"We are contemplating to regulate the space. Even the best democracies that are revered, they regulate the space," said former minister of state security David Mahlobo last year, in response to a question by a reporter about fake news. The space he was referring to was social media.
He was never ready for the response, as evidenced by the hashtag #handsoffsocialmedia that trended thereafter, prompting petitions against the move by advocacy group Right2Know (R2K).
"This is a clear move by state securocrats to try clamp down on freedom of expression and increase their powers to censor the internet," said R2K in a statement.
The organisation believes that any form of internet regulation would "hand the keys of the internet" to government.
Is internet regulation possible in South Africa?
"Broadly speaking [internet regulation is] impractical, but for very specific reasons it can work," World Wide Worx MD Arthur Goldstuck told HuffPost. He made an example of Facebook, which may soon find itself tied to some form of internet regulation when the E.U. implements the General Data Protection Regulation (GDPR), which was adopted in 2016 and will be enacted in May 2018.
The regulation will deal with data protection and privacy for all individuals within the European Union, further addressing the export of personal data outside the E.U.
As is, when one uses a platform like Facebook, one willingly discloses personal data. Facebook then has the right to process this data to provide their services when one asks them to. However, the application of the GDPR will prevent Facebook from using any E.U. citizen's personal data for any further purpose, unless the user permits this.
"This means that although Facebook is sitting on top of a trove of personal data, it will have to start offering a form of ad targeting that does not process these data points, unless it can get explicit consent," explained Johnny Ryan of ad tech firm PageFair.
"In the wake of the Cambridge Analytica issue, it is unlikely that people will volunteer this consent," Ryan added.
Facebook has said it will comply with this new regulation.
"So it's possible to make similar rules in South Africa which Facebook (or any other social media platform) would have to abide by, if they want to carry on operating in the country," said Goldstuck.
'Some form of regulation may be necessary in South Africa' – media scholar
Media scholar and Wits University lecturer, Nkululeko Sibiya believes some form of regulation – like the E.U. is implementing with the GDPR, especially in the wake of the Cambridge Analytica scandal – may be necessary in South Africa, to protect the data and privacy of South Africans active on social media platforms like Facebook.
"It is clear that we now need regulation more than ever, since the democratic citizen is under attack, not only from governments and political parties, but from companies that make money from surveillance capitalism," he told HuffPost.
He also highlighted concerns with the lack of monitoring of sensitive and even dangerous content that makes the rounds on South African social media platforms. "I do not think we need to regulate all videos uploaded by individuals – however, we do need monitoring of violent and terrorist material."
A similar view is held by the Freedom of Expression Institute [FXI]. "Cybercrime internationally is on the increase, and people are falling victim to hacking, cyberforgery, cyberextortion and the unlawful interception of data. In order to curb the above, laws need to be put in place to regulate the cyberspace," said the organisation's Nobuntu Mbelle.
Laws could be created for regulation that would ensure that conventional law is also applicable online to social media platforms. "For example, abusive content like harassment, threats and defamation are illegal in conventional law so, technically, they should be illegal on social media. The challenge would be how to apply these laws online," added Goldstuck.
Any form of intervention, however, would need to be minimal, "in order to not hamper the rights afforded and guaranteed to all in the Constitution", Mbelle told HuffPost.
When regulation becomes censorship
"Regulating what individuals are doing, however, is totally different, because that amounts to censorship – even if it may not be posited that way by government," said Goldstuck.
He remarked that, since democracy, South Africa has been remarkable in protecting and advancing freedom of expression, "so to try [to] regulate social content on social media would be going backwards".
Sibiya, whose master's research focused on threats to media freedom – referring in particular to the state of the nation address (Sona) in 2015 and the signal-jamming scandal – said freedom of speech and the free flow of information are central to democratic and economic development.
"In 2015 there were a lot of sentiments expressed in the public sphere via the internet. The government of the day responded by disrupting the internet signal. Evidence from my work shows that social media platforms, especially Twitter, was used by journalists in the press gallery to inform one another about what was going on, discuss plans of action, and most importantly to address parliamentary officials and ministers.
"The citizens were able realise the constitutional rights of freedom of expression and see what their representatives were doing. They engaged in debates about the issue online. They shared censored footage which included pictures and videos," Sibiya told HuffPost.
And it is this very right that censorship masquerading as regulation would affect.
Is self-regulation not enough?
A counterargument that's been put forward, however, is that regulation of social media already exists. Platforms such as Facebook and Twitter have added self-regulation measures to empower users to take action against online harassment and cut down on the spread of fake news and propaganda.
"These systems are flawed, and users need to be empowered to engage with content critically and decide for themselves whether to trust the content they access," said R2K.
"Strengthening self-regulation mechanisms is a viable option, as state intervention may result in the loss of social media freedom and independence. Because self-regulation has not been as effective as the public would like, a compromise could be reached between the two extremes – in the form of minimal statutory interference and maintaining elements of self-regulation. There would be a greater sense of accountability, and the independence of social media and fundamental rights would be maintained and protected," Mbelle said.
Further, there is already a range of internet regulatory policies in the pipeline that the R2K feels are "deeply problematic censorship policies, including the Film and Publication Board's internet censorship regulations, the draft hate speech bill, and the new cybercrimes bill."
"State interference and the passing of regulatory bills such as the Cybercrime and Cyber Security Bill could, if abused, adversely affect internet freedom in the country – but the fear of regulation should not be put before the fundamental right to privacy which our Constitution protects," added Mbelle.
What regulation should probably look like, if we ever get there
In a democracy, this regulation would protect the vulnerable from criminal activity and the ill intentions of big corporations online, while facilitating open communication and protecting freedom of speech and expression.
"What is key is that regulation must reflect the desires and aspirations of all groups in society, but still provide the necessary security that states demand as well as the access to audiences that companies seek," said Sibiya.
A mammoth task to achieve, he admitted, as it would suggest not only getting together key players including nonprofit organisations, tech experts and digital activists, but also getting them to agree on regulation that would moderately satisfy all parties involved, but chiefly protect the data and privacy of all South African citizens.
"In the main, regulation would need to look at code and how it is designed; it would need to look at companies and how they regulate their own activities. So you might need a new organ of state that is independent, like a Chapter 9 institution, staffed by various experts from different sectors of society to oversee the implementation of regulations."
A view the FXI concurs with, as previously put forward by the organisation in its Internet Freedom in Africa Baseline Report: "Civil society organisations should proactively engage service providers and governments to ensure that their policies and regulations do not violate the rights of people to express themselves and access information offline and online."