of the Panel followed the publication of an opinion piece

written by Kine Dineo Mokwena-Kessi, under the headline, “Black in Cape

Town? Brace yourself”. The article was published in the Cape Argus and on

Independent Media's website ("IOL"). The article related the sixteen-year old

author’s generalised perceptions of racial undertones during her stay in Cape

Town. Following the publication, close to two thousand comments were posted

on IOL ranging from sensitive and critical discussion of the article’s content to

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vitriolic attacks on the author and downright racist remarks. We attach a copy of

the article as well as some of the comments that were posted as Annexure A.

The Issues

1.13 The Panel looked at the following broad questions and issues:

1.13.1 As the publisher of an Internet news site, is there a requirement or need to

invite the public to comment on news articles or issues on the website?

1.13.2 If the publisher of an Internet news site provides a comment section

generating content, what editorial responsibility, if any, rests on the

publisher of the Internet news site in respect of such user-generated

content?

1.13.3 On the assumption that a publisher would apply editorial moderation on its

Internet news website’s comment section, what should the level of

moderation be and how should it be applied?

1.13.4 What user-generated content would be classified as unlawful or uncivil?

1.13.5 Are there any legal consequences in respect of the maintenance of a

comment section with user-generated content on an Internet news site?

The Work of the Panel

1.14 The Panel commenced its work on 12 September 2014.

1.15 The work of the Panel was limited to IOL and Independent Media. In that

respect it is focussed on IOL within the South African environment. However,

during the course of its deliberations, the Panel decided to recommend that its

report be published. The Panel would welcome critical comment on the content

of the report, not only to improve on it, but to assist in the continued development

of policies. The Panel hopes that the publication of the report will contribute to

the development of policies elsewhere, so as to establish universal policies for

how the issue of user-generated content should be dealt with. It also expresses

the humble wish that its work would make some contribution to the already vast

body of work that exists on the subject.

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1.16 At the outset the Panel agreed that in respect of the summary of the practices

currently in place at other media organisations, it could accept the research

report published by the World Association of Newspapers (WAN – IFRA).6

1.17 The Panel immediately invited various media interest organisations to make

submissions. Invitations were also extended to individuals from academic

institutions as well as to other media houses.

1.18 Submissions and contributions were received from:

1.18.1 Media Monitoring Africa;

1.18.2 The Freedom of Expression Institute;

1.18.3 Section 16;

1.18.4 Keith Gottschalk; and

1.18.5 Dr Julie Reid.

1.19 A vast array of academic papers has been published on the subject of hate

speech on the Internet and Internet censorship. The Panel took some of these

opinions into consideration. The Panel also had the benefit of access to

research papers published by organisations such as the World Editors’ Forum

and Freedom House.

1.20 The Panel looked on an ad hoc basis at specific user-generated content that

appeared on various news portals. It did this, however, on an anecdotal and

non-scientific basis. The Panel has not been able to conduct any extensive

empirical analysis of the extent to which unlawful and uncivil speech is prevalent

on Independent Media's websites.

1.21 The Panel did not restrict its work to comments that could be classified as strictly

unlawful, but included comments that may be regarded as uncivil. That said, the

Panel does not advocate any form of increased legal liability on the part of the

media for user-generated content. Its focus is to advise Independent Media as

6 Online comment moderation: emerging best practices, A guide to promoting robust and civil online conversation, by Emma Goodman, Editors, Alexandra Waldhorn and Amy Hadfield,; publisher WAN-IFRA - 2013.

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to how it should, from a policy perspective, approach the issue of user-generated

content.

1.22 After considering the available materials, the Panel debated the issues and

prepared this report.

1.23 The Panel was accorded limited time to conduct its work. In this regard, the

report is limited in its scope.

2. SUMMARY OF THE SUBMISSIONS

2.1 The Panel thanks all the contributors to this process for the time and effort they

took in making submissions.

2.2 The submissions will be available as separate schedules to the report

(Annexures B – F), but the Panel thought it would be useful to summarise the

submission in the report.

Media Monitoring Africa

2.3 Media Monitoring Africa ("MMA") strongly recommends that user-generated

comments should be published. MMA believes that this is one of the advantages

of a digital platform which cannot be ignored is it allows for a reader to become

an 'active user'. This has further advantages in that it allows the news

organisation to track audiences and find out the audience's perspective on

issues.

2.4 Secondly, MMA highly recommends that user-generated comments should be

moderated. MMA believes comments should be moderated in terms of both a

law and ethics perspective. This is important because if user comments are not

moderated in terms of law and ethics this may be viewed as censorship.

2.5 MMA recommends that news organisations should emphasise the following

issues in terms of their moderation criteria:

2.5.1 Hate speech;

2.5.2 Discrimination;

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2.5.3 Criminal activities; and

2.5.4 Personal attacks.

2.6 MMA recommends that each of the above need to be clearly defined in order

that they are in line with law and ethics.

2.7 MMA strongly believes that if a comment is extremely offensive or even illegal, or

it is in violation of the above parameters, the removal of such comment should

not be questioned. MMA encourages that moderation should only happen when

or if content violates the parameters above or where it is obscene, threatening,

harassing, libellous, deceptive, fraudulent, invasive of another's privacy,

offensive, defamatory of any person or illegal.

2.8 MMA further believes that the news organisation is responsible for all content

published on its website.

2.9 In terms of anonymity, MMA recommends that users should agree to give their

names, email address and contact number to news organisations if they wish to

post a comment online. While this may constitute a limitation on the right to

anonymity, it would provide news organisations with the means of ensuring a

level of accountability for comments.

Freedom of Expression Institute

2.10 The Freedom of Expression Institute ("FXI") is of the view that it is extremely

important that news organisation website owners have a clear self-regulation

policy in place that contains user commentary and keeps it within the

constitutional parameters of free speech. This is important in terms of both the

image/brand of news organisations and the need to avoid legislative regulation.

2.11 The FXI outlines a number of positive aspects of user-generated content. These

include:

2.11.1 It allows readers to comment on issues that are current and which affect

them in real time;

2.11.2 It allows for interaction between journalists and the public; and

2.11.3 It enhances quality journalism by providing journalists with technical

expertise they would otherwise not have been aware of.

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2.12 The negative aspects of user-generated content, according to the FXI, include

that:

2.12.1 It may deteriorate into personal attacks. The FXI believes that this is a

direct result of an intolerance of opposing views;

2.12.2 It may facilitate political propaganda;

2.12.3 It may result in "trolling" with the intention to cause disruption and

argument; and

2.12.4 It may attract legal liability.

2.13 Digital media, says the FXI, has grown too rapidly and yet remains unregulated.

There are no checks in places to ensure that expression in an online space is

exercised responsibly. A lack of regulation results in a grey area on who is liable

for user-generated comments which contain prohibited or defamatory speech.

The FXI has identified that website owners are at risk of liability from comments

posted by users on their websites.

2.14 The FXI recommends an approach centred around content moderation and self-

regulating guidelines.

2.15 In terms of content moderation, FXI believes that moderation should be observed

by both the website owners and comment posters in order that comments are

contained within legal parameters. Both parties must work together to promote

engagement in open society and not deter participation. In this way, moderation

will serve as a screening process that steers conversation.

2.16 The FXI recommends the post-moderation method which allows for all

comments made to be posted on the website and only to remove or edit

accordingly those comments which contain illegal material. It is important that

interference by the website controller is kept to a minimum and that only illegal

material is removed.

2.17 FXI believes that it is important to set out clear guidelines so that users

understand what the website will and will not tolerate and the consequences of

breaching these guidelines.

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2.18 The FXI further outlines a number of ancillary mechanisms which can aid and

enhance the process. These include:

2.18.1 Requiring commentators to identify themselves;

2.18.2 Encouraging users to report disruptive commentary;

2.18.3 Constantly keeping users informed about free speech and its parameters;

2.18.4 Encouraging a tone that exhibits respect from all users; and

2.18.5 Encouraging users to proof read their comments before posting them.

Section 16

2.19 Section 16 is of the view that news organisations are constitutionally obligated to

allow user-generated content and that such content enhances the right of

freedom of expression. Furthermore, Section 16 believes that any attempt to not

allow comments or to moderate comments amounts to pre-publication

censorship.

2.20 In terms of liability, the distribution of harmful content is not at the sole risk of the

website owner. Rather, publication of online content can be seen as a joint

process between the content creator, the platform creator, the internet service

provider and the search engine.

2.21 Section 16 is of the view that digital media is the same as traditional media in

many ways. Just as in the case of traditional media, publishing information

without a source is a risk. In the same way, allowing 100% anonymity on a

website means that the website owner assumes 100% of the liability. This

problem can be overcome by limiting the anonymity of users. Section 16

believes that this would constitute a justified limitation on the right to freedom of

expression.

2.22 Section 16 recommends the implementation of a user login system and "vetting"

process. This mechanism would require users to provide their details using a

mobile phone verification process. If this process is put in place, Section 16

believes this may result in limiting, not exonerating, the liability of a website

owner. Section 16 notes, however, that news organisations would be obliged to

protect all personal information of its users.

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2.23 Section 16 suggests a further mechanism for limiting liability is the

implementation of a complaints process.

2.24 Lastly, Section 16 recommends that news organisations may in future consider

amending their terms and conditions of use of the website to include an

acceptance of a regulatory body's code of conduct.

Keith Gottschalk

2.25 Mr Gottschalk recommends that the same norms of etiquette and protocol which

apply to print media should also apply to online news organisations.

2.26 Mr Gottschalk believes that 90 percent of verbal abuse and insults which are

printed online are not sent with the author's full name. Thus he believes that

online news organisations should require every email and SMS which is

published online to contain the user's full name and address. The name should

be published just like in print media. Individuals can apply for an exemption to

this rule on a case-by-case basis.

Julie Reid

2.27 Dr Reid believes that online news platforms should offer the space for user-

generated comments. She believes that the online space is a valuable space for

expression of a diversity of views. News organisations cannot prevent the

discussion from taking place and if a news organisation did not offer this space

to its readers they would simply take the discussion somewhere else, like social

media.

2.28 Dr Reid does not recommend removing comments, even after receiving a

complaint from the public. Dr Reid suggests that what may offend one person

may not necessarily offend another and thus news organisations should be

careful about removing comments based on complaints alone.

2.29 Dr Reid further suggests that online news rooms are self-regulating in that where

user posts a comment which may be racist, that user is usually called out by the

rest of the community and put in their place. Therefore, Dr Reid recommends

that moderation should be kept to a minimum.

2.30 Dr Reid is opposed to the pre-moderation of comments and suggests that this

form of moderation would amount to pre-publication censorship and would

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violate the fundamental principles of freedom of expression. However, in terms

of post-moderation of comments, Dr Reid suggests that this is something which

should happen only in the most extreme and exceptional circumstances.

2.31 Dr Reid makes a practical suggestion for news organisations to consider

introducing a 'terms and conditions' clause in their comments section. Before a

user can post a comment they would have to check a box indicating that they

had been made aware of the code of ethics and give their consent for comments

to be removed if later deemed to be hate speech.

3. DEFINING UNACCEPTABLE SPEECH

Unacceptable speech

3.1 User generated content could include unacceptable speech, which is comprised

of two broad categories, namely legally unacceptable speech and other

unacceptable speech, which we have called in this report “uncivil speech".

3.2 Categories of legally unacceptable speech appear to be most contentious in

relation to user-generated content. A policy on user-generated content would do

well to concern itself not only with these categories of unacceptable speech but

also with ethically unacceptable and editorially unacceptable speech, uncivil

speech. So moderation, whether pre- or post- publication of user-generated

comments, should only take place on the basis that unlawful and uncivil speech

should be removed.

3.3 The Panel considers that, from a policy and reputational perspective, limiting

speech that ought not to be published to unlawful speech might be too narrow for

Independent Media. This is because legal restrictions set the minimum standards

to adopt and would not, for example, necessarily ensure the removal of all

abusive and racist speech. At the same time, the category of speech that is

regarded as “uncivil” should be narrowly and precisely delineated. This is to

ensure that the power of the moderator is not abused and that censorship of

unpopular or critical views expressed in the form of user – generated comments,

is not permitted.

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Legally Unacceptable Speech

3.4 The panel identified six distinct categories of legally unacceptable speech within

the context of the South African legal system. This is not an exhaustive list, but

constitutes the main categories, in our experience.7 These are:

3.4.1 Defamatory speech;

3.4.2 Attacks on the dignity of persons;

3.4.3 Attacks or invasion of privacy;

3.4.4 Hate speech;

3.4.5 Incitement of violence; and

3.4.6 Harassment.

Defamation

3.5 Defamation can be defined as the unlawful and intentional publication of

defamatory statements concerning another which causes reputational harm.8

3.6 A publication is defamatory if the words tend to lower the victim of the publication

in the estimation of right-thinking members of society generally. So one asks,

would the reasonable person reading the comment think less of the subject of

the comment.

3.7 Once a victim (the person or entity defamed) establishes that a commentator (in

this case a commentator and/or IOL) has published a defamatory statement

concerning him or her, there is a presumption that the publication was both

unlawful and intentional.

3.8 A defamatory publication will not be unlawful if the publication if justified.

Currently our law knows the following grounds in which a publication would be

justified:

7 See generally D Milo & P Stein A Practical Guide to Media Law (2013). 8 Burchell J, Personality Rights and Freedom of Expression: The Modern Actio Injuriarum (1998) at 142.

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3.8.1 if the publication is true and in the public interest; or

3.8.2 if the publication constituted protected (fair) comment;

3.8.3 if the publication was made on a privileged occasion (e.g. a court or

parliamentary report); and

3.8.4 in relation to the media, if the publication was reasonable, in that it was

based on reliable information, steps were taken to verify the allegations,

the party criticised was offered a right of reply, etc.

3.9 Many user-generated comments will be opinions being expressed by the

commentators based on the facts or opinions which are set out in the article

being commented upon. In this regard, as the Constitutional Court in the The Citizen v McBride 9 the defence of protected comment is highly protective of

free speech. As Cameron J held for the majority in McBride:

Criticism is protected even if extreme, unjust, unbalanced, exaggerated

and prejudiced, so long as it expresses an honestly-held opinion, without

malice, on a matter of public interest on facts that are true.10

3.10 So it is only a comment that is both defamatory and unlawful (e.g. because it

exceeds the bounds of the protected comment defence above) that will be

regarded as legally unacceptable user-generated content. This rightly gives

extensive breathing space to the expression of opinion.

Dignity harm

3.11 Section 10 of the Constitution explicitly states that "Everyone has inherent dignity

and the right to have their dignity respected and protected."

3.12 In the case of Khumalo v Holomisa,11 the Constitutional Court explained the

difference between an injury to reputation and dignity harm:

3.13 The value of human dignity in our Constitution is not only concerned with an

individual’s sense of self-worth, but constitutes an affirmation of the worth of

human beings in our society. It includes the intrinsic worth of human beings

9 2011 (4) SA 191 (CC). 10 Para 83. 11 2002 (5) SA 401 (CC).

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shared by all people as well as the individual reputation of each person built

upon his or her own individual achievements. The value of human dignity in our

Constitution therefore values both the personal sense of self-worth as well as the

public’s estimation of the worth or value of an individual.

3.14 Harming a person's dignity without justification (such as truth and public interest)

may constitute the crime of crimen injuria - the act of unlawfully, intentionally and

seriously impairing the dignity of another. It may also constitute a civil wrong

based on unlawful insult. For example, in a recent case, the Supreme Court of

Appeal ruled that a person was rightly convicted of crimen iniuria for shouting

"Julle f***ing kaf***", saying "such conduct seeks to negate the valiant efforts

made to break from the past and has no place in a country like ours which is

founded upon the democratic values of human dignity, and the advancement of

human rights and freedoms."12

3.15 However, the law will only regard speech as unacceptable in this context if the

plaintiff proves he or she was subjectively insulted by what was said, in

circumstances where the reasonable person would also (objectively) have felt

insulted. The test is both a subjective and an objective one. And moreover, for

the speech to be unlawful, there will be no justification - such as truth and public

interest or fair comment - which applies.

3.16 Speech that unlawfully harms a person's dignity is thus another category of

legally unacceptable speech. It is also a category that would often apply to user-

generated content.

Privacy

3.17 Section 14 of the Constitution provides that everyone has the right to privacy.

3.18 A useful definition of privacy was accepted by the Appellate Division in National Media Ltd v Jooste: 13

Privacy is that aspect of life of an individual which entails seclusion from

society. This aspect encompasses all those personal facts which the

individual him- or herself has determined that outsiders should not be

12 Prinsloo v The State [2014] ZASCA 96 at para 20. 13 1996 (3) SA 262 (SCA).

19

acquainted with, that is to say, in regard to which he or she exhibits that will

that they should be private.

3.19 A person's right to privacy will be protected if he or she has a reasonable expectation of privacy in the circumstances, in relation to the information

revealed. For instance, one's sex life, medical information, financial information,

and home life, are usually categories of information that a person has a

reasonable expectation will be protected from disclosure.

3.20 However, as with defamation, the right to privacy can be overridden. In

particular, if the publication is of public interest, then the publication may be

permissible, even if it invades privacy. An example is provided by the case

involving the Health Minister's medical records, which a court held could be

published by a newspaper because the publication was one of public interest.14

3.21 User-generated content that includes revelations about the private life of the

plaintiff without cause would constitute unacceptable legal speech.

Hate Speech

3.22 Section 16(2)(c) of the Constitution describes hate speech as "the advocacy of

hatred that is based on race, ethnicity, gender or religion, and that constitutes

incitement to cause harm."

3.23 A more expansive definition of hate speech is found in the Promotion of Equality

and Prevention of Unfair Discrimination Act15 ("PEPUDA"). Section 10 of

PEPUDA states as follows:

(1) Subject to the proviso in section 12, no person may publish, propagate,

advocate or communicate words based on one or more of the prohibited

grounds, against any person, that could reasonably be construed to

demonstrate a clear intention to-

(a) be hurtful;

(b) be harmful or to incite harm;

14 Tshabalala-Msimang v Makhanya 2008 (6) SA 102 (W). 15 4 of 2000.

20

(c) promote or propagate hatred. …

3.24 The "prohibited grounds" are wider than section 16(2)(c) of the Constitution.

They are race, gender, sex, pregnancy, marital status, ethnic or social origin,

colour, sexual orientation, age, disability, religion, conscience, belief, culture,

language, and birth.

3.25 Section 12 states that the following is not prohibited as hate speech:

Bona fide engagement in artistic creativity, academic and scientific enquiry,

fair and accurate reporting in the public interest or publication of any

information, advertisement or notice in accordance with section 16 of the

Constitution.

3.26 PEPUDA's definition of hate speech is far wider than the Constitution's. The

Constitution requires a call to hatred which reaches the threshold of inciting

harm, and which is based on four prohibited grounds. PEPUDA covers

publication of material that demonstrates a clear intention to e.g. be hurtful or

harmful (i.e. not narrowly inciting harm), and of course there are a number of

prohibited grounds.

3.27 Hate speech, whether as defined narrowly under the Constitution or broadly

under PEPUDA, will constitute legally unacceptable user-generated content,

unless a defence such as that set out in section 12 of PEPUDA applies.

Incitement of violence

3.28 Section 16(2)(b) of the Constitution states that the incitement of imminent

violence is not a protected form of speech or expression.

3.29 The meaning of 'incitement' is to instigate or actively persuade others to cause

harm.16

3.30 A good example of this kind of unprotected speech occurred during the

controversial display of the artwork The Spear. Enoch Mthembu, a former

spokesperson for a faction of the Shembe church, called for artist Brett Murray to

be stoned to death. Murray successfully obtained an urgent interdict in the

16 Milo D, Penfold G and Stein A, 'Freedom of Expression' in Woolman S, Bishop M and Brickhill J (eds), Constitutional Law of South Africa (2nd edn 2008) Cape Town: Juta and Co Ltd.

21

South Gauteng High Court preventing Mthembu from making further

inflammatory statements and compelling him to retract his statement and

apologise.

3.31 This speech would clearly be legally unacceptable user-generated content.

Harassment

3.32 The Protection from Harassment Act, 17 of 201117 (Harassment Act) defines

harassment as "any conduct, whether it be direct or indirect, that the perpetrator

knows or ought to know will cause mental, psychological, physical or economic

harm or inspires the reasonable belief on the part of the victim that harm will be

caused to a person (referred to as the "complainant") or any member of the

family or household of the complainant or any other person in a close

relationship with the complainant."

3.33 In terms of the Harassment Act, harassment includes:

3.33.1 unreasonable verbal, electronic or other communication, regardless of

whether or not conversation ensues;

3.33.2 unreasonable sending or delivery of letters, telegrams, packages, faxes,

emails to a person, or a related person, and

3.33.3 sexual harassment.

3.34 Thus user-generated content can in principle constitute harassment.

3.35 In addition, bullying (including, arguably, cyber bullying) is a form of harassment

covered by the Harassment Act.

3.36 Speech that qualifies as harassing speech under these definitions would be

legally unacceptable user-generated content.

Other Unacceptable Speech

3.37 The Panel has determined that from a policy as opposed to a legal viewpoint,

certain forms of speech in the comments section may constitute uncivil speech.

17 17 of 2011

22

3.38 Uncivil speech be determined and judged by the prevailing norms of the society

where the speech takes place. That said, it should be narrowly defined to

ensure that maximum freedom of expression is permitted, on the basis that the

law already deals with unlawful speech. An easy example is racist speech – the

law may well permit such speech as protected freedom of expression, and which

does not necessarily meet the threshold of hate speech under PEPUDA or the

Constitution. But that does not oblige Independent Media to carry such speech

on its websites.

3.39 A further example of unacceptable speech that is not unlawful but would be

unacceptable is where commentators use the area reserved for user generated

content to advertise services. A typical example is the type of advertisement that

states: “If you want to earn R5 000 per week working from home, call 082 555

5555.” In our view, advertisements that are inserted into the user generated

content that are reserved for comments are unacceptable.

3.40 What cannot be used as a criterion to moderate speech is speech that the

moderator disagrees with, or deems too critical of public or private power. This

would in our view be an impermissible moderation exercise. This is because, as

Cameron J, Froneman J and Khampepe J explained in the most recent free

speech case of the Constitutional Court:

We have to put up with views we don’t like. That does not require

approval. It means the public airing of disagreements. And it means

refusing to silence unpopular views.18

3.41 It will be necessary for Independent Media to determine speech that, from an

ethical perspective, qualifies as uncivil speech. We do not propose a definition

here. We caution that, however that category is defined, it must be narrowly

tailored to promote freedom of speech and participatory democracy.

18 Democratic Alliance v African National Congress and Another [2015] ZACC 1 at para 126

23

4. FINDINGS ON THE PREVALENCE OF UNACCEPTABLE SPEECH

Internationally

4.1 A localised study was conducted by researchers19 examining the Arizona Daily

Star, the only print daily serving the Tucson, Arizona, metropolitan area of

approximately 1 million residents. The Daily Star has a weekday circulation of

roughly 238,000 readers that grows to 364,000 on Sundays. They chose the

newspaper comment site due to its similarity with other mid-sized newspapers

elsewhere in the United States as well as the fact that it circulated in the

aftermath of a mass shooting that took place in Tucson in January 2011 in which

6 people lost their lives and 13 others were injured. The topic of “civility” became

a talking point in the region. They published their report.20

4.2 The project defined incivility in online comments under name-calling, aspersion,

lying, vulgarity and pejorative speech. Although the study was based on

subjective and broad criteria, it gives an interesting indication, under the wide

definition of the prevalence of unacceptable speech in user-generated content.

For example, the study indicates the source (author) of articles generating

varying percentage of uncivil user-generated comment (ranging from 13.1

percent to 36.8 percent). It further draws comparisons between different topics.

For example, lifestyle articles attract pro rata 14.1 percent of the uncivil

comments whereas politics drew pro rata 25.4 percent. They also find that the

subject of the article determined comment. Thus, 32.7 percent of comments on

articles about President Barack Obama were uncivil, but only 20.1 percent were

in relation to federal government officials.

4.3 It would appear that, in the United States, three topics of hate speech may

feature prominently on internet forums, namely, anti-Semitic speech, hate

speech directed at minorities and hate speech directed at homosexuals21. Most

academic research articles on the subject are not specific to user-generated

content, but also cover hate-groups that are dedicated to promote targeted hate.

19 Kevin Coe, Department of Communication, University of Utah, Salt Lake City, Kate Kenski, Department of Communication, University of Arizona, Tucson and Department of Government & Public Policy, University of Arizona, Tucson, and Stephen A. Rains Department of Communication, University of Arizona, Tucson.

20 Online and Uncivil? Patterns and Determinants of Incivility in Newspaper Website Comments, Journal of Communication (2014) available here : http://nicd.arizona.edu/sites/default/files/Online%20and%20Uncivil.pdf 21 See Alexander Tsesis, Hate in Cyberspace: Regulating Hate Speech on the Internet, 38 San Diego L. Rev.

817 (2001).

24

4.4 In the United States, hate speech has been granted the most generous tolerance

under the First Amendment. The relative freedom in the United States seems to

have led to the imposition of moderation of user-generated comments by some

media houses.22

South Africa

4.5 The Panel has not been able to find comprehensive studies conducted in South

Africa on the prevalence of unacceptable speech in user-generated content.

4.6 The Panellists discussed ad hoc examples of user-generated comments which

indicated some form of prevalence of unacceptable speech on the IOL portal as

well as other news portals. However, this could not be used to form the basis of

any scientific conclusions and further research in this area is desirable.

5. THE EFFECT OF PUBLISHING UNACCEPTABLE COMMENTS

Legal

5.1 It is settled in our law that a publisher who republishes defamatory content which

is authored by another person (even without endorsement) attracts legal liability

in their own right for the republication.

5.2 At common law, the defence of "innocent dissemination" will absolve a person

who participates in the distribution of defamatory matter from liability, provided

that the person can show:

5.2.1 That he had no knowledge of the fact that the material was defamatory;

5.2.2 He acted without negligence; and

5.2.3 The circumstances did not necessitate that an enquiry into the material

ought to have been made.

5.3 The innocent dissemination defence has never been tested in South African law

in the context of user-generated comments. It has however found favour in

some other common law jurisdictions around the world. There are generally

22 See Chapter 6 of this report.

25

three distinct legal approaches which have been taken in law to deal with the

issue of user-generated content. The first, perhaps best exemplified by the

position in the United States in relation to internet service providers, is that of

effectively absolute immunity from liability. The second, exemplified in the

approach of the United Kingdom, is a notice and take down approach (which

effectively does not require pre-publication moderation as a matter of law). The

third approach is one which holds that the publisher of the website is sometimes

liable for user-generated content from the moment that the content appears on

the website. This approach would encourage pre-publication moderation, and it

has been adopted, at least to some extent, by the European Court of Human

Rights.

5.4 Where we use the terms "pre-publication moderation" in this report, we mean

moderation of the user-generated content before it is published. "Post-

publication moderation" refers to moderating only after publication has taken

place, typically because the website has been notified as to the existence of an

unlawful or unacceptable comment.

United States

5.5 Section 230 of the Communications Decency Act of 1996 ("CDA") is a landmark

piece of internet legislation in the United States. Section 230(c)(1) provides

immunity from liability for providers and users of an "interactive computer

service" who publish information provided by others. Section 230(c)(1) provides

that:

"No provider or user of an interactive computer service shall be treated as the

publisher or speaker of any information provided by another information content

provider."

5.6 This clause has in a number of cases provided general immunity for websites

which host user-generated content that is defamatory, deceptive or otherwise

harmful, even if the operator knows that the content is harmful and refuses to

take it down.

5.7 Courts have generally applied a three-pronged test which a defendant must

satisfy in order to gain immunity under section 230(c)(1):

26

5.7.1 The defendant must be a "provider or user" of an "interactive computer

service";

5.7.2 The cause of action must treat the defendant as the "publisher or speaker"

of the harmful information; and

5.7.3 The information must be "provided by another information content

provider”.

5.8 Section 230(c)(1) of the CDA is typical of an approach which is steeped in the

extensive protection which the United States affords to freedom of expression,

an approach which is not being followed in South African law.

United Kingdom

5.9 A second approach, exemplified in the United Kingdom, is to deal with liability for

user-generated content using a post-publication moderation process.

5.10 Section 5 of the UK Defamation Act enacted in 2013 sets up a "notice and

takedown" system for defamation from user-generated content. It provides as

follows:

(1)This section applies where an action for defamation is brought against

the operator of a website in respect of a statement posted on the website.

(2)It is a defence for the operator to show that it was not the operator who

posted the statement on the website.

(3)The defence is defeated if the claimant shows that—

(a)it was not possible for the claimant to identify the person who

posted the statement,

(b)the claimant gave the operator a notice of complaint in relation to

the statement, and

(c)the operator failed to respond to the notice of complaint in

accordance with any provision contained in regulations.

5.11 So a news organisation is only deprived of a defence to a defamation case

based on user-generated content if the claimant could not identify the person

27

who posted the statement, and the news organisation received a notice of

complaint and failed to respond accordingly. And section 5(12) says that the

defence of the news organisation is not defeated even if it moderates comments

before publication.

5.12 The Panel is of the view that the position adopted in the United Kingdom strikes

the best balance as a matter of law between freedom of expression and the

right to reputation. Again, we do not suggest that this means that websites

should not engage in pre-publication moderation based on carefully crafted and

specific criteria; but certainly the law should not compel such moderation.

European Court of Human Rights: Delfi AS v Estonia23

5.13 A different approach to legal liability can be seen in the decision of the European

Court of Human Rights ("ECHR") which dealt with the liability of a news portal,

Delfi AS, for third-party comments made on its website. The ECHR found that a

news portal may be liable for third party comments on its website, unless it has

taken steps to mitigate the possible harm. In this case, the website owner's

safeguards against defamatory user-generated comments were found to be

insufficient.

5.14 This case started with the publication of an article in 2006 concerning a

controversial decision of a ferry company to change its routes and the

implications of this change for conditions on the "ice roads". The story attracted

over 180 comments, 20 of which were insulting towards the majority shareholder

of the ferry company.

5.15 The EHCR examined the steps taken by Delfi to deal with readers' comments.

There were two mechanisms adopted by Delfi: an automatic profanity filter, and

a notice-and-takedown procedure.

5.16 Importantly, the ECHR found that the automatic profanity filter alone was

"insufficient for preventing harm being caused to third persons". Although Delfi

employed a notice-and-takedown system, the ECHR found that Delfi "was in a

position to … predict the nature of the possible comments prompted by it and,

above all, to take technical or manual measures to prevent defamatory

23 No. 64569/09.

28

statements from being made public". It was also important that Delfi exercised

sole control over the publication of the user comments in that the actual authors

of the comments could not modify or delete their comments once posted on the

Delfi news portal. The ECHR found that the automatic filtering and notice-and-

takedown system "did not ensure sufficient protection for the rights of third

persons."

5.17 The ECHR also stated that it would be an onerous and disproportionate task to

expect the complainant to identify the authors of anonymous defamatory

comments given the complainant's lack of resources. Furthermore, the ECHR

held that "it was [Delfi's] choice to allow comment by non-registered users, and

that by doing so it must be considered to have assumed a certain responsibility

for these comments." It therefore held that the domestic court was entitled to visit

liability upon Delfi because, although it acted expeditiously in taking down the

defamatory comments after it had been notified, this step was not sufficient,

against a factual background of the case, to protect the reputation of the

claimant.

5.18 The Delfi case is on appeal and judgment from the Grand Chamber has been

reserved.

South Africa

5.19 South African courts have not yet considered the liability of an online news

organisation for publishing user-generated comments.

5.20 South Africa courts have expressed the view that publishers may attract strict

liability for defamatory comments made by third parties on their websites. This

idea (with which we disagree as a matter of law) was expressed in passing in the

South African case of Dutch Reformed Church v Soknunan24 in which the court

likened a Facebook wall to a noticeboard —

[The Defendant] has created and made available this notice board in a public passage. He then has an obligation to take down those scrappy pieces of paper which are shown to be unlawful in content or impact. He has made available the opportunity for such unlawful content and is, in effect, the publisher thereof – much as a newspaper takes responsibility for the content of its pages.

24 Dutch Reformed Church Vergesig Johannesburg Congregation and Another v Rayan Soknunan t/a GloryDivinee World Ministries 2012 (6) SA 201 (GSJ) at para 49.

29

Commercial

5.21 The publication of unregulated and/or unacceptable comments may attract legal

liability, depending on what regime our courts ultimately decide upon (as

indicated above).

5.22 Generally, some of the most popular news sites in South Africa, including IOL,

practise post-publication moderation at the time of this report, removing

unacceptable comments only after they have been flagged by readers and

subsequently reviewed internally.

5.23 This appears to lead to a number of unacceptable comments on these sites at

any given time.

5.24 A similar approach is used by the most successful international content sites

such as Facebook and Twitter.

5.25 The commercial implications of practising pre-publication moderation (see 7.14),

are as follows:

5.25.1 Additional staff will be needed to perform the pre-publication -moderation.

The task requires legal and ethical training and cannot be done by junior

employees. The smallest viable team would consist of two people to

provide redundancy in the case of annual and sick leave, operating during

normal office hours. The number of articles opened for comments would be

limited to the capacity of the moderation team: we assume that resources

will be allocated to enable pre-publication moderation of all stories where

comments are sought.

5.25.2 Improved systems would be needed to facilitate pre-publication moderation

processes, and also automate and speed up the identification of

unacceptable content. And the pre-publication moderation should be done

quickly, for the comments to retain newsworthiness and enhance the

chances of them being read.

5.25.3 The lower volume of posted and read comments will reduce traffic to the

site in the short to medium term, with negative implications on site ranking

and associated advertising revenue

30

5.25.4 The panel believes that higher quality comments will improve the quality

and hence commercial (advertising) value of the site in the long term, and

also attract new readers. It should be noted this view is unverified. The

Guardian’s executive editor for digital recently described the trend among

some news sites of switching off reader comments as a “monumental

mistake” – saying user interaction is a “huge resource we are largely

ignoring” and news organisations need to do much more in the areas of

community engagement.

6. OTHER INTERNET POLICIES

6.1 The Panel looked at the internet policy on comment pages of News 24, Times

Media, IOL, Daily Maverick and Mail & Guardian.

News 24

6.2 News 24 does not pre-screen or pre-approve any content in the comment

section. However they reserve the right to remove any content in the comment

sections.

6.3 News 24 requires commentators to log-in on the web-site using their Facebook

account.

6.4 Users that are logged-in or those that are not logged in can flag any comments

as abusive through a link provided. The comments are flagged with News24

editors who decide to remove comment if it does not comply with their

requirements.

6.5 News 24 applies the following criteria in judging comment:

6.5.1 Relevance to topic.

6.5.2 Extent to which other users will understand what has been said.

6.5.3 Extent of swear words, degree of insulting language and severity of the

tone of the comment towards a group or individual.

31

Times Media

6.6 Times Live reserves the right, in its sole discretion and for any reason, to prohibit

a commentator from posting any comment on its blog posts, opinion polls and/or

bulletin boards.

6.7 Times Live further reserves the right to change or delete any content on the

website.

6.8 Although not clear from its terms and conditions, Times Live appears not to pre-

screen comments.

IOL

6.9 IOL expressly reserves the right in its sole discretion to affect any amendment or

alteration to the content and information set out in the website.

6.10 According to its terms it allows the public to object to comments and decisions

are taken to keep or remove comments after receipt of complaints.

DAILY MAVERICK

6.11 Daily Maverick has a similar policy to IOL, reserving the right to remove

comments after receipt of complaints.

MAIL & GUARDIAN

6.12 Mail and Guardian policy states that comments first have to be approved by the

editorial team before they appear on the website.

6.13 Users can also report contributions/comments and Mail and Guardian will

provide an explanation, if it is necessary to remove or change published

contributions.

6.14 Mail & Guardian further reserves the right to remove any information or materials

in whole or in part, that, in its discretion, is deemed to be offensive, indecent, or

otherwise objectionable.

6.15 In summary, Mail & Guardian is the only South Africa news website that we have

considered that pre-screens comment, with the other websites applying varying

degrees of control post publication.

32

6.16 The Panel found diverse policies on the international news websites. However,

the Panel found that it was beyond the scope of its mandate to research the

international trends. The Panel did notice a trend amongst some well known

websites to restrict comments, but was unable to determine that it was a general

trend.25

7. FINDINGS

Is there a requirement or need for user-generated comments?

7.1 The Panel concluded that there is a significant free speech benefit to having

comments with articles on the Internet news sites.

7.2 According to the WAN-IFRA report, the following benefits exist in allowing

comments26:

7.2.1 Comments extend dialogue;

7.2.2 Conversations and exchanges with readers help the news publications to

stay relevant;

7.2.3 Reader comments have commercial benefit in that it keeps readers on the

site for longer and it encourages the reader to return to the site to view the

threads of the conversation.

7.3 The Panel based its conclusion that there is benefit in allowing comments upon

the following considerations.

7.4 Newspapers and news websites exist with the purpose to inform, entertain

challenge and facilitate debate.

25 For example, on 20 November 2014, the influential Technical Publication Re/Code in the United States announced that it was closing down its user-generated content facility and moved the facility for comments to social media(http://recode.net/2014/11/20/a-note-to-recode-readers). Reuters, the 141-year old Popular Science and the Chicago Sun-Times have similarly removed online comments from the main news sites. (See http://blogs.reuters.com/great-debate/2014/11/07/editors-note-reader-comments-in-the-age-of-social-media and http://www.popsci.com/science/article/2013-09/why-were-shutting-our-comments) CNN disabled comments on most of its stories in August 2014. However, when editors feel that a particular story could elicit valuable comment, they may switch on the comment section, subject to active editing and moderation. (See http://edition.cnn.com/2014/11/21/tech/web/online-comment-sections/index.html?sr=tw112114trollingcomments430pStoryPhoto)

26 Pages 12 and 13 of the WAN-IFRA report.

33

7.5 Like letters pages in print media, the comments sections on Internet websites

provide the vehicle to facilitate robust debate. However, technology has

overtaken events and allows for almost instant publishing of the debate.

7.6 In light of the popularity of newspapers’ letters pages, it is assumed that

comments sections on news websites could have similar editorial value,

particularly if the comments are of high quality.

7.7 If the quality of the comment is good, it could even have commercial value.

7.8 Most significantly, comment sections would enhance the role that the news site

plays in a participatory democracy. The notion of participatory democracy is one

which lies at the heart South Africa's democratic ideals. The importance of

participation was given prominence in the judgment of Justice Ngcobo writing in

the case of Doctors for Life International v Speaker of the National Assembly and

Others.27 He said the following:

" The participation by the public on a continuous basis provides vitality to

the functioning of representative democracy. It encourages citizens of the

country to be actively involved in public affairs … Participatory democracy

is of special importance to those who are relatively disempowered in a

country like ours where great disparities of wealth and influence exist."

7.9 In the Panel’s view, allowing readers to participate in the debate generated by an

online news or opinion piece is vital to give effect to participatory democracy.

Gone are the days where the media speak and their readers listen. As was

stated in an amicus brief on behalf of leading media organisations in Europe and

the United States in the Delfi appeal, “allowing comments enables readers to

have their voice heard, adds a different dimension to the news and creates a

community of readers around the news outlet”.28

Should user-generated content be moderated?

7.10 The Panel concluded that some form of editorial control should be applied to

user-generated comment as a matter of policy but not as a matter of legal

compulsion.

27 2006 (6) SA 416 (CC). 28 Written comments in the case of Delfi AS v Estonia (Application No 64569/09) dated 6 June 2014, available on

the www.mediadefence.org website.

34

7.11 The print media controls letters pages at a senior editorial level. The reasons

therefor are space constraints, legal risk and also the editorial value of the letters

pages. It is for that reason that letters pages are some of the most read pages in

newspapers.

7.12 The Panel is of the view that the ubiquitous nature of free-for-all comments

detracts from the editorial value, if the content is not maintained at a standard

where it is of value. The difficulty is in defining what constitutes a “valuable”

comment. This speaks to the need for clear terms and conditions and guidelines

that will ensure that no unlawful speech is posted, and that all speech is civil

(which is not to say that speech must be boring, innocuous, balanced,

dispassionate and unemotive – the power to moderate should be exercised

sparingly and only where justifiable). The Panel concluded that un-moderated

user-generated content may also detract from the value of comment as

reasonable readers would not care for, or have the time or inclination, to trawl

though the comments to find the few comments that have value.

7.13 As concluded in the WAN-IFRA report29, the Panel believes that there is

potential commercial value in a comment section. However, due to the reasons

set out herein, the Panel believes that un-moderated comments also detract from

the commercial value of the comment section.

What should moderation entail?

7.14 The Panel found that there are three tiers of possible moderation. These are:

7.14.1 Moderation post-publication. This appears to be the model adopted by

most of the South African media websites we considered, where comment

is removed or taken down once the unlawfulness or unacceptability of the

comment comes to the attention of the publisher.

7.14.2 Moderation in the form of pre-publication approval of the commentator.

Example of this is also found in the News 24 model, where logging on

requires a Facebook account. [This is not moderation in the true sense of

the word, but merely constitutes a limited barrier to enter the comment

section.]

29 See paragraph 7.2.3 above.

35

7.14.3 Moderation before publication. This is the Mail & Guardian model, where a

form of editorial control is exercised before the comment is posted on the

website.

7.15 The Panel concluded that pre-publication moderation is the ideal system. The

reasons for reaching this conclusion are:

7.15.1 The Panel finds the free-for-all comments encourage unacceptable speech

as well as irrelevant and meaningless speech.

7.15.2 The proliferation of unacceptable, irrelevant or meaningless speech

detracts from relevant comments. This has the effect that valuable

comment is buried amongst unacceptable, irrelevant and meaningless

speech causing the reasonable reader to avoid reading the comments or

commenting.

7.15.3 The levels of unlawful speech that may occur in the comments creates a

risk for the publisher, who could potentially be sued or face criminal

charges arising from the unlawful speech. That said, because the state of

South African law is not clear on the issue, we caution that the decision to

moderate pre—publication may also create an additional legal risk, in that

if a comment that is unlawful has been moderated, the media organisation,

will clearly be liable for allowing such a comment to appear. This risk may

not apply, depending on how the law develops, if a decision is made only

to moderate on notice.

7.15.4 Regardless of actual legal risks, the publisher has an ethical duty not to

facilitate the publication of uncivil speech (particularly personal attacks,

comments that unjustifiably reveal personal information (eg phone

numbers etc), and comments that are blatantly discriminatory). This is

particularly the case where the rights of third parties are infringed by the

unacceptable speech.

7.16 The Panel further concluded that, as part of the pre-publication moderation

requirements, a system should be in place where the identities of anonymous

commentators are determinable to the publisher. The reason being that, should

there be any legal consequences flowing from the comments, the commentator

could be traced if necessary. This should not, however, mean that

36

commentators cannot choose to comment anonymously: but they must know

they can be held accountable for their comment in the event of litigation.

7.17 The Panel concluded that pre-publication moderation should be done at two

stages of the process, namely:

7.17.1 An initial systems driven process, where obvious words that indicate

unacceptable speech are eliminated. Software to filter out such words is

widely employed;

7.17.2 An editorial control, where suitable trained and qualified editors vet the

comments for unacceptable speech and editorial value. This is an

important task, which should not be left to a junior employee. It requires

careful judgement, and legal and ethical training.

7.18 The Panel accepts that no system of pre-publication will be foolproof, with

system and human error possible. The Panel concludes that any system

incorporating pre-publication moderation should also facilitate a system of post-

publication moderation, which would include a take-down process where

unacceptable comments have slipped through the cracks.

8. RECOMMENDATIONS

8.1 The Panel recommends that IOL should compile narrowly tailored internal

guidelines that define unacceptable speech. The guidelines should be

periodically revisited to ensure they remain relevant, comprehensive and accord

with best practice principles of an open and free democracy. This guideline

document should be linked to the Independent Media's mission and vision

statement and take account of:

8.1.1 the law;

8.1.2 the ethical and moral environment of South Africa;

8.1.3 the particular sensitivities of the people of South Africa, taking its history

into account;

8.1.4 the secularity of South Africa; and

37

8.1.5 Independent Media’s mission and vision, to help “build and strengthen a

democratic South Africa” and to be a “premium provider of quality content”.

8.2 The Panel specifically recommends that the guidelines steer clear of religion as a

moral basis for its determination. The guidelines must also be drafted so as to

permit maximum speech in the form of user-generated comments, and not to

permit the exclusion of speech which differs from the views expressed by, e.g. a

particular columnist, or Independent Media itself, or views, which are highly and

robustly critical of public and private power, politicians, public officials and public

figures, and business.

8.3 The Panel recommends that IOL re-evaluates its current system-driven

moderation to replace it with a system that is more effective in removing

comment with obvious hate speech terminology and other unacceptable speech.

8.4 The Panel recommends that, once guidelines have been prepared and the

system has been settled, IOL appoints internal moderators who will be able to

vet, in accordance with the guidelines, all comment posted prior to its publication.

The Panel notes in this regard that the WAN-IFRA research from September

2013, which involved interviews with a haven for news organisations across 63

countries (including the Mail & Guardian, News 24 and City Press), found that

there was a relatively even split between those publications that moderate pre-

and post-publication: 38 and 42, respectively, with 16 adopting a mixed

approach. There was also general consensus that by moderating comments,

publications were not limiting the readers’ freedom of speech.

8.5 As part of the system, the Panel recommends that registration of commentators

be facilitated (perhaps through linking to e.g. their social media accounts). As

the Delfi case suggests, this may be important in the event of legal action being

taken, and it ought to also ensure some level of accountability for the comment

that is made, and might therefore enhance the quality of the debate. It is,

however, important that the commentator knows that his right to anonymity will

not be guaranteed in this regard if litigation ensues and so can choose whether

or not to participate in this space.

8.6 The Panel also suggests that IOL should investigate an evaluative system in

respect of commentators, which would over time classify commentators in light of

quality of the comments, thus easing the burden on the editors. For example,

38

rogue commentators could be “blacklisted” and regular commentators with good

track records could be flagged for lessening editorial control. Another option to

carefully consider highlighting in the comment thread those which are considered

most useful for readers, which is also a practice being adopted by some media

organisations, according to the WAN-IFRA research. The Panel leaves it to IOL

to determine how this could be accomplished.

8.7 The Panel did not consider the commercial viability of its recommendations. The

Panel accepts that IOL may find, at the conclusion of the process, that it is not

commercially viable to implement a process of pre-publication moderation.

Although no scientific analysis was undertaken, most members of the panel have

in their daily lives experienced most IOL online comment sections to have an

unacceptably high content of hatred, racist speech and unlawful speech. The

majority of the panel has therefore concluded that in the event that Independent

Media cannot engage in effective pre-publication moderation of comments, the

online comments sections be shut down. Two panel members, Dario Milo and

Anthony Robinson, support this recommendation to the extent that it is factually

correct that most IOL online comment sections are filled with hatred, racist

speech and unlawful speech.

8.8 The Panel accepts that IOL will need time to conduct its investigations and that,

should its recommendations be followed, the process will have to be phased in

over time. The Panel does not intend to be prescriptive as to the timeframe for

the consideration and implementation of its recommendations. The Panel further

believes that a decision on the implementation of the recommendations should

not be delayed for more than a year.

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Black in Cape Town? Brace yourselfAugust 15 2014 at 08:30am

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A barrage of racist remarks was posted on IOL inresponse to a comment piece by teenager KineDineo Mokwena­Kessi.

She's travelled the world, but it’s only whenliving in and navigating Cape Town that 16­year­old writer Kine Dineo Mokwena­Kessidiscovered she was well and truly black

Cape Town ­ One thing that I’ve learnt is that whenasked your opinion on Cape Town, it’s a trap. Don’t befooled by the seemingly sweet old Afrikaans tannie inthe queue at Woolies; it doesn’t matter how cute theforeign dude on the MyCiTi platform is – always be onyour guard.

The “Cape Town question” is delicate and answering itcorrectly is like having Parkinson’s and walking a 50mtightrope above a pit of starving lions.

When people ask me what I think of Cape Town I gothrough the foolproof MFDAR – mental flow chart todetermine the appropriate response:

Is the inquirer Capetonian? – Yes.

RED FLAG! Black or white? White – Abort! Abort! Default to NO mode: unless you have time to engage inan in­depth conversation explaining how you’re not a racist, jump to: “Uhm… well, it’s very beautiful.”

Then proceed to talk about that beautiful hike up Lion’s Head and how beautiful Clifton beach was lastSunday, and (if you’re feeling particularly ambitious) hint at what a beautiful job the DA is doing. In short,everything is just so exasperatingly, insufferably BEAUTIFUL.

Black – Interesting dynamic. Don’t go on a full out Rambo­esque aggressive riff on how fundamentallyracist the “Republic of Cape Town” is. The Black Capetonian is a victim of internalised oppression. It’sfrustrating but forgivable. Default mode: gentle coercion. This is still their home after all.

From Joburg? – Yes. You may just have found a friend, but remain sceptical.

Black or White? White – I wouldn’t risk it. Default mode: tactful. Jump to: “Cape Town is so relaxed so it’sgreat for a holiday.”

Please note: in the case this Caucasian individual is a foreigner, you can play this one of two ways:

* Completely traumatise the German exchange­student who, with the best on intentions, came to save thestarving children.

* Be nice and don’t ruin their holiday. All they wanted was a peaceful day at the beach.

Black – breathe a long sigh of relief, you’re among friends. Default mode: Lift the floodgates of honesty.Tell them about that racist incident at a coffee shop and feel free to omit that joke you’d cautiously addedto make it seem like you weren’t angry about the whole episode when really you were fuming. Exchangenotes on the “blackest” hang­out spots.

Warn each other about where you’re most likely to get (intentionally) bad service. Give them a hug andwallow in the scent of camaraderie and shared experiences – scavenge every ounce of strength in thisencounter.

I admit, it’s not a completely foolproof system but it’s seen some promising results. I didn’t always resort toflow charts to in an attempt at diplomacy. I wasn’t always so cynical; I have Cape Town to thank for that.

My first visit to the city was in April 2011, a year before I moved here from Joburg to join my mother.

I was so very young, so very impressionable, so very excited about the mountains that seemed to go onforever, the ice­cold beaches sprinkled with penguins, the train ride down to Simon’s Town where quirkyvintage shops sprawled out on to windswept cobble streets.

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But what I loved most was the vibe of the city itself. Its infrastructure was impressive enough to beimportant without being intimidating. I’ve never been in a place so quaint and so acutely aware of itsquaintness, presumptuous in its sense of history. It didn’t feel like London where at any moment you couldbe chewed up and spat out for breakfast and eyelids wouldn’t bat.

It didn’t feel fraudulent like Dar es Salaam, a work­in­progress planted on vibrant, dusty, over­crowdedstreets trying to be something it wasn’t.

It didn’t feel anally clean like Geneva and not quite as impractical or anxious as Joburg. Cape Town wascomfortable in its smidgen of self­awareness and confident in its controversy. I really did love Cape Town.But our honeymoon period was short­lived. I think I woke up one day and I knew it wasn’t going to workout.

Betrayal can make you fall out of love just as quickly as you fell in it.

Cape Town is the Matrix and I’m Neo… Dineo. I was just another unconscious mind plugged into thesystem. Asleep and enjoying my slumber at that.

Sure, I noticed that I only had white friends but I didn’t mind. I was at the French School of Cape Town, sowhat did I expect? Besides my friends have always been mostly white so it never occurred to me that I wasperhaps missing out on an entirely different experience, one where I wouldn’t feel like I stuck out so much.I was enjoying my uniqueness.

Sure, I noticed that I received interesting reactions at certain restaurants, but the stares rangingsomewhere between objection and shock didn’t outright bother me. In fact, I found it amusing. Butfollowing in the footsteps of Neo, the day would come when my mind would be unplugged and I would beflushed out of the system for good – and it wasn’t polite about it either. I got slapped in the face byconsciousness and just like that I was propelled into an alternative reality. And I’ve never felt so alone.

I don’t remember the exact moment I became well and truly black, in the conscious sense of the word. Theprocess of gaining consciousness is like those first sickening moments of being on a rollercoaster:gradually going up and up and up, tension building. And just when you think about turning back, you panic– you realise you can’t. That’s when it drops you. And you have no choice but to commit.

Cape Town is harsh like that. It’s a strangely isolating city. Suddenly I was burdened with opinions Icouldn’t voice with my friends in earshot. They were still my friends but now our difference had becomegruelling, almost adversarial.

I started seeing my environment through glasses tainted with criticism. The uniforms the parking marshalswear at the Mount Nelson were racist. Why was Cecil John Rhodes still perched on the UCT steps? Howdo those kids feel about going to a school named after Jan van Riebeeck?

Perhaps it was presumptuous of me to compare myself to Neo. I’m not “the chosen one”, the prophet sentto change the world; change is a collective force. I am simply one infiltrator of the Matrix from the outsidein… I’m still working on the flow chart.

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CyberZen • 6 months ago

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Uh... come on folks.Most of us can recall how difficult it is being 16, searching for identity, the buffeting confusion ofcrystalising sexualtiy, the need for self­expression.Add the stresses of jumping between cities and this is what you get.This could come from anyone of this age in any city in the world.Well­written in places though it may be, the content is all over the place, and the ideas don'tflow in a very organised fashion to an abrupt ending; did the writer run out of time, or just startfeeling a bit better and lose steam after the mini­rant?I'm not a resident of Cape Town, but am a regular visitor. I love the city, warts and all. just like Joburg and Durban.Either way, it's not an uninteresting piece, and certainly provokes some thoughts about theSouth African condition.I'd read this writer's work again. There is promise here that may be realised with the passageof time.In any case, this is what freedom of speech is all about.

What is surprising is that it should provoke such vitriolic exchanges here as it has.So many axes needing grinding ... what's not surprising is that this has caught the eye of

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Géraud Droster Kirjool • 6 months ago> Guest

Horak doesn't sound like a very Cape Townian name. And as it is kind of obscure Iassume its your real name. In fact a quick Google search informs me that it originatesfrom some obscure central European country. Go back home Eurotrash! lol.

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Yvonne Horak • 6 months ago> Géraud Droster Kirjool

YOU have NO history here in W/Cape at all.! Your ignorance you reveal hereproves that. I suppose the names Devilliers, Du Toit, Marais, Anreith,Melck ,DeWet Du Plessis and Koopmans , I suppose, must ALSO be obscure to you andnot a Cape Tonian name, like Horak­ Off course I was not born Horak but alsomarried Horak. Well all those names are in our Ancestry and intermarried.overCenturies ALL recorded from day 1 with dates of arrival and on which ships inCape of Good Hope, dates of marriage and t whom, , dates of births, dates ofdeaths etc.. Perhaps you need to pay a visit to The Koopmans­De Wet Museum( the oldest house Museum in South Africa)in Strand Street. Built by MartinMelck / (ANNA Horak)and occupied by the family and finally last by his greatgrand daughter, socialite Marie De Wet . Her mother was Adriana Horak and herfather Advocate J De Wet. His sister( her aunt) was married to Sir John Truter­Chief Justice of the Cape of Good hope. Marie married Koopman and ­. MarieKoopman­De Wet was the last person to occupy the house. She was highlyeducated and fluent in Dutch, English, French and Italian. Entertaineddignitaries, traveled to Europe and entertained there by Royalty and dignitaries.After her and her sisters death, the house was bequethed as aMuseum..Eurotrash? I doubt very much the likes of you would ever have hadthe privilidge of being invited or to have stepped through their doorfronts andneither would you be today

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Géraud Droster Kirjool • 6 months ago> Yvonne Horak

No one remembers the Frenchmen of Algeria. And know one willremember you people. Your history of violence will be repaid in kindsoon enough.

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Yvonne Horak • 6 months ago> Géraud Droster Kirjool

Dream on ­ not in the W/Cape.Do what you like with the rest of Africa itis a mess anyhow. If all the aid is withdrawn, millions will starve and die.They can thank the Western Word for the HIV treatments to start off withand never mind all the other vaccines.Ebola also comes to mind andthere will be others. If all that AID is stopped and food, well, who needs awar?

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Jayne McElwee • 6 months ago

Very well written! 4

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CosmicTeapot • 6 months ago

I'd like to see a piece ­ obviously devoid of troll­trash, written by a 16 year old Afrikaaner who'swell­traveled too. Anyone?

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flushtwice • 6 months ago

May I say, this is a beautiful written piece despite of the context... In other words (for all thekeyboard warriors out there), Story bad. Writing and vocabulary very good.

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Markish • 6 months ago> flushtwice

I agree, she writes better than I ever could, still this is nothing more than the ramblingsof a 16 year old published in yet another attempt to make white people feel even moreguilty about their whiteness.

Stuff like this reminds me of being at school when nobody wanted to play with the weirdkid so his mum phones up yours to arrange a play date eventually your mum guilt tripsyou into being nice to him, he remains a weirdo and you end up liking him even lessthan before.

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Guest • 6 months ago

quite telling that we can't comment on the think tank vibes.....formulating.....FORMULATING!

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Gray • 6 months ago

While I have no issue with Dineo's description of Cape Town as racist, we are after all theultimate city when it comes to being "on the wrong side of the tracks", I thought I'd encourageher to use more appropriate examples. For example, the fact that no significant move has beenmade to restitute the land forcibly removed from coloured families in District 6 and Constantia.As much as Cecil Rhodes was a thoroughly repellent individual his statue is at UCT becausehe donated the land. And as for the Mount Nelson garb, what is more relevant than itscondescending appearance is how it reflects a general tendency towards job allocation basedon racial lines. Otherwise, well written piece, I'm sure she has a great future as a writer.

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zanzi • 6 months ago

As far as I known, the author is entitled to her opinions even if not everyone agrees with her. Allof us are. Read, comment politely without insulting her or sending her back to 'some darkcorner of SA". It's called FREEDOM OF EXPRESSION. How can there be peace in thiscountry if we do not learn to listen to each other's experience and thoughts ? Where is it writtenthat you have to love EVERYTHING about the city you live in ? Nobody does.

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Rex • 6 months ago> zanzi

exactly, we also have our opinion and are allowed to express it and allowed to disagree 4

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Yvonne Horak • 6 months ago

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We have our history here..Cecil John Rhodes is perched there because he has history hereand YOU have none.! Jan Van Riebeeck school is fine with us that HAVE an ancestry heresince 1652 and we do not need the likes of You and your opinions, with NO Ancestry here tospeak of, to what should be where and named what. A name change is a farce­ meansnothing­ HISTORY remains, Must Jan Van Riebeeck who came here now now also have aname change? to What? One cannot change facts and history­ no matter what is done, it isrecorded. After all Cape Town was never a Black city EVER ,neither was the entireProvince.and has it's own culture. Cape Town and its genuine born and bred have their ownintertwined cultures,food,languages, jokes, traditions. . We do not even know who you are andthat you even "arrived" here and whatever gives you the idea that you will be noticed inRestaurants,Malls, or for that matter anywhere or stand out in a crowd..This has been a tradingpost for centuries and we are used to all sorts of Races and " Visitors" ( BUT We do like themto be just that ­"Visitors" here.) It is actually referred to often as "Tavern of the Seas" being avery old trading route by our Ancestors. We also travel and navigate the World regularly as amatter of fact.. You must surely have realised before, that you are black and have some familyculture/traditions passed on to you ?­ We are quite used to Black people. They have influxedhere for a few decades already. Now if you had been bright blue, it would be a different matter.You would be noticed for sure.We also have German School, Jewish School, French school,

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Black Monkey • 6 months ago> Yvonne Horak

This is what the kid is talking about. You may have arrived in 1652. That doesn'tchange the fact that you're on Black land, ya bish..

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Yvonne Horak • 6 months ago> Black Monkey

What black land? There were no BLACKS as recorded by numerous countries.There were not even any blackcs beyond the fish river they werestill migratingdown­ Sorry Pal you will loose that battle in any World Court /United Nationsbecause recorded history is facts­ your OPINION is bull dust. There were NOBLACKS r Black tribes in W.Province in 1652your ancestors did not even knowit existed. Go spill your bull to 30% illiterates not the Governments of the Word and the recorded manifest, reports,maps in their archives and n the archives here. Are you ignorant or are youstupid?.

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zanzi • 6 months ago> Yvonne Horak

We also "do not even know who you are" Yvonne, or that "you arrived here" !!! Whatkind of an answer was that ? "You have no right to criticize my town or I will screamand kick in anger ?? "If you have a problem to FIT IN, better move on" ??!!! Is that howyou debate with a teenager of a different opinion ? Your words would have had much more weight with less spelling mistakes and lessanger, because you do have a point, about the City's tradition and Kine's own culture,maybe. However, this message as it is just sounds like an hysterical rant. Calm down andlisten. She was treated badly. She can say it. It doesn't mean all the Capetonians areterrible racists, as she also says "most of my friends are white".

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Yvonne Horak • 6 months ago

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> zanzi

Zanzi, you are right people also do not know who I am because people havetheir own communities, social circles family and friends that they associate with,jobs,school obligations with their children , and that keeps them busy enoughwithout having time to even think whether others are discriminating against themor whether they are being accepted or not. That suits me fine because we haveour own and many similar Communities in neighbouring suburbs and Towns thatwe get together with regularly.These local communities can seem closed tooutsiders who do not have anything in common with them as we experiencedourselves . when we stayed in many different Countries with differentcultures.But we soon overcame that as we joined with any expats who hadsimilar cultures and traditions as us.We never took to criticizing theircultures,their language,monuments, their history or the locals by race and wewarned of this before hand and to obey their laws and respect their cultures..Wehad INFLUXED into their environment and WE had to do the adjusting not theborn and bred people there.We did not expect to be welcomed with a big brassband and knew that we would just be another face amongst the milions there,especially in the big Cities in the Far East.We also did not expect any allowanceto be made for us.If we had, we would have been totally disillusioned.We also

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Peter • 6 months ago

Cecil John Rhodes is my hero... He came all the way from Europe to say hello to black people. 6

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Peter • 6 months ago

Puhleaze. She has preconceptions of Cape Town from other racists. Capetonians aren't racist.Even white people get deliberate bad service. That's barman attitude. They only give the prettygirls good service. It's to weed out the ugly ones from the bar. After reading this article, I'vecome to the conclusion that it's the writer herself who is racist and not Cape Town as a whole.You know the saying, "The world is a reflection of your inner self." How you feel about theworld around you, is because of the thoughts that you keep and that affects the way youengage people and how they respond too you.

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Kabelo Mampholo wa TAU • 6 months ago> Peter

Well said.... 8

Marsh • 6 months ago

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How about a piece from a white 16­year old Capetonian about fitting­in in Hillbrow? 19

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Markish • 6 months ago> Marsh

I was once told in the heart of the Kenilworth by a group of 10 or so black men that "thisis no place for white people". Anybody feeling teary eyed?

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Black Monkey • 6 months ago> Markish

they were saving your butt from getting mugged, you idiot.. 2

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CyberZen • 6 months ago> Black Monkey

You said it! With no sense of irony, I suspect. 2

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Markish • 6 months ago> Black Monkey

In Kenilworth? I know it's gone down hill a bit recently but it's still adecent area. Lots of friendly coloureds, never felt unsafe there.. You'renot from Cape Town are you?

This was just another incident of piss cat thug herd mentality actingtough in a big group.

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Guest • 6 months ago

Time to move all my relatives to Kaapstad....the darkies that side seem to be hiding in the notso admirable parts of the city, hence this poor 16 year old beautiful black sister feels isolated.But on second thought, let's rather let whoever feels entitled to conquer the city and province(based on who developed the place, who set their foot first, and what skin colour they were)keep believing their fantasies, but such day­dreamers should understands that mzansi ischanging shape so quick they'll find their kids speaking the language of an ethnic group theyhate wholeheartedly.

Neo my dear, express yourself no matter what dynamics you're faced with.....your president isblack, your afro's cool !!!!

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Black Monkey • 6 months ago> Guest

And she's beautiful.. 1

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Markish • 6 months ago> Guest

Why would you want to move to Cape Town? Why? You obviously don't care for it'shistory you obviously don't like white people why would you want to move to the whitestplace in Africa? You've got the whole Country to yourselves, please leave us alone.You people move all over the world to live among white people and then complain thatthey are racist, surely it would be more logical to just stay away from them, you've gotthe rest of massive country to do with what you will but instead you seem bent onmaking make Cape Town more African, why?

PS the weather here is crap. The wild coast is far more beautiful and has a betterclimate.

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Black Monkey • 6 months ago> Markish

Really now?

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Kabelo Mampholo wa TAU • 6 months ago> Markish

Please visit STATS SA and check the population stats....there's absolutely noway you cannot expect to see an african in africa.

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Markish • 6 months ago> Kabelo Mampholo wa TAU

I'm sorry did I say there was? 2

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Kabelo Mampholo wa TAU • 6 months ago> Markish

Case closed

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Markish • 6 months ago> Kabelo Mampholo wa TAU

Um no not really. I don't see what your reply has to do with mine at all?Could you address some of the questions I asked?

I don’t understand people who move to a new town and then complainabout the people living there. I wouldn't move to Durban and thencomplain that there are too many Indians there and want everybody tofeel sorry for me because of my perception that they treat me differently.

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Black Monkey • 6 months ago> Markish

Its because Indians have no illusion of where they are.. 1

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Bean • 6 months ago> Markish

Leave the Indians out of this 3

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Kabelo Mampholo wa TAU • 6 months ago> Markish

Well in the case of this 16 year old young girl, it is obvious she is stillunder her mother's guardianship, so perhaps there wasn't much ofchoice for her to move there ( and perhaps you also have to come topeace with he fact that you didn't come to africa...you found yourselfhere, so live with it) I know I personally wouldn't want to stay in thewestern cape since I've explored every corner of the province andthere's just nothing there for me irrespective of how many white peoplestay there. So we do agree in that you shouldn't move to a place only tocomplain.

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Markish • 6 months ago

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> Kabelo Mampholo wa TAU

Fair dues. I know you were taking the mick but this line “Time to move allmy relatives to Kaapstad....the darkies that side seem to be hiding in thenot so admirable parts of the city, hence this poor 16 year old beautifulblack sister feels isolated”. Makes me think you were one of those whobelieve Cape Town is too white and should be as African as the rest ofthe Country. I feel for any child who is in a position where she feels likean outsider, she should blame her Mother then for sending her to a whiteschool and moving to the whitest part of the continent. I know I didn’tmove to Africa, what I’m trying to get across is that we didn’t ask to beborn here. Some of us realise that we aren’t really Africans and neverwill be.We have our own way of life of which we are proud of and ant topreserve. We are different not only because of skin colour but for avariety of reasons of which I am sure you are aware. If I could rewritehistory I’d stop Europeans from ever setting foot on this continent. Ibelieve that racism/prejudice whatever you want to call it will always bearound, people of different ethnicities will always be conscious of the factthat they are different. People will always feel the need to belong, it’scompletely natural to want live among people with whom you share

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Black Monkey • 6 months ago> Markish

Wow.. He saw the light..

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Guest • 6 months ago> Markish

Very well said, it's like being fat in a gymnastics class...you become avictim without being victimised.

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Kabelo Mampholo wa TAU • 6 months ago> Kabelo Mampholo wa TAU

Markish, it's actually unlike me to debate about race, so I hope one dayyou will enjoy peace of mind and not feel like "WE PEOPLE" are alwaysfollowing you around. God bless

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Marsh • 6 months ago

The reason some black people dislike Cape Town is because the DA is in charge and CapeTown is in a far better state than any of the other cities/provinces. They confuse their ownprejudice with their inability to fit in, which many people who move to Cape Town experience.

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Residents accused of beating up guard366 comments • 4 hours ago

ANTI GOVT CORRUPTION — step one .. laycriminal charges .. step two sue the homeowner for civil damages .. step three …

Arquette makes most of Oscar platform11 comments • 6 hours ago

PaleWhiteMaleButColourBlind — OK ... Weneed more women doing bomb disposal..and landmine recovery.

Zuma poison claims ‘malicious gossip’169 comments • 4 hours ago

Sipho van de Merwe — I'm very disappointedat Ma­Ntuli, such a simple task and shedidn't even up the dosage. …

Sayed to lead Cape’s ANCYL68 comments • 2 hours ago

Craig — The only reason this muslim boywas elected is try and get the muslim vote inCape town...nothing to be proud of …

ALSO ON INDEPENDENT ONLINE

• 12

•

Black Monkey • 6 months ago> Marsh

Trash talk belongs in the bin..

•

Marsh • 6 months ago

"I was so very young, so very impressionable, so very excited.." ­ lol! You're 16 sweetheart! 10

•

As a matter of fact • 6 months ago

"Why was Cecil John Rhodes still perched on the UCT steps? How do those kids feel aboutgoing to a school named after Jan van Riebeeck?" You see, here's your problem... You want tocome and live in the most successful province in South Africa, probably the best­run provincein the whole of Africa ... and you demand it scraps its history, and destroys all the buildingblocks that made it a great city. Apparently, only when whites give up their identity, theirhistory, and their success at First World administration, will the likes of you be happy. Thenyou could live happily non­racial/contentedly black in another African failed province. Maybeyou should go to Eastern Cape, that's just over the border. You may find your spiritual home­failed province there. No 'nasty' reminders of Rhodes or Van Riebeeck. Or maybe you'll justgrow up, after all you're only 16. (I'm not a Capetonian by the way, but it is certainly theprovince I aim to retire in... in a bid to flee the decay of Gauteng and KZN).

20

•

Black Monkey • 6 months ago> As a matter of fact

You idiot. The whole of South Africa was under one white administration. Your forefathers had way too much fun and forgot to check themselves..that how the high whiteand mighty fell and got demoted to one province.. Then you come tell me about history..smh.. KZN or Gauteng are only decaying because of the holes you left on the groundwhile mining every ounce of mineral. Otherwise, they're both doing better than they everdid under any white admin..

1

•

Markish • 6 months ago> As a matter of fact

There is a tiny institution in Grahamstown you might have heard of called Rhodesuniversity, I imagine they'll want to change that soon, then soon after the settlersmonument will be destroyed. I'm surprised it hasn't been vandalised yet. This would behard to take but I'd be ok with it so long as they just leave us alone in the WC..

2

•

Rodney Ngwenya • 6 months ago

Another race war! this race issue really has to stop. It doesn't matter whose right or wrong,after all it is not for any human being to judge. I am hopeful for a tomorrow without racial war. Iwould like to end by saying that both black and white are to be blamed for racial criticism butwe can still work on it. I know it is not easy to change the mindset of old folks (from bothparties) but it is not too late for young South Africans to work on it.

To Dineo, sorry to say this but I think your article is as racist as your experience. All I'm sayingis; don't argue with a fool (racist tendencies) because people may not see the difference.

24

•

Markish • 6 months ago

If it weren't for Cecil John Rhodes and Jan Van Riebeeck 90% of white South Africans wouldnever have been born.

3

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© MMA Submission to the Independent Newspapers User-Generated Content Panel 1

Promoting human rights and democracy through the media since 1993

PO Box 1560, Parklands, 2121 • Tel +2711 788 1278 • Fax +2711 788 1289

Email info@mma.org.za•www.mediamonitoringafrica.org

Attention Dario Milo: dario.milo@webberwentzel.com

3 November 2014

WRITTEN SUBMISSION BY THE MEDIA MONITORING AFRICA (MMA) ON QUESTIONS SET OUT BY

THE INDEPENDENT NEWSPAPERS USER-GENERATED CONTENT PANEL

1. ABOUT MEDIA MONITORING AFRICA

1.1. Media Monitoring Africa’s (MMA) vision is a just and fair society empowered by a free,

responsible and quality media. Through a human rights-based approach, MMA aims to

promote the development of:

Media that is transparent, diverse, ethical and accountable to its audiences;

Critical and constructive communications by the powerful; and;

Informed, engaged and connected citizenry.

1.2. MMA aims to contribute to this vision by being a premier media watchdog in Africa that

promotes a free, fair, ethical and critical media culture. The three key areas MMA seeks to

address through a human rights framework are media freedom, media ethics and media

quality. Established in 1993 to monitor South Africa’s first democratic elections, MMA has

over 21 years of experience in media monitoring and direct engagement with media, civil

society organisations and citizens. MMA is the only independent organisation that analyses

and engages with media according to this framework. In all our work, we seek to

demonstrate leadership, creativity and progressive approaches to meet the changing needs

of the media environment.

"B"

© MMA Submission to the Independent Newspapers User-Generated Content Panel 2

2. INTRODUCTION

2.1. MMA was asked to make a submission to the Independent Newspapers User-Generated

Content Panel. The main aim of the Panel is to report on and make recommendations

concerning hate speech, personal attacks and defamatory statements contained in

comments by the public on internet websites controlled by Independent Newspapers. In our

initial exchange no format for the submission was provided. It was only on the 9th of October

2014 that MMA was made aware of the seven questions that were posed to the Right to

Know Campaign. We found these to be useful as a means of structure and we have

accordingly set out our submission by answering these questions. MMA only answered six of

the questions as the seventh question was already answered in some of our responses. The

deadline of the submission was dated 31 October 2014.

2.2. MMA thanks the Independent Newspapers for the opportunity to make this written

submission and hereby requests an opportunity to make oral representations at such

hearings.

2.3. MMA commends the Independent Newspapers for opening its processes to civil society and

for discussing the hard pressing issue on how to regulate comments made on its online

platforms. We hope this process will be exemplary to other media houses in South Africa

that have not yet initiated some formal regulation around their online commentators.

2.4. We note that despite the questions, the Independent Newspapers already has many of the

systems in place (see Annexure A for the Independent Newspapers comment guidelines).

To this extent, we view the current review by the Independent Newspapers as a means of

strengthening their current processes and systems.

3. MMA ANSWERS THE QUESTIONS AS FOLLOWS:

3.1. Whether a media organisation should publish user-generated comments on news and

other stories published by it?

3.1.1. MMA strongly agrees that user-generated comments are published. We believe that this

is one of the advantages of digital platforms that need not be ignored. It not only

© MMA Submission to the Independent Newspapers User-Generated Content Panel 3

benefits the publication but the audience as well. For the audience, they go from being a

simple reader to being an active ‘user’. In that way they have the potential to easily and

quickly interact with issues of the day and provide their perspective. For the publication,

these comments can be used to track audiences and find out the audiences’ perspective

on issues. In this way such comments have the potential to help media houses gain

some insight as to whether they are meeting the needs and interest of their audiences.

3.1.2. MMA research on international good practice reveals that most online publications have

space for user-generated comments. MMA looked at France, Germany, Spain, United

Kingdom (UK), Argentina, Chile and Mexico (see Annexure B), which all have online

publications that allow for user-generated comments. Even though there are no clear

regulations, most media houses in Africa that we looked at also make provisions for

user-generated comments (see examples of these in Annexure C).

3.2. If so, whether as a matter of law and/or ethics such comments should be moderated and

vetted before they are published - and if so, what criteria should be used to regulate the

moderation?

3.2.1. MMA highly recommends that user-generated comments should be moderated. We also

recommend that they are moderated in terms of both law and ethics. These criteria are

essential because if comments are not moderated in terms of the law and ethics it could

easily be viewed as censorship. The research that MMA undertook revealed a trend

among the publications that moderated user-generated comments.

3.2.2. All publications that moderated their user-generated comments placed emphasis on the

following:

Hate speech;

Discrimination (race, gender, religion and nationality);

Criminal activities (such as fraud or publication of third party personal data);

and,

Personal attacks.

3.2.3. We propose the above among other issues to be central to the moderation criteria to be

developed by the Independent Newspapers. They each need to be clearly defined and

© MMA Submission to the Independent Newspapers User-Generated Content Panel 4

spelled out and they also need to be in line with both media ethics and the law. While

freedom of expression is to be promoted and protected we also acknowledge that the

media operate within certain clear parameters. There is the law and the Press Council

which sets out clearly agreed framework. Accordingly, we do not see any reason why

comments and user-generated content should not be subjected to similar parameters,

especially given that they are being expressed on media companies’ platforms, the

content of which they are ultimately responsible for.

3.3. Regardless of pre-moderation, whether comments should, as a matter of law and/or

ethics, be removed after publication following complaints by members of the public - and

if so, what criteria should be used to regulate such removal?

3.3.1. MMA strongly believes that if a comment is extremely offensive or even illegal, or it

violates similar parameters mentioned above the removal of such a comment should be

unquestionable. MMA notes some of the clauses by El Pais (a Spanish publication) and

The Guardian (a UK publication) – (see Annexure B).

3.3.2. The El Pais clause states that “El Prisa [The Media Group] has the right to withdraw any

content that would infringe any standard of behaviour on our sites and, specially, those

that would violate the respect to personal dignity, that would be discriminatory,

xenophobic, racist, pornographic, that would infringe put at risk youth or childhood,

public order or public security, or that, according to EL Prisa’s opinion, would not be

appropriate to be published”.

3.3.3. Some elements of the El Pais conditions perhaps may, in the wrong hands, be used to

silence dissenting voices, and are perhaps a little too broad. For example "any content

that would infringe or put at risk public order”. This may well not satisfy our own

constitutional protections.

3.3.4. However, The Guardian has 10 guidelines which one needs to adhere to before posting

online comments. Among them includes the following:

“We understand that people often feel strongly about issues debated on the site,

but we will consider removing any content that others might find extremely

offensive or threatening.

© MMA Submission to the Independent Newspapers User-Generated Content Panel 5

Please respect other people's views and beliefs and consider your impact on

others when making your contribution”.

3.3.5. The Guardian guidelines seem to be more practical and also seek to prevent extreme

comments, rather than focus on action after the event. Clearly however they also set

out a path whereby if users do not take the issues they set out into consideration the

comments could then be removed.

3.3.6. MMA proposes that a combination of the criteria as used by El Pais (with some

amendments to the public order section) and The Guardian be used as a basis for the

criteria to be used to determine if a user-generated comment should be removed.

3.4. Whether pre- or post- moderation of comments present any free speech issues?

3.4.1. MMA strongly believes that a publication is responsible for all content published on its

website. This does not only open avenues for lawsuits if comments by its readers are

seen to be defamatory but it also gives the publication the opportunity to protect those

that are using its website. As such, MMA recommends that publications pre- or post-

moderated comments. However, the moderation needs to be done based on a strictly

adhered to criteria. We recommend that the criteria used to moderate comments is

made public and users are completely aware that if their comment meets anything listed

on the criteria it will be moderated.

3.4.2. MMA also submits that any possible moderation of comments that are critical either of

the publication or the author (unless the author is a minor in which case additional

criteria must be considered) are strictly limited and if removed are done so either when

other creditors are also violated or on an exceptional circumstances basis.

3.4.3. We encourage that moderation happens only when or if the content violates the

creative noted above or where it is: obscene, threatening, harassing, libellous,

deceptive, fraudulent, invasive of another's privacy, offensive, defamatory of any person

or illegal. (Please refer to Annexure B for a list of different publications in France, Spain

and the UK and how they moderate comments on their websites).

© MMA Submission to the Independent Newspapers User-Generated Content Panel 6

3.5. How one defines the type of speech, if any, that should be impermissible in comments,

with particular emphasis on hate speech, personal attacks and defamatory statements?

3.5.1. MMA is aware of the Independent Newspapers case where a minor1 was attacked

vigorously by readers after writing about her experience in South Africa. This case is an

example of a type of speech that could be construed as hate speech. Based on this

example and others, MMA encourages the Independent Newspapers to develop a

threshold criteria in terms of the type of speech used on its comments.

3.5.2. These criteria should be in line with the pre- and/or post- moderation criteria. The

criteria should consider the following:

Each case and story to be judged on its merits but with the following factors also

considered;

The age group of the author (minors should be more protected, as they are

afforded additional protections in the law and constitution);

The public standing of the author (for politicians or celebrities or people

regularly in the public eye, the protection can be more tolerant than the criteria

for others, including ordinary citizens. Due to their public standing, politicians

and celebrities should be able to handle and expect more critical and possibly

aggressive comments); and,

The topic by the author (the topic of the story should be mostly relevant if the

author is a victim or witness to the subject they are discussing. Here the

protection of the victim should be prioritised and highly protected). For example

if the author is a victim/survivor of abuse and the piece reveals personal content

then the level for tolerance should be less.

3.6. Whether members of the public who post comments have a right to do so anonymously,

or whether a media organisation can require them to identify themselves?

3.6.1. The issue around anonymity of people that post comments should not be looked at in

isolation to the political atmosphere of any country. In a democratic country where

freedom of expression is supported, it is undoubted that people have a right to remain

1Read the full article here: http://www.iol.co.za/capeargus/black-in-cape-town-brace-yourself-

1.1735771#.VFd6szSUdmO

© MMA Submission to the Independent Newspapers User-Generated Content Panel 7

anonymous. Like most things in any democracy however the right can be limited where

reasonable, essential and where the limitation is proportional to the harm it seeks to

address.

3.6.2. We submit that the African Internet Rights Declaration

(http://africaninternetrights.org/declaration/) be considered in this regard to the issue

of anonymity. The Declaration firmly argues the importance of privacy and freedom of

expression. However, even though people have a right to remain anonymous, like any

other right, they have a responsibility to make sure they do not abuse these platforms

just because they are anonymous. We believe mechanisms can be employed limit this

abuse.

3.6.3. Being able to retain one’s anonymity on the internet is vital, but using a recognised

media brand to air one’s views is a different matter. The question that arises is whether

media companies are able to identify a person where, they for example, post racist

comments and incite harm. We suspect that there are ways and means of tracking users

through their IP address and also their devices.

3.6.4. To track such aspects however would require not only considerable investment in it but

it also arguably constitutes greater limitations on the right for most people to be

anonymous, precisely because the media company would have to track all users’ details

on the off chance one of them violates the conditions. Rather if users wish to make their

voices heard on the media platform they agree to give their details, like name, email

address and contact number of the media houses. Of course they may still lie but there

are ways of verifying email address in standard registration processes.

3.6.5. While this may still constitute some limitation on the right to anonymity it would give

media houses the means of ensuring a level of accountability for comments. It is also to

be considered that media should agree that such information should be used only for

the comments purposes and NOT to be used for marketing or other purposes. It should

also be noted that while this may limit the right the user is not prohibited from having

their say on countless other online platforms. To that extent, we would argue that such

limitations are justifiable and desirable.

© MMA Submission to the Independent Newspapers User-Generated Content Panel 8

3.6.6. We strongly encourage moderation as one of those tools to be used to minimise abuse.

4. CONCLUSION

It is clear from our submission that not only do we believe that user-generated comments should be

moderated but that there is extensive precedent for doing so in ways that both seek to encourage

and stimulate debate and at the same time ensure the interests of the media and the right to

freedom of expression are protected.

A further element to be considered is the volume of comments. Depending on the nature of the

story, user-generated comments can often run into hundreds. It is also not uncommon for media to

shut comments off on stories that may elicit too heated debates or where the line of comments

shows a trajectory tending towards the limits we have noted above. Even before this however, there

are hundreds of comments and it is not easy for these to be suitably monitored by a media house.

Technology can help in this regard and MMA would be happy to discuss the possibilities of how we

could assist in this regard, but the first and best line of defence is often other readers. For this

reason many sites employ a report mechanism that alerts a moderator to a potential problem. It is

essential that such mechanisms are standardised and applied. We note that this is currently the

approach being adopted by the Independent Newspapers.

What is therefore worrying is that so many comments were made about the girl in the article2, and

they were either not reported or allowed to remain. This highlights the need and importance of

moderating comments. Perhaps not pre- publication but certainly immediately post publication. The

distinction may appear small but it is in fact the difference between moderating all content and

moderating content that can be flagged.

In making our submission we have grappled with the reality that in many instances a comment may

be stupid, or offensive, or cycle stereotypes, but it is also a comment that we should generally allow.

Our submission therefore speaks to those situations where the speech clearly violates the suggested

critical guidelines. Where it will be very difficult will be where the content is perhaps offensive but

not illegal or bordering on unethical. It is for those situations that it is essential that there is a

2 Read the full article here: http://www.iol.co.za/capeargus/black-in-cape-town-brace-yourself-

1.1735771#.VFd6szSUdmO

© MMA Submission to the Independent Newspapers User-Generated Content Panel 9

process of moderation that is clearly outlined, transparent and fair and that decides on such

instances on a case by case basis.

FOR MORE INFORMATION PLEASE CONTACT

Carol Mohlala (Researcher)

Email: carolm@mma.org.za

Mobile: 074 690 1023

Thandi Smith-Berry (Senior Researcher)

Email: thandis@mma.org.za

Mobile: 073 470 7306

Ines Gracia (Volunteer)

Email: inessegui@gmail.com

Wellington Radu (Head of Programmes)

Email: wellingtonr@mma.org.za

Mobile: 072 655 3369

William Bird (Director)

Email: williamb@mma.org.za

Mobile: 082 887 1370

© MMA Submission to the Independent Newspapers User-Generated Content Panel 10

Annexure A – IOL Comment Guidelines - http://www.iol.co.za/comment-guidelines-1.1238908 Our comment service is not moderated, but you do have to register to comment. We do act on complaints from readers – please report any comments you feel are offensive. Those comments will be evaluated in the context of the guidelines below, so please bear them in mind when using our service. * Park your flame-thrower at the door. Misunderstandings are possible when we use electronic communication. If you see something that you don't understand please ask questions, rather than accuse or condemn. * Refrain from personal attacks, hate speech (see definition below), racism, bigotry, or profanity, or comments that may expose IOL to defamation lawsuits under South African law (see definition below). * Your comment should be relevant to the original post and subsequent discussion. * IOL reserves the right to close discussion on a particular issue, and to close the entire comments service if necessary. * IOL reserves the right not to open comments on specific stories * Your email address will not be published with your comment, nor will it be published anywhere else. 7. If you want to make a formal complaint about a comment, hover over the comment to activate the Report facility. However, if you think the story itself is incorrect, PLEASE don’t use the comment form to tell us. Rather use our feedback form ((live link to http://www.iol.co.za/feedback)). TROLLS When you suspect that somebody is a troll (someone who comes online to cause trouble), you might try responding with a polite, mild message, or ignore the comment. However, if the person persists and seems to enjoy being unpleasant, the only effective position is summed up as follows: The only way to deal with trolls is to limit your reaction to reminding others not to respond to trolls. HATE SPEECH The South African constitution says (section 16, Chapter 2 – Bill of Rights): 16. Freedom of expression * Everyone has the right to freedom of expression, which includes - freedom of the press and other media; - freedom to receive or impart information or ideas; - freedom of artistic creativity; and - academic freedom and freedom of scientific research. * The right in subsection (1) does not extend to: - propaganda for war - incitement of imminent violence; or - advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

© MMA Submission to the Independent Newspapers User-Generated Content Panel 11

DEFAMATION “The publication of words or behaviour concerning a person that tend to injure the good name of that person, with the intention of injuring that person and without grounds of justification." - Source: Reporting the Courts by Kevin Ritchie. THE LEGALITIES In terms of the user agreement, Independent Online, its subsidiaries, employees, contractors and officers and its editor take no responsibility for the accuracy or appropriateness of any comments on the site. Any opinion expressed by IOL staffers does not necessarily reflect the opinions of Independent Online, its editor, subsidiaries, contractors and officers.

© MMA Submission to the Independent Newspapers User-Generated Content Panel 12

ANNEXURE B – International approach to regulation of user-generated comments

Country Newspaper Pre-

Moderation Post-

Moderation Free speech Identification

Chat option (answer)

Users commenting on other comments

Report abuse

Limited age

Spain Eldiario.es

As long as user respects

conditions of participation

Previous register

Considered as a virtual community: you can follow and be follow by other

users

Subscribers have special

consideration: stands out with special feature

El Pais

As long as user respects

conditions of participation

Previous register:

Considered as a virtual community:

follow users and stories and be

followed

14

Use of an encrypted code to

avoid intruders

El Mundo As long as user

respects conditions of participation

Previous register

Considered as a

virtual community: you can follow and be follow by other

users

By a system of

taps, you can see the ones that get best evaluations

and the ones that mention your own

comments

16

To boost conversation

and exchange of ideas and opinions

© MMA Submission to the Independent Newspapers User-Generated Content Panel 13

Country Newspaper Pre-

Moderation Post-

Moderation Free speech Identification

3

Chat option (answer)

Users commenting on other comments

Report abuse

Limited age

Germany Die Zeit

As long as user respects

conditions of participation

Previous register

By a system of taps, you can see:

All comments/ Staffrecomm./ Usersrecomm

UK The Guardian

As long as user

respects conditions of participation

Previous register

By a system of

taps, you can see: All comments/

Staffreplies/ Guardian picks

16

France Le Monde Since it only allows to comment after having subscribed to the newspaper and paid, the users’ activity is extremely scant

Argentina Clarin No specifications

Previous register

Chile La tercera No specifications

Previous register

Mexico El universal No specifications

Through Facebook account

3Usually, previous register asks for: Nick name / Real name / Gender / Year of birth / Region / Email / Password. The user of most online newspapers creates a personal account from where

he/she can track his/her comments, follow other users or even follow specific stories).

© MMA Submission to the Independent Newspapers User-Generated Content Panel 14

Criteria to moderate comments before being published: SPAIN: Eldiario.es / El mundo

1. It will never be allowed to publish comments that demonstrably boost hate, disdain or discrimination for facts of birth, race, gender, religion, nacionality, opinion or any other personal or social issue. The attempts to alter fraudulently the identity and publish personal data of a third person won’t be either tolerated regardless their intentions.

2. Messages including spam or links to sites having no relation to the article commented and the conversation going on won’t be published.

3. Personal attacks and messages with no rapport to the conversation won’t be allowed. 4. To avoid duplicate comments, we recommend to read the conversation before participating. 5. The user is responsible of all the manifestations on the internet and any other place. 6. The user’s messages don’t have to fit the editorial opinion of this newspaper. 7. The website has the right to delete, for any reason and without previous warning, any information or content created

on the open participation spaces. 8. The website offers an accessible tool to complaint about inappropriate messages and contents. 9. The website declines any responsibility derived from the user’s contents. Being able to interrupt at any moment and

without previous warning, temporary or permanently, the right to participate to any user whose contents could be considered as illegal, banned or simply inappropriate.

El Pais

• The user will be able to withdraw, change the content created by her/himself on Prisa (the media group) sites.

• Prisa has the right to publish these contents, as well as to change or edit them.

• Prisa has the right to withdraw any content that would infringe any standard of behavior on our sites and, specially, those that would violate the respect to personal dignity, that would be discriminatory, xenophobic, racist, pornographic, that would infringe put at risk youth or childhood, public order or public security, or that, according to Prisa’s opinion, would not be appropriate to be published.

• Prisa has the right to deny or withdraw the access to any of its sites and services without the need to prevent to those users that infringe the general conditions of use.

UK: The Guardian

• We, or authorised third parties, reserve the right to cut, crop, edit or refuse to publish, your content at our or their sole discretion.

• We may remove your content from use at any time.

• You warrant that the content you submit to us is not obscene, threatening, harassing, libellous, deceptive, fraudulent, invasive of another's privacy, offensive, defamatory of any person or illegal.

• You warrant that the content you submit to us does not infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary or privacy right of any party or individual.

• You agree not to:

o Post content which is deliberately intended to upset or harm other users;

o Use the Guardian Site to post or otherwise transmit content that victimises, harasses, degrades, or intimidates an individual or group of individuals on the basis of any impermissible classification, including, without limitation, religion, gender, sexual orientation, race, colour, creed, ethnicity, national origin, citizenship, age, marital status, military status or disability;

© MMA Submission to the Independent Newspapers User-Generated Content Panel 15

o Post or otherwise transmit any content that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of the Guardian Site or any computer software or hardware or telecommunications equipment;

o Upload or otherwise transmit any content, or take any other actions with respect to your use of the Guardian Site, that would constitute, or would otherwise encourage, criminal conduct or give rise to civil liability; or,

o Use the Guardian Site for commercial purposes, including, without limitation, submitting any material to solicit funds or to promote, advertise or solicit the sale of any goods or services.

The Guardian states more concretely: Community standards There are 10 simple guidelines which we expect all participants in the community areas of the Guardian website to abide by, all of which directly inform our approach to community moderation (detailed below). These apply across the site, while moderation decisions are also informed by the context in which comments are made.

1. We welcome debate and dissent, but personal attacks (on authors, other users or any individual), persistent trolling and mindless abuse will not be tolerated. The key to maintaining the Guardian website as an inviting space is to focus on intelligent discussion of topics.

2. We acknowledge criticism of the articles we publish, but will not allow persistent misrepresentation of the Guardian and our journalists to be published on our website. For the sake of robust debate, we will distinguish between constructive, focused argument and smear tactics.

3. We understand that people often feel strongly about issues debated on the site, but we will consider removing any content that others might find extremely offensive or threatening. Please respect other people's views and beliefs and consider your impact on others when making your contribution.

4. We reserve the right to redirect or curtail conversations which descend into flame-wars based on ingrained partisanship or generalisations. We don't want to stop people discussing topics they are enthusiastic about, but we do ask users to find ways of sharing their views that do not feel divisive, threatening or toxic to others.

5. We will not tolerate racism, sexism, homophobia or other forms of hate-speech, or contributions that could be interpreted as such: We recognise the difference between criticising a particular government, organisation, community or belief and attacking people on the basis of their race, religion, sex, gender, sexual orientation, disability or age.

6. We will remove any content that may put us in legal jeopardy, such as potentially libellous or defamatory postings, or material posted in potential breach of copyright.

7. We will remove any posts that are obviously commercial or otherwise spam-like. Our aim is that this site should provide a space for people to interact with our content and each other, and we actively discourage commercial entities passing themselves off as individuals, in order to post advertising material or links. This may also apply to people or organisations who frequently post propaganda or external links without adding substantively to the quality of the discussion on the Guardian website.

8. Keep it relevant. We know that some conversations can be wide-ranging, but if you post something which is unrelated to the original topic ("off-topic") then it may be removed, in order to keep the thread on track. This also applies to queries or comments about moderation, which should not be posted as comments.

9. Be aware that you may be misunderstood, so try to be clear about what you are saying, and expect that people may understand your contribution differently than you intended. Remember that text isn't always a great medium for conversation: tone of voice (sarcasm, humour and so on) doesn't always come across when using words on a screen. You can help to keep the Guardian community areas open to all viewpoints by maintaining a reasonable tone, even in unreasonable circumstances.

10. The platform is ours, but the conversation belongs to everybody. We want this to be a welcoming space for intelligent discussion, and we expect participants to help us achieve this by notifying us of potential problems and helping each other to keep conversations inviting and appropriate. If you spot something problematic in community

© MMA Submission to the Independent Newspapers User-Generated Content Panel 16

interaction areas, please report it. When we all take responsibility for maintaining an appropriate and constructive environment, the debate itself is improved and everyone benefits.

© MMA Submission to the Independent Newspapers User-Generated Content Panel 17

ANNEXURE C – African approach to regulation of user-generated comments

Country Newspaper Pre-

Moderation

Post- Moderation

Free speech Identification Chat option (reply) Users

commenting on other comments

Report abuse

Limited age

Kenya Daily Nation / Standard / The Star / The Sub-Saharan Informer

Although Disqus* affirms that it doesn’t moderate or

censure any comment, it has a list of forbidden behaviors. Besides, the newspaper can

do it. Yet there is no appreciation relating to this on the comment’s interface

Previous register / You can also get in

through social media: FB/Tw/ G+

Name / email /

password/avatar

Any reader can vote up, but to vote down you

have to be registered

13

Ruled by Disqus, a networked community platform, specialized in the design of a comment system for sites

At one tap you can comment a specific story and at the other, you get the top commenters and top discussions on the whole newspaper

Egypt Daily News Egypt Ruled by Disqus

Egypt Today X

X

Identification every time you

comment

Name / email

You can be notified by email if s.o.

replies your comment or posts

a new one

X X

Al-Ahram Weekly X

X

Identification

every time you comment

Name / email

X X X

Nigeria The Guardian X

X

Previous register

(Although currently not

working)

Since it is not working properly, there are no comments and it is not possible to check the features

The Nation Ruled by Disqus*

Tribune Ruled by Disqus*

Punch Ruled by Disqus*

South Africa M&G Ruled by Disqus*

Timeslive To comment on a story you have to send an email to the newspaper. This method may discourage public participation

City Press Ruled by Disqus*

© MMA Submission to the Independent Newspapers User-Generated Content Panel 18

*International platform Disqus https://help.disqus.com/customer/portal/topics/215159-terms-and-policies/articles

Disqus enables online discussion communities, and in doing so, freedom of expression and identity are core values of the Service. There are a number of categories of content and behavior, however that jeopardize the Service by posing risk to users, publishers or third party services utilizing the Disqus platform. Websites or website representatives publishing inappropriate content or exhibiting inappropriate behaviors in connection with their use of the Service, including from the following categories, may have their Disqus account suspended or terminated:

• Blackmail or extortion

• Copyright or trademark Infringement

• Deceitful data collection

• Harm to minors or animals

• Impersonation

• Intimidation of users of the Disqus Service

• Malware

• Privacy violations

• Spam

• Unlawful activities

The above list may be modified or expanded at any time, and individual account deactivation decisions remain at the sole discretion of Disqus.

Yet, they won’t take any action on:

• Trolling (when not otherwise breaking our TOS)

• Annoying commenters

• Comments that you disagree with

• Harsh or absent moderation

We recommend flagging inappropriate comments and reporting these sorts of behaviors to the site moderator. If you're having trouble with the moderation practices of a site, you may consider commenting elsewhere.

They also protect themselves from any potential infraction on copyright.

Executive Committee: Anton Harber (Chairperson), Raymond Louw, Nobuntu Mbelle, Indra de Lanerolle, William

Gumede, Oupa Lebogo, Sam Radebe. Franz Kruger. Acting Executive Director: Sheniece Linderboom

11 November 2014

Attention: Jacques Louw

Chairperson, Policy Panel re user generated comments

Submission by Freedom of Expression Institute to Independent Newspapers

Group: Hate speech, personal attacks and defamatory statements on user

generated comments on websites controlled by Independent Newspapers

Group

1. FREEDOM OF EXPRESSION INSTITUTE

The Freedom of Expression Institute (FXI) herein submits to the Independent

Newspapers Group comment on ‘Hate speech, personal attacks and defamatory

statements on user generated comments on websites controlled by Independent

Newspapers Group’.

The FXI is a not for profit non-governmental organisation which was established in

1994 primarily to promote and advance freedom of expression and associated rights.

The FXI envisions a society where everyone enjoys freedom of expression and the

right to access and disseminate information and knowledge. Our mission is to fight

for freedom of expression and eliminate inequalities in accessing and disseminating

information as well as knowledge in South Africa and beyond.

FXI welcomes this opportunity availed by the Independent Newspapers Group to

make written submissions towards the review of Independent Newspapers Group

online comments policy.

2. INTRODUCTION

Physical Address: 1st Floor, Richmond Forum Building, 18 Cedar Avenue, Richmond, 2092

Postal Address: P.O. Box 30668, Braamfontein, 2017, South Africa

T: +27 (0)11 482 1913

F: +27 (0)11 482 1906

E: fxi@fxi.org.za

W: www.fxi.org.za

"C"

Executive Committee: Anton Harber (Chairperson), Raymond Louw, Nobuntu Mbelle, Indra de Lanerolle, William

Gumede, Oupa Lebogo, Sam Radebe. Franz Kruger. Acting Executive Director: Sheniece Linderboom

The recent shift from news dissemination being an audience based service for

readers to one that is participatory in nature has by no doubt introduced a welcomed

dynamic in terms of the media’s role in the framework of freedom of expression in an

open and democratic society. The role of freedom of expression in a democratic

society is such that it encourages a democracy in which all participate. A

participatory democracy thus calls for constant engagement by citizens on issues of

concern, in a bid too collectively construct solutions, enhance accountability and

receive and impart information that empowers each citizen to fully self-actualize in

society.

USER GENERATED CONTENT

The inclusion of user generated comments therefore places the media in the an even

more central role in the democratic discourse arena, in that not only does it spark the

debate that falls subject to the engagement, but now facilitates that debate.

The positive aspects of user generated commentary in particular for news sites are

numerous, amongst them are the following;

1. Allowance of readers to comment on issues that are current news and that

affect them in real time, i.e. when the matter is still pertinent. They further offer

the users a chance to contribute their voice, opinion and ideas to the

discussion, this way the story evolves from a content piece to an interactive

exchange.

2. Allows to and fro interaction between journalist writers and public, as well as

between the public commenters themselves. A process through which ideas

are developed and in some cases ideas are birthed which will be the subject

of future news pieces.

3. In a lot of cases commentary has been cited to be of such value that it

enhances the quality of journalism by providing journalists themselves with

technical expertise that they would have otherwise not have been aware and

yet falls as part of the subject matter written on.

Executive Committee: Anton Harber (Chairperson), Raymond Louw, Nobuntu Mbelle, Indra de Lanerolle, William

Gumede, Oupa Lebogo, Sam Radebe. Franz Kruger. Acting Executive Director: Sheniece Linderboom

The benefits are indeed many and definitely reveal that commentary does have or at

least has made its case for presence in the news room. However, as a result of the

rapid development of the digital age and space, it presents numerous difficulties as

well.

Best practice in the regulation of online user generated content

The digital space has grown far too rapidly and yet remains unregulated. The space

for expression is wide and yet no checks are in place specifically designated for

online media to ensure that expression is exercised responsibly. In the absence of

specific regulation of the use of the online space (which would cover user generated

online comments) no regulatory mechanism can be looked to, to provide a

framework to guard against commentary breaching any sort of legal parameters that

may be in place.

Best practice in this case is the following:

1. Specific sites set guidelines in place that will ensure the responsible exercise

of the right to free speech on their news websites.

2. In crafting these guidelines guidance should be taken from existing

regulations around freedom of expression. These being;

a. The Constitution of the Republic of South Africa as a point of departure,

and its demarcation of prohibited speech under section 16

b. The Promotion of Equality and Prevention of Unfair Discrimination Act of

2000, as an legislative enactment that deals with equality and hate

speech under section 10

c. The Common laws (delict) of defamation of character

d. The Common law of Criminal defamation

e. Laws that prohibit speech for purposes of National security etc.

The recommendation therefore entails that the sites self-regulate the activity that

occurs on the site and in doing so take particular care to not breach the laws in place

that may apply to what is said on their sites in absence of online media regulation.

This is because though no regulation exists for conduct online, there is no particular

Executive Committee: Anton Harber (Chairperson), Raymond Louw, Nobuntu Mbelle, Indra de Lanerolle, William

Gumede, Oupa Lebogo, Sam Radebe. Franz Kruger. Acting Executive Director: Sheniece Linderboom

bar for persons ordinary and otherwise, from using the above laws to assert their

right where they feel that these have been infringed.

Limitations of regulating online user generated content

The negative aspects of user generated comments, which are somewhat

problematic and therefore raise the question of regulation in this regard, include but

are not limited to the following;

1. The most prominent negative aspect of user generated comments is that they,

majority of the time deteriorate into personal attacks. This in our view is a

direct result of an intolerance of opposing views. It seems participants of news

site debates lack the fundamental understanding that a fruitful and quality

debate is one that contrasts opposing views in a manner that seeks to foster

necessary engagements towards a solution. Primary to this is the need to

hear each (and different) sides of the debate.

2. Comment threads have been known to be used by others to facilitate political

propaganda. In a country such as South Africa where politics either informs or

is constantly the subject of news and hence the debate on comment threads,

it is easy to turn almost any topic to a political debate. Politics in its nature is

conflict ridden and comment threads are no exception for the exhibition of this

tension.

3. The particular problem of “trolling” which entails a deliberate provocation

message to a newsgroup or message board with the intention of causing

maximum disruption and argument which often has no political agenda or is

not related to intolerance is a problem.

The danger with the above negative aspects is that they pose the possibility of

attracting legal liability. As alluded to earlier, this is particularly tricky to deal with in

an otherwise unregulated space.

Legal implications of self-regulating online user generated content

Executive Committee: Anton Harber (Chairperson), Raymond Louw, Nobuntu Mbelle, Indra de Lanerolle, William

Gumede, Oupa Lebogo, Sam Radebe. Franz Kruger. Acting Executive Director: Sheniece Linderboom

The problem that the non-regulation creates is one that leaves a grey area or lack of

clarity on who is liable in the event of comment threads containing prohibited speech

or defamatory comments or any other legal breaches that attract liability. In the

South African context this is unclear. Approaches followed in different countries

make it difficult to establish who exactly should be liable. For example, in the

American system legislation provides that websites cannot be held responsible for

comments made by another person but posted on the news organisations website.

Yet in South Korea for example liability is placed on the website for not removing or

moderating content on its websitei.

In the South African sense therefore we are left in a position in which it would still

deliberate who bears fault for the particular act. For example if a person seeks to sue

for defamation the publication aspect of the elements to prove defamation would be

facilitated by the website and thus would render them jointly liable with the person

exhibiting the necessary intention to defame the aggrieved party. In a hate speech

case it may well be argued that the website is at fault for the publication of words that

could reasonably be construed to demonstrate a clear intention to be hurtful; be

harmful or to incite harm; promote or propagate hatred… Yet in truth, the intention

lies with the writer of the defamatory or hateful comment. This therefore places the

site owners at risk of liability.

In this light, Independent Newspapers seeks guidance on dealing in particular with

the case of comment threads that contain hate speech, personal attacks and

defamatory statements on comment threads. The underlying question the

recommendations should tackle is what is the best way to deal with the problem of

comment threads that present with this problem?

RECOMMENDATIONS

In making these recommendations it is important that these are understood in

context of the news organisations mandate as a media outlet. It must be considered

first and foremost that news organisations are journalist driven ventures whose

mandate includes the observance of the highest journalistic standards and ethics. In

crafting the necessary policy the consideration of the news organisations desired

Executive Committee: Anton Harber (Chairperson), Raymond Louw, Nobuntu Mbelle, Indra de Lanerolle, William

Gumede, Oupa Lebogo, Sam Radebe. Franz Kruger. Acting Executive Director: Sheniece Linderboom

outcome is to be the primary consideration prior to weighing the interests of people’s

individual rights.

This is in observance and in keeping with the notion of ones rights ending where the

other persons beginning. It is imperative therefore that those news organisations do

not make a concerted effort to place the right of others first at the peril of the

objective they are intended to play. Which objective in itself has a crucial role to play

in the very same democracy they would be trying to foster, in the overzealous need

to protect the rights of others to free speech.

This is simply to be achieved by advocating for and ensuring a responsible exercise

of the right to free speech on their news websites. As well promote comments that

are in line with the content they produce. It is important that news organisations do

not allow the deteriorating of the painstakingly built brands through quality standards

and observance of the highest journalistic standards through irresponsible

commentary. It simply raises questions of why the news organisations would allow

such comments on their sites, and in effect look as though they approve of that

behaviour.

It is therefore important that news organisations if in favour of allowing commentary

pay the necessary attention required to this commentary not to deteriorate into a trail

of distasteful and irresponsible speech.

This being said however, it is important that the interests of the media outlets be

balanced carefully with those of the public’s right to free expression which underlies

an open society that should evidence a democracy. It is therefore crucial on the

news organisations part in protecting and guarding their interest that they see to it

that they foster free expression as opposed to eroding it.

In this regards the FXI recommends an approach centred around namely; content

moderation and self-regulating guidelines.

Content moderation

Executive Committee: Anton Harber (Chairperson), Raymond Louw, Nobuntu Mbelle, Indra de Lanerolle, William

Gumede, Oupa Lebogo, Sam Radebe. Franz Kruger. Acting Executive Director: Sheniece Linderboom

In light of the possibility of liability as mentioned earlier on both the website

owner/controllers and comment posters part it is key to contain the thread within

legal parameters. It is simply key that the two parties both work towards maintaining

a platform that otherwise promote necessary engagement in an open society, not

one that deters participation.

Moderation serves as a screening process that steers the conversation in a manner

that ensures the desired objective of the news piece is achieved. It also opens up the

possibility of the conversation taking interesting turns however in both events there is

absolutely no reason why a comment thread should allow the deterioration to

personal attacks, hate speech and defamatory statements. In light of specific

reference to the South African context, experience has shown a culture of

intolerance of views that can ensue due to cross cultural differences and a variety of

other factors post-apartheid. This then calls upon the facilitator of the debate to steer

it accordingly, in the same way that would apply in radio and television talk’s shows

for instance and should be no different for websites. It would be a fallacy to advocate

for free speech at the expense of responsible expression. In this regard, in the

editing/removal of such material, organisations should actively promote the

maximum of free speech and consciously accommodate what may be regarded as

offensive material unless it is clearly unlawful/prohibited speech.

The modes of moderation used around the world in media are either of a pre-

moderation nature or post moderation nature. In the pre-moderation, the comments

are screened prior to publication, therefore filtered prior to publication and post

moderation allows them to go on and is only taken off once posted through reporting

mechanisms or other screening methods.

A mixed approach exists in which includes pre and post moderation are used, with

the method used depending on the content. Users of this method select the method

based on the susceptibility of the subject to attract adverse reactions or otherwise to

determine whether to pre moderate or post moderate.

The FXI, in our efforts to fight for and defend the right to freedom of expression

under section 16 of the Constitution recommend the post moderation method, which

Executive Committee: Anton Harber (Chairperson), Raymond Louw, Nobuntu Mbelle, Indra de Lanerolle, William

Gumede, Oupa Lebogo, Sam Radebe. Franz Kruger. Acting Executive Director: Sheniece Linderboom

would entail allowing all comments made to be posted up on the site only to remove

or edit accordingly those comments that contain illegal material. We make reference

to specifically illegal material as opposed to distasteful or offensive material due to

the fact that in the pluralistic sense, freedom of expression entails the requirement to

be tolerant of each other’s views even if these shock, offend or disturb the reader.

This is to say if what is entailed in a statement merely shocks, offends or disturbs

does the above listed things but contains no elements of speech that are in the strict

legal sense hate speech or defamation then these should be allowed to be posted as

comments. It is particularly important that news organisations make a conscious

effort to accommodate what may otherwise be regarded as offensive, shocking or

disturbing to foster free speech in its true sense. It is therefore encouraged that any

interference with a comment thread by the website controller is strictly confined to

removing that which is illegal. This in our view also promotes participation because

the knowledge of pre-moderation and screening may deter certain members of the

public from posting when they consider that their comment may not make it to the

thread. The site needs to create a perception that it is a space where people can

freely engage on the issues of the day as posted by the website, this will encourage

maximum engagement, a wider variety of views and ultimately quality open

engagement or debate.

What is ultimately important is that the moderation process is affected in a manner

that is guided and seeks to inspire a disciplined approach to commentary by the

public participants. This can be achieved by removing comments that are clearly

illegal in nature only in an attempt to both protect the site from potential liability and

send the message that speech that is breach of legal enactments regulating speech

will not be kept on the site. This approach will safeguard the interests of the site and

yet in the same breath take note not to alienate or deter commentary and thereby kill

the interactive nature of the feed.

Self-regulating guidelines (Comments policy)

This concept is simply important. The value of this aspect is setting out at the outset

the tone of communication or interactivity that will be allowed. The essence in this

regard lies in the careful crafting of the guidelines that would ultimately be the law of

the website. In the FXI’s view it is simply not sufficient to set out what will be

Executive Committee: Anton Harber (Chairperson), Raymond Louw, Nobuntu Mbelle, Indra de Lanerolle, William

Gumede, Oupa Lebogo, Sam Radebe. Franz Kruger. Acting Executive Director: Sheniece Linderboom

tolerated and what will not be tolerated. In our view it is important to set out what the

site will not tolerate, why that is the case and lastly what the possible repercussions

of breaching the policy may be. This not only provides absolute transparency for the

participant on what it entails to place commentary on the site but also adds

educational value of the need to be responsible in getting ones point across.

We find that often time’s provision of an open forum without the necessary education

element gets particularly dangerous where people are not informed. This is to say

the profanity that results in comment threads is at times from a point of not knowing

that legal repercussions may result. This aspect caters for the “what” and “why”

aspect of crafting the guidelines and the possible repercussions elements is also

extremely important. We are aware that some sites express a willingness to hand

over commenter information in the event of an aggrieved party seeking to sue for

defamation for instance. This is a an aspect that must be clear in the policy

guidelines, that in the event of persons making slanderous comments of others the

site will not hesitate to make available to such persons the necessary information

such a person may require to take the necessary legal action. It should be noted this

guideline would have to be crafted in line with the Protection of Personal Information

Act of 2013 (POPI).

Factors to be considered and mentioned in guidelines relating to speech on user

generated comments:

1. Speech that will not be tolerated (and thereby removed) as guided by legal

parameters of speech as demarcated by;

a) The Constitution of the Republic of South Africa, Section 16, namely

speech that propagates for war; incites imminent violence; or advocates

hatred that is based on race, ethnicity gender or religion and that

constitutes incitement to cause harm.

b) Defamation both civil and criminal, which entails speech that is a false and

is, intended to harm another’s reputation.

c) Hate speech which entails speech that could reasonably be construed to

demonstrate a clear intention to be hurtful; be harmful or to incite harm;

promote or propagate hatred.

Executive Committee: Anton Harber (Chairperson), Raymond Louw, Nobuntu Mbelle, Indra de Lanerolle, William

Gumede, Oupa Lebogo, Sam Radebe. Franz Kruger. Acting Executive Director: Sheniece Linderboom

2. Journalistic ethics that need be observed by the news organisations that

commenters should know about and can play a part in observing if any. Most

active commenters that do so with good intentions take being part of the

journalistic process seriously and appreciate it and are therefore willing to

observe all standards that this entails. It further prompts them to play a

watchdog role on other users who may take for granted the need to observe

these ethics and standards. In this way the comments are a true extension of

the work that the journalist does.

3. A legal disclaimer, making it clear that the site will not be responsible for

comments made and also alerting users of the sites lack of hesitation to hand

over information relating to offensive comments to parties that may be

offended by their conduct (POPI consideration to apply in this regard).

The above is the central theme of the approach proposed by the FXI. Various

ancillary mechanisms to aid the above process can be put in place to ensure that the

above process is enhanced. These include the following;

1. Requiring commenters to identify themselves. This promotes responsible

commenting, people post comments they can stand by and can account for. It

allows the site to have information of who to hold accountable should this be

required. In a minority of cases people will argue that at times they need to

make a valid comment but fear for their security depending on the sensitivity

of the view etc. The site managers could have a system which allows

anonymous comments to be screened and allowed by the site managers as

opposed to simply popping up. This would allow the site to ensure that the

aim of the user is not to speak irresponsibly and hide behind anonymity.

2. Encourage users to report disruptive commentary where the site management

may have missed this.

Executive Committee: Anton Harber (Chairperson), Raymond Louw, Nobuntu Mbelle, Indra de Lanerolle, William

Gumede, Oupa Lebogo, Sam Radebe. Franz Kruger. Acting Executive Director: Sheniece Linderboom

3. Constantly keep users informed on free speech and its parameters, have

conversations on the site about issues of expression and enlist feedback on

the type of environment they feel most comfortable expressing themselves in.

4. Encourage a tone that exhibits respect from all users. In guidelines try and

foster a sense of community amongst users and attempt to create the free

exercise of freedom of expression and other constitutional rights in the

manner that the South African constitution dictates.

5. Encourage users (armed with knowledge) to ensure that they have proof read

their comments before posting them and that their comments are good to post

and carry no offensive or inflammatory content prior to posting.

CONCLUDING REMARKS

In the FXI’s view is it extremely important to news organisation site owners to have a

clear self-regulation policy that contains the conversation and keeps it within the

constitutional parameters of Freedom of Expression. This is not only important for

purposes of the image / branding and responsible outlook of the news organisations

i.e. as reputable news organisations, but also to contain the online commenting

space and avoid the need for legislative regulation of this aspect of communication.

There always lies a possibility that if a space is unregulated or not contained it

becomes unruly to the point of attracting legislative intervention on the issue.

Experience has shown that regulation on issues involving expression is often

undesirable as the state tends to be strong armed in their approach to regulation of

speech. This then has an overall curtailing effect on freedom of speech entirely; a

situation that should be avoided at all costs.

Executive Committee: Anton Harber (Chairperson), Raymond Louw, Nobuntu Mbelle, Indra de Lanerolle, William

Gumede, Oupa Lebogo, Sam Radebe. Franz Kruger. Acting Executive Director: Sheniece Linderboom

Freedom of Expression Institute

1st Floor, Richmond Forum Building

18 Cedar Avenue

Richmond, 2092

Johannesburg

P.O. Box 30668

Braamfontein, 2017

Johannesburg

South Africa

+27 (0)11 482 1913 (Telephone)

fxi@fxi.org.za

Endnotes

i Emerging Best Practices”:http://www.wan-ifra.org/press-releases/2013/10/09/just-published-online-content-moderation-emerging-best-practices

12 November 2014

The Chairperson

Independent Newspapers User- Generated Content Panel

Att: Mr Jacques Louw

Dear Sir

Re: SECTION 16 SUBMISSION - USER GENERATED ONLINE CONTENT

1. Section 16 welcomes the opportunity to make submissions to the Independent NewspapersUser- Generated Content Panel (‘Panel’). These submissions are limited to the broader principlebased issues that must, in our view, be considered.

2. Section 16 is a non-profit and non-governmental organisation that advocates for law reform inthe area of freedom of expression and access to information. Its mandate is to defend andadvance the right to freedom of expression, including media freedom, and access to informationin South Africa.

3. The right to freedom of expression, including media freedom, is entrenched as a fundamentalright in our constitutional democracy by Section 16 of the Constitution. This submission is basedon the principle that the media’s primary role is the performance of this constitutionallymandated function of providing the public with information and the facilitation of access anddissemination of information. This function is central to South Africa’s democracy and thefurtherance of many other rights.

4. However the right to freedom of expression is not without limit and requires careful balancingwith all other rights protected by the Constitution. Media practitioners and individuals areobliged to strike the balance between all rights, each and every time they publish content. This isvery difficult and onerous task, particularly for the untrained or inexperienced individual.

5. We have now entered the age of citizen journalism in that the online environment has createdthe platform for every single individual to publish content with ease. However, mediapractitioners and entities still occupy a significant role in the online arena and the disseminationof information which is invaluable to search engines such as Google.

Executive Committee: R. Louw – K. Matize – M.A Moore – W. Krog No 46 Via Avellano, Lingerett Ave, Sunninghill 2191

Tel: 082 9248268 - Email: melissa@sectionsixteen.org - Website: ww.sectionsixteen.org

"D"

6. Independent Newspapers is performing its constitutionally mandated role of providing news and

information to the public by means of a website that it controls and pays for. It is essentially transforming this role from a hard copy newspaper (traditional print media) to a newspaper which is available online to a wider audience (international and local) and is a more flexible mechanism for public participation and comment. It is thus a very powerful tool for advancing freedom of expression.

Applicable Rules:

7. The very same rules that are applicable to traditional print media are applicable to online media.

One defines ‘online’ hate speech, personal attacks and defamatory statements in the same way as it is currently defined by traditional print media. See Practical Guide to Media Law by Milo and Stein for guidance in applying media law rules.

8. However the nature of the online platform must be considered in the application of these rules, for example anonymity of contributors to the content carried by the website and jurisdictional issues as anyone around the world has access to the website and could potentially contribute to the content that is carried.

Publication of User Generated Content

9. We are of the view that Independent Newspapers is constitutionally obliged to allow user generated content. Moreover, allowing such commentary enhances the right to freedom of expression. Any decision by Independent Newspapers not to allow or to moderate such comments on its websites amounts to pre-publication censorship. We are also of the view that complying with any form of cease and desist demand in respect of user generated content would also amount to censorship and taking the law into your own hands.

Liability for “harmful” content:

10. The publication of content on one of Independent Newspapers websites is a joint process

between the content creator (the writer and owner of the potentially of ‘harmful content’), the platform creator (Independent Newspapers), the internet service provider and the search engine.

11. The distribution of harmful content is not the sole risk of the website owner. Therefore a

balance of liability must be struck between the aforementioned parties who play a role in the publication and dissemination of harmful content. The fact that user generated comments can be made anonymously is a key factor that must be considered in striking this balance.

12. As is the case with any traditional media, publishing information without knowing your source is

a huge risk. By allowing 100% anonymity on a website, the website owner, assumes the 100% of the liability risk. By linking to a website that carries harmful content and essentially furthering

the publication and dissemination of this content and website the search engine should in principle share in this liability.

13. This problem can be overcome by limiting the anonymity of users. It could be argued that

requiring a user to identify themselves is a limitation on the right to freedom of expression and that doing so will have a chilling effect on the free flow of information. This may be so, however the user is utilising a platform owned by Independent Newspapers in respect of which Independent Newspapers assumes responsibility and liability for content carried.

14. However due to the fact that this would constitute a limitation on the right to freedom of

expression, it must be done in such a manner that the limitation is reasonable and justifiable and limits the right to freedom of expression in the least possible manner in order to achieve the objective of providing a platform for user generated commentary but still being able to ensure accountability where the harmful content has been published.

15. The appropriate mechanism may be the implementation of a user login system and ‘vetting’

process. Requiring user details is the first step towards the limitation of the risks of liability explained above. Although users may provide false details, requiring a mobile number verification process may be a solution. By requiring the user to confirm that it is in fact his or her mobile number by responding yes or no by SMS will in principle allow Independent Newspapers to obtain a court order for the personal details behind the mobile number.

16. Freedom of expression is not an absolute right. It can be argued that requiring the users to

identify themselves is a justified limitation of their right to freedom of expression, considering also that they are not in any way barred from expressing themselves online. There is nothing stopping an individual from starting a blog for instance or creating their own website, where they are free to express themselves as they wish and assume 100% responsibility for the content carried. Independent Newspapers would however be obliged to protect that personal information in all other circumstances. This also allows Independent Newspapers to decide whether or not it should project the source of information posted on its website.

17. This in our view may limit, although not exonerate, the website owners liability for the

publication. The mere fact that a user will have to identify themselves will act as a real deterrent for truly harmful speech and as previously indicated will encourage accountability. There is nothing in law which prescribes that an individual should not be accountable for their speech.

Complaints from the Public

18. A further mechanism for the limitation of liability may be the implementation of a complaints

process, involving the information creator (user) and the incorporation of the rules of the various self- regulatory bodies in the websites terms and conditions. There is nothing preventing Independent Newspapers from ‘flagging’ comments which have attracted complaints on the actual website with a ‘note’ informing readers to proceed to read the commentary with caution and knowing that complaints have been received, the nature of the complaint and that they have been referred to the regulatory bodies for adjudication. This will provide the appropriate context in which the commentary should be viewed.

19. This process could also involve the information creator. One could also consider amending theterms and conditions of use of the website to include an acceptance of the regulatory bodiescode of conduct and the amendment of such codes to provide for this arena. However, thisrequires thorough consideration.

20. Considering the aforementioned, the question of whether or not to allow user generatedcommentary on Independent Newspaper’s websites without a pre-publication vetting processshould still be answered in the affirmative.

21. Section 16 remains available for further consideration and discussion of these submissions andthe important issues currently under consideration by the Panel.

Yours Faithfully

Melissa Moore Executive Director

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