This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.
The state must respect, protect, promote and fulfil the rights in the Bill of Rights.
The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill.
The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.
A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.
When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1).
A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person.
Property Rights in South Africa:
No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.
Property may be expropriated only in terms of law of general application for a public purpose or in the public interest; and subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.
The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including the current use of the property; the history of the acquisition and use of the property; the market value of the property; the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and the purpose of the expropriation.
For the purposes of this section:
The public interest includes the nation's commitment to land reform, and to reforms to bring about equitable access to all South Africa's natural resources; and property is not limited to land.
The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.
A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.
A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.
No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1).
Parliament must enact the legislation referred to in subsection.
"Please indicate if your Web site contains any of the following (select all that apply): Al Waxman, Alanis Morissette, Alan Thicke, Alex Trebeck, Anne of Green Gables, Anne Murray, back bacon, bears, beavers..."
It hasn't come to that - yet. The CRTC firing off questionnaires to professional web designers, amateur enthusiasts, or awkward teenagers reminding us yet again that the world simply doesn't understand them. Anyone possessing the time and the inclination can create a website and have it up and running within hours. As of July 9, 2002 there were 2,073,418,204 web sites listed on Google with "no way of knowing definitely." With that amount of sheer numeric volume, it is nearly impossible for any organization to tackle the responsibility of regulating web site content.
For the time being, the CRTC has decided not to pursue any regulatory sanctions regarding website content. Although the dearth of websites - Canadian or otherwise - has no doubt had an influence on the CRTC's ruling, the official results of their inquiry were as follows:
oThe internet is not, by definition, broadcasting.
oThe internet compliments broadcasting. It is not a replacement.
oMaterial can be customized by its user. The web is a "push media."
oThere is already a large Canadian presence on the internet.
oThe Criminal Code and web filtering equipment can effectively deal with offensive content present on the internet.
Currently, these findings serve as a perishable template for the CRTC to conduct more research into whether or not there is a place for regulations on the internet. Indeed, there have already been public hearings where both the provider and the consumer of websites have had the opportunity to voice their opinions on the matter. Undoubtedly there will be many more discussions and debates regarding whether or not the CRTC should regulate the internet.
So, the question is: should the CRTC regulate the internet?
Perhaps the question should be directed thusly: can the CRTC regulate the internet? To the former question, the answer is "probably not." To the latter, the response is "absolutely not." There are many roadblocks that prevent the CRTC from claiming any kind of regulatory influence over the internet. These barriers can be viewed as permanent reminders that any attempt at defining Canadian content on the internet will be thwarted. The four mandates that will ultimately dictate any CRTC decision are:
oPersonal and Moral Choices
oAvailability of Resources.
First off, there is a legal history that produces a difficult obstacle for the CRTC to overcome if it wishes to establish a regulatory presence on the web. It deals with the reason that the internet is a popular tool: pornography. A popular adage is that pornography created the internet. At last glance, there is nothing wrong with viewing naked people on your computer and...excuse me, I was distracted for a moment. Yet, on May 3, 2002, the Supreme Court of Canada made a precedent setting ruling.
On that day, the Supreme Court of Canada ruled in a horrific (aren't they all?) child pornography case involving John Sharpe: a British Columbia man who possessed child pornography on his computer and who enjoyed writing explicit sex stories featuring children. His loathsome defense lied in the theory that his work and possessions had "artistic value" and that should override any legal discrepancies that may arise. Shockingly, the Supreme Court of Canada agreed with him, ruling that:
"His possessing...child pornography." And the "graphic child sex stories Sharpe had wrote had artistic merit and were therefore exempt from child pornography laws."
This ruling contradicts the CRTC's earlier proclamation that the Criminal Code of Canada would act as a legal buffer to deter web users from viewing illicit material. Any attempt by the CRTC to enforce restrictive content limits would no doubt be challenged by a referral to this specific case. If one element of the Criminal Code can be circumnavigated in the name of aesthetic expression, then why not another? The result of this landmark case - which is not lost on Canadians who either wish to post or view illegal material on the web is that Mr. Sharpe has no criminal record to reflect his sickening actions.
Along with juristic background, another basis that precludes the CRTC from regulating the internet are the personal and moral rights that Canadians have under the Canadian Charter of Rights and Freedoms. This document, born on April 17, 1982, is the guide to the liberties that individuals who step within Canadian borders are entitled to. Section 2 (b) of the Charter, listed under Fundamental Freedoms, is an important passage. It decrees that:
"Freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication."
The internet is the new communication tool of the 21st century. At the very least, it can be identified as "other media of communication." Name another device that enables its user to communicate with a fellow in Malaysia, play chess with a lass in New Zealand, and view a Cuban's opinions on thermodynamics? The internet allows for people to mass communicate their ideas, thoughts, opinions and expressions. For the CRTC to impose limits on that ability would contradict Section 2 (b) of the Canadian Charter of Rights and Freedoms.
Also, the Fundamental Freedom to speak your mind is a right valued dearly by all Canadians. Although freedom of expression is protected under the Charter, a more widespread belief is that freedom is a "right given by God, and not by law." Canada takes its pride on the fact that it's a mosaic of cultures. However, freedom of speech is a link unifying an Italian in Halifax to a Sikh living in Whitehorse. The internet is the conduit to spread those expressions. Not every Canadian can appear on national television or radio to state their point of view. But every Canadian can log onto a chat room, or design a web site to expose their beliefs. The CRTC simply can not interfere with that ability.
The third factor that should exempt the internet from CRTC influence is the simple fact the Canadian web sites are flourishing at an impressive rate already without any regulatory guidelines. Currently "5% of content on the internet is Canadian." That is a significant percentile when considering the amount of web sites available (recall 2,073,418,204 total web sites as of July 9, 2002).
Canadian web sites are earning a reputation on the international stage as being highly creative in both terms of creativity and content. Many Canadian web sites, either personal or professional have garnered acclaim from those in the internet community who appreciate the importance of a good web site. Perhaps the ultimate compliment was paid to the web page of The Edge 102.1 FM, a Toronto based web site for its radio station.
Peter J. Maurin, Professor of Media Studies at Mohawk College in Hamilton, made this announcement of the Edge 102.1 FM web page:
"According to Broadcast Magazine, a publication that monitors media web sites, the Edge 102.1 FM web site is the fifth most visited web site in the world regarding radio station web sites. In the entire world, for all radio station web sites, it ranks number 5 in terms of visitation."
The CRTC, baring the banner of good intentions, may wish to provide a regulatory guide for the internet in Canada. However, there is no reason for it. Canadian operated web sites are strong and vibrant. As stated in the CRTC's original ruling, there is already a strong Canadian presence on the internet and any outside interference could possibly put "Canadian internet media at a disadvantage in the global market."
In today's hyper-connected global market, any advantage that can be gained can possibly make the difference between commercial success and failure. Today's e-commerce is built on international interaction between individuals, not faceless communications. It would be excessively unwise for the CRTC to impose regulations as to how Canadians conduct business on the web.
Along with current Canadian success on the web, the resources available to Canadians prohibits the CRTC from setting regulations. Television stations and radio stations are not purchasable at the local Future Shop. Not everyone has the means to launch a national newspaper. However, everyone can buy a computer and acquire web design software to create their own web sites. Imagine the outrage that would ensue if Canadians had to apply to the CRTC for a license to purchase web design material? A draconian proposal indeed if there ever was one.
Modern technology gives average citizens the ability to buy the technology to express their views. As this technology improves, the ability of the CRTC to have any influence over it will wane. Personal cell phones are letselschade bedragen now equipped with internet access, with wrist watches the next to follow (if that hasn't happened already). The internet allows users to both be a part of and have access to two distinct groups: individuals and a mass collective. There are my opinions on a topic and then there are everyone else's. Everyone else being made up of individuals, to which I am an integral part of.
The CRTC was right to explore the potential of internet regulation. Other CRTC forms of regulation (i.e. CanCon) have proved to be highly influential in promoting and protecting Canadian culture. The difference between broadcasting and internet media is that Canadians can not choose what kind of music is made by whom. If Bryan Adams wishes to record an album, there is no public corridor to counteract that. The internet allows for individuals to challenge each other on a personal-global scale. See something that bothers you? Post an answer on a message board. Have a strong view on something? Create a web site. Wish to seek others with similar interests? Join a chat room. The options are almost limitless.
Ultimately, though, the CRTC can't regulate the internet. Legally, any attempt at internet regulation would be challenged under the John Sharpe ruling. Personally, the right to freedom of expression is protected (and sacred) under the Canadian Charter of Rights and Freedoms. The international community has already proven that Canadian web sites are successful just the way they are, and Canadians have the technology at their disposal to set up personal web sites of their own design. The internet is the one tool available for everyone, by everyone. That unifying link should not be tarnished.
As a fellow essayist put it: the CRTC's attempt at internet regulation is an "Orwellian proposal,"...like 1984 that will "descend on Canadian free speech like an iron curtain." The last time I checked, the novel 1984 scared the hell out of me.