The recent trend in the South Africa regulatory environment has seen the emergence of increasing policy and regulation pertaining to the telecommunications, media, broadcasting and information technology sectors (collectively the “ICT sector”) in South Africa, in an attempt to bring South African ICT law in line with international trends and practice. This advancement is set to continue, with future legislative amendments and policy implementation expected to have a far-reaching impact on the future regulatory landscape of the ICT sector in South Africa.
Telecommunications and broadcasting
Telecommunications and broadcasting services are regulated by the Independent Communications Authority of South Africa ("ICASA"), with the primary piece of legislation governing these two sectors being the Electronic Communications Act, 2005 (the “ECA”). The main policy imperative underlying the ECA is the introduction of a more flexible regulatory regime so as to accommodate the convergence of new technologies, platforms and services as they develop. The ECA introduced a new licensing regime for infrastructure providers and specifically empowered ICASA to impose pro-competitive regulatory measures on network operators who hold significant market power.
Under the ECA, ICASA is empowered to grant service licenses to both telecommunications and broadcasting service providers. The type of licenses that ICASA may issue are electronic communications network (“ECN”), electronic communications services (“ECS”) and broadcasting licenses. A notable feature of the licensing regime for ECN and ECS is that it is platform, service and technology neutral.
The ECA imposes a number of statutory restrictions on the ownership and control of broadcasting licensees. However, no similar restrictions are imposed on ECN and ECS licensees in the legislation, although ICASA may publish regulations limiting the ownership or control of an individual licence in order to promote ownership and control by previously disadvantaged individuals and to promote competition in the ICT sector. A foreign national may not, directly or indirectly, exercise control over a commercial broadcasting licensee or have a financial interest or an interest either in voting shares or paid-up capital in a commercial broadcasting licensee, exceeding 20%. Furthermore, no more than 20% of the directors of a commercial broadcasting licensee may be foreign nationals. The ECA requires ICASA to prescribe broad-based black economic empowerment (“BEE”) shareholding thresholds for applicants for new individual licences, which must be set at a minimum of 30%.
Electronic communications networks and systems may be intercepted and monitored under South African law, in accordance with the Regulation of Interception of Communications and Provision of Communication-Related Information Act (“RICA”). RICA essentially seeks to regulate the interception of certain communications and radio frequency spectrums and the provision of certain communications-related information.
In terms of RICA, no person may intentionally intercept or attempt to intercept, or authorise another to intercept, any communication in the course of its occurrence or transmission at any place in South Africa, except where the interception is undertaken under certain circumstances (for example, under the direction of a judge or for law enforcement reasons).
No person may transmit radio signals in South Africa without a radio frequency spectrum licence. ICASA is empowered by the ECA to control, plan, administer and manage the use and licensing of the radio frequency spectrum. ICASA is also mandated by the ECA to plan for the conversion of analogue uses of the radio frequency spectrum to digital, including the migration to digital broadcasting in its preparation and modification of the radio frequency spectrum plan. The South African government approved the Broadcasting Digital Migration policy in 2008 for the conversion of television broadcasting signals from analogue to digital and has committed to the digital migration of television broadcasting services by 2015.
Technology and e-commerce
The information technology sector is not heavily regulated in South Africa. However, there are legislative enactments in force that regulate elements of IT such as e-commerce, privacy and data protection and access to information. Information over the Internet is not generally regulated by statute, except in relation to specific areas such as online gambling and child pornography. Common law protections exist in relation to defamatory material that is published online.
Privacy and data protection
Currently there is no specific legislation that comprehensively governs the protection of personal information in South Africa, although the Protection of Personal Information Bill (“POPI Bill”) will introduce a detailed statutory framework for the processing, retention and destruction of personal data, in line with international best practice. The POPI Bill is not yet law and remains in draft legislation format at this time. It is not clear when the POPI Bill will be enacted, but we anticipate that the Bill will be passed into law during 2013.
The ECA Amendment Bill, published in July 2012, proposes a number of important changes, and signals a significant shift in the regulatory landscape in South Africa. The stated objectives of the ECA Amendment Bill include aligning the ECA with broad-based black economic empowerment, incorporating certain changes relating to ownership and control of commercial broadcasting services, and introducing a Spectrum Management Agency which will have overall responsibility for the management of radio frequency spectrum in South Africa. The provisions of the ECA Amendment Bill will be finalised in due course and it is expected that the amendments, once passed, will have a significant impact on all commercial entities that operate in the ICT sector in South Africa.
In November 2011, ICASA published its high-level framework in respect of local loop unbundling (LLU). The local loop is prescribed as an essential facility, and accordingly, the publication of this framework is regarded as an important development for purposes of increasing competition and ultimately benefitting the consumer. However, to date, details have not yet been released as to precisely how or when the next step in the LLU process will be carried out by ICASA.
These proposed policy and legislative developments should ensure that the ICT sector in South Africa is poised to enter an interesting – and hopefully positive – new phase over the next 12 months.