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

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

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 Medias 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 Surv 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

Executive Summary
Independent Media's executive Chairperson, Dr Iqbal Surv, 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 groups Internet portal, IOL.
The scope of the Panels 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.

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 usergenerated 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 Panels findings do not bind Independent Media. Ultimately the Panels 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.

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.

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

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.

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 dialoguebased than oneway 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.

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.

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.
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
th
Ashley Greco-Stoner. Globally South Africa is scored 13 out of sixty countries on the freedom chart.
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.

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 Surv 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
authors 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 articles content to

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
1.13.1

The Panel looked at the following broad questions and issues:

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 websites 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.

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

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.

10

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.
2.1

SUMMARY OF THE SUBMISSIONS

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
2.13

It may attract legal liability.

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 selfregulating 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.
problem can be overcome by limiting the anonymity of users.

This

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 usergenerated 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

15

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
8

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

17

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

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
individuals 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

2011 (4) SA 191 (CC).

Para 83.
11
2002 (5) SA 401 (CC).
10

18

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
publics 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 usergenerated 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
13

Prinsloo v The State [2014] ZASCA 96 at para 20.

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 Act 15 ("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
15

Tshabalala-Msimang v Makhanya 2008 (6) SA 102 (W).

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.
16

Murray successfully obtained an urgent interdict in the

Milo D, Penfold G and Stein A, 'Freedom of Expression' in Woolman S, Bishop M and Brickhill J (eds),
nd
Constitutional Law of South Africa (2 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 2011 17 (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
3.33.1

In terms of the Harassment Act, harassment includes:

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 dont 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 researchers 19 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 homosexuals 21. 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-andtakedown 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 Soknunan 24 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
Guardians 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.
6.1

OTHER INTERNET POLICIES

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 prescreen 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

comments 26:

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-socialmedia 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.
http://edition.cnn.com/2014/11/21/tech/web/online-comment(See
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 Panels 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
28

2006 (6) SA 416 (CC).

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 report 29, 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
7.14.1

The Panel found that there are three tiers of possible moderation. These are:
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 prepublication 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 postpublication moderation, which would include a take-down process where
unacceptable comments have slipped through the cracks.

8.
8.1

RECOMMENDATIONS
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 Medias 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 preand 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.

"A"
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BlackinCapeTown?Braceyourself
August152014at08:30am
Commentonthisstory

She'stravelledtheworld,butitsonlywhen
livinginandnavigatingCapeTownthat16
yearoldwriterKineDineoMokwenaKessi
discoveredshewaswellandtrulyblack
CapeTownOnethingthatIvelearntisthatwhen
askedyouropiniononCapeTown,itsatrap.Dontbe
fooledbytheseeminglysweetoldAfrikaanstanniein
thequeueatWooliesitdoesntmatterhowcutethe
foreigndudeontheMyCiTiplatformisalwaysbeon
yourguard.
TheCapeTownquestionisdelicateandansweringit
correctlyislikehavingParkinsonsandwalkinga50m
tightropeaboveapitofstarvinglions.
WhenpeopleaskmewhatIthinkofCapeTownIgo
throughthefoolproofMFDARmentalflowchartto
determinetheappropriateresponse:

INDEPENDENTNEWSPAPERS

AbarrageofracistremarkswaspostedonIOLin
responsetoacommentpiecebyteenagerKine
DineoMokwenaKessi.

IstheinquirerCapetonian?Yes.
REDFLAG!Blackorwhite?WhiteAbort!Abort!DefaulttoNOmode:unlessyouhavetimetoengagein
anindepthconversationexplaininghowyourenotaracist,jumpto:Uhmwell,itsverybeautiful.
ThenproceedtotalkaboutthatbeautifulhikeupLionsHeadandhowbeautifulCliftonbeachwaslast
Sunday,and(ifyourefeelingparticularlyambitious)hintatwhatabeautifuljobtheDAisdoing.Inshort,
everythingisjustsoexasperatingly,insufferablyBEAUTIFUL.
BlackInterestingdynamic.DontgoonafulloutRamboesqueaggressiveriffonhowfundamentally
racisttheRepublicofCapeTownis.TheBlackCapetonianisavictimofinternalisedoppression.Its
frustratingbutforgivable.Defaultmode:gentlecoercion.Thisisstilltheirhomeafterall.
FromJoburg?Yes.Youmayjusthavefoundafriend,butremainsceptical.
BlackorWhite?WhiteIwouldntriskit.Defaultmode:tactful.Jumpto:CapeTownissorelaxedsoits
greatforaholiday.
Pleasenote:inthecasethisCaucasianindividualisaforeigner,youcanplaythisoneoftwoways:
*CompletelytraumatisetheGermanexchangestudentwho,withthebestonintentions,cametosavethe
starvingchildren.
*Beniceanddontruintheirholiday.Alltheywantedwasapeacefuldayatthebeach.
Blackbreathealongsighofrelief,youreamongfriends.Defaultmode:Liftthefloodgatesofhonesty.
Tellthemaboutthatracistincidentatacoffeeshopandfeelfreetoomitthatjokeyoudcautiouslyadded
tomakeitseemlikeyouwerentangryaboutthewholeepisodewhenreallyyouwerefuming.Exchange
notesontheblackesthangoutspots.
Warneachotheraboutwhereyouremostlikelytoget(intentionally)badservice.Givethemahugand
wallowinthescentofcamaraderieandsharedexperiencesscavengeeveryounceofstrengthinthis
encounter.
Iadmit,itsnotacompletelyfoolproofsystembutitsseensomepromisingresults.Ididntalwaysresortto
flowchartstoinanattemptatdiplomacy.IwasntalwayssocynicalIhaveCapeTowntothankforthat.
MyfirstvisittothecitywasinApril2011,ayearbeforeImovedherefromJoburgtojoinmymother.
Iwassoveryyoung,soveryimpressionable,soveryexcitedaboutthemountainsthatseemedtogoon
forever,theicecoldbeachessprinkledwithpenguins,thetrainridedowntoSimonsTownwherequirky
vintageshopssprawledoutontowindsweptcobblestreets.

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ButwhatIlovedmostwasthevibeofthecityitself.Itsinfrastructurewasimpressiveenoughtobe
importantwithoutbeingintimidating.Iveneverbeeninaplacesoquaintandsoacutelyawareofits
quaintness,presumptuousinitssenseofhistory.ItdidntfeellikeLondonwhereatanymomentyoucould
bechewedupandspatoutforbreakfastandeyelidswouldntbat.
ItdidntfeelfraudulentlikeDaresSalaam,aworkinprogressplantedonvibrant,dusty,overcrowded
streetstryingtobesomethingitwasnt.
ItdidntfeelanallycleanlikeGenevaandnotquiteasimpracticaloranxiousasJoburg.CapeTownwas
comfortableinitssmidgenofselfawarenessandconfidentinitscontroversy.IreallydidloveCapeTown.
Butourhoneymoonperiodwasshortlived.IthinkIwokeuponedayandIknewitwasntgoingtowork
out.
Betrayalcanmakeyoufalloutoflovejustasquicklyasyoufellinit.
CapeTownistheMatrixandImNeoDineo.Iwasjustanotherunconsciousmindpluggedintothe
system.Asleepandenjoyingmyslumberatthat.
Sure,InoticedthatIonlyhadwhitefriendsbutIdidntmind.IwasattheFrenchSchoolofCapeTown,so
whatdidIexpect?BesidesmyfriendshavealwaysbeenmostlywhitesoitneveroccurredtomethatIwas
perhapsmissingoutonanentirelydifferentexperience,onewhereIwouldntfeellikeIstuckoutsomuch.
Iwasenjoyingmyuniqueness.
Sure,InoticedthatIreceivedinterestingreactionsatcertainrestaurants,butthestaresranging
somewherebetweenobjectionandshockdidntoutrightbotherme.Infact,Ifounditamusing.But
followinginthefootstepsofNeo,thedaywouldcomewhenmymindwouldbeunpluggedandIwouldbe
flushedoutofthesystemforgoodanditwasntpoliteaboutiteither.Igotslappedinthefaceby
consciousnessandjustlikethatIwaspropelledintoanalternativereality.AndIveneverfeltsoalone.

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IdontremembertheexactmomentIbecamewellandtrulyblack,intheconscioussenseoftheword.The
processofgainingconsciousnessislikethosefirstsickeningmomentsofbeingonarollercoaster:
graduallygoingupandupandup,tensionbuilding.Andjustwhenyouthinkaboutturningback,youpanic
yourealiseyoucant.Thatswhenitdropsyou.Andyouhavenochoicebuttocommit.

FreeBudgetSpreadsheet

CapeTownisharshlikethat.Itsastrangelyisolatingcity.SuddenlyIwasburdenedwithopinionsI
couldntvoicewithmyfriendsinearshot.Theywerestillmyfriendsbutnowourdifferencehadbecome
gruelling,almostadversarial.

IOLJobs

Istartedseeingmyenvironmentthroughglassestaintedwithcriticism.Theuniformstheparkingmarshals
wearattheMountNelsonwereracist.WhywasCecilJohnRhodesstillperchedontheUCTsteps?How
dothosekidsfeelaboutgoingtoaschoolnamedafterJanvanRiebeeck?

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PerhapsitwaspresumptuousofmetocomparemyselftoNeo.Imnotthechosenone,theprophetsent
tochangetheworldchangeisacollectiveforce.IamsimplyoneinfiltratoroftheMatrixfromtheoutside
inImstillworkingontheflowchart.

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CyberZen 6monthsago

Uh...comeonfolks.
Mostofuscanrecallhowdifficultitisbeing16,searchingforidentity,thebuffetingconfusionof
crystalisingsexualtiy,theneedforselfexpression.
Addthestressesofjumpingbetweencitiesandthisiswhatyouget.
Thiscouldcomefromanyoneofthisageinanycityintheworld.
Wellwritteninplacesthoughitmaybe,thecontentisallovertheplace,andtheideasdon't
flowinaveryorganisedfashiontoanabruptendingdidthewriterrunoutoftime,orjuststart
feelingabitbetterandlosesteamaftertheminirant?
I'mnotaresidentofCapeTown,butamaregularvisitor.
Ilovethecity,wartsandall.justlikeJoburgandDurban.
Eitherway,it'snotanuninterestingpiece,andcertainlyprovokessomethoughtsaboutthe
SouthAfricancondition.
I'dreadthiswriter'sworkagain.Thereispromiseherethatmayberealisedwiththepassage
oftime.
Inanycase,thisiswhatfreedomofspeechisallabout.
Whatissurprisingisthatitshouldprovokesuchvitriolicexchangeshereasithas.
Somanyaxesneedinggrinding...what'snotsurprisingisthatthishascaughttheeyeof
seemore

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Thiscommentwasdeleted.

GraudDrosterKirjool>Guest 6monthsago

Horakdoesn'tsoundlikeaveryCapeTownianname.AndasitiskindofobscureI
assumeitsyourrealname.InfactaquickGooglesearchinformsmethatitoriginates
fromsomeobscurecentralEuropeancountry.GobackhomeEurotrash!lol.
1

Share

YvonneHorak>GraudDrosterKirjool 6monthsago

YOUhaveNOhistoryhereinW/Capeatall.!Yourignoranceyourevealhere
provesthat.IsupposethenamesDevilliers,DuToit,Marais,Anreith,Melck,De
WetDuPlessisandKoopmans,Isuppose,mustALSObeobscuretoyouand
notaCapeTonianname,likeHorakOffcourseIwasnotbornHorakbutalso
marriedHorak.WellallthosenamesareinourAncestryandintermarried.over
CenturiesALLrecordedfromday1withdatesofarrivalandonwhichshipsin
CapeofGoodHope,datesofmarriageandtwhom,,datesofbirths,datesof
deathsetc..PerhapsyouneedtopayavisittoTheKoopmansDeWetMuseum
(theoldesthouseMuseuminSouthAfrica)inStrandStreet.BuiltbyMartin
Melck/(ANNAHorak)andoccupiedbythefamilyandfinallylastbyhisgreat
granddaughter,socialiteMarieDeWet.HermotherwasAdrianaHorakandher
fatherAdvocateJDeWet.Hissister(heraunt)wasmarriedtoSirJohnTruter
ChiefJusticeoftheCapeofGoodhope.MariemarriedKoopmanand.Marie
KoopmanDeWetwasthelastpersontooccupythehouse.Shewashighly
educatedandfluentinDutch,English,FrenchandItalian.Entertained
dignitaries,traveledtoEuropeandentertainedtherebyRoyaltyanddignitaries.
Afterherandhersistersdeath,thehousewasbequethedasa
Museum..Eurotrash?Idoubtverymuchthelikesofyouwouldeverhavehad
theprivilidgeofbeinginvitedortohavesteppedthroughtheirdoorfrontsand
neitherwouldyoubetoday
5

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GraudDrosterKirjool>YvonneHorak 6monthsago

NoonerememberstheFrenchmenofAlgeria.Andknowonewill
rememberyoupeople.Yourhistoryofviolencewillberepaidinkind
soonenough.

Share

YvonneHorak>GraudDrosterKirjool 6monthsago

DreamonnotintheW/Cape.DowhatyoulikewiththerestofAfricait
isamessanyhow.Ifalltheaidiswithdrawn,millionswillstarveanddie.
TheycanthanktheWesternWordfortheHIVtreatmentstostartoffwith
andnevermindalltheothervaccines.Ebolaalsocomestomindand
therewillbeothers.IfallthatAIDisstoppedandfood,well,whoneedsa
war?
4

JayneMcElwee 6monthsago

Verywellwritten!
4

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CosmicTeapot 6monthsago

I'dliketoseeapieceobviouslydevoidoftrolltrash,writtenbya16yearoldAfrikaanerwho's
welltraveledtoo.Anyone?
10

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flushtwice 6monthsago

MayIsay,thisisabeautifulwrittenpiecedespiteofthecontext...Inotherwords(forallthe
keyboardwarriorsoutthere),Storybad.Writingandvocabularyverygood.
3

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Markish>flushtwice 6monthsago

Iagree,shewritesbetterthanIevercould,stillthisisnothingmorethantheramblings
ofa16yearoldpublishedinyetanotherattempttomakewhitepeoplefeelevenmore
guiltyabouttheirwhiteness.
Stufflikethisremindsmeofbeingatschoolwhennobodywantedtoplaywiththeweird
kidsohismumphonesupyourstoarrangeaplaydateeventuallyyourmumguilttrips
youintobeingnicetohim,heremainsaweirdoandyouenduplikinghimevenless
thanbefore.
9

Share

Guest 6monthsago

quitetellingthatwecan'tcommentonthethinktankvibes.....formulating.....FORMULATING!

Share

Gray 6monthsago

WhileIhavenoissuewithDineo'sdescriptionofCapeTownasracist,weareafterallthe
ultimatecitywhenitcomestobeing"onthewrongsideofthetracks",IthoughtI'dencourage
hertousemoreappropriateexamples.Forexample,thefactthatnosignificantmovehasbeen
madetorestitutethelandforciblyremovedfromcolouredfamiliesinDistrict6andConstantia.
AsmuchasCecilRhodeswasathoroughlyrepellentindividualhisstatueisatUCTbecause
hedonatedtheland.AndasfortheMountNelsongarb,whatismorerelevantthanits
condescendingappearanceishowitreflectsageneraltendencytowardsjoballocationbased
onraciallines.Otherwise,wellwrittenpiece,I'msureshehasagreatfutureasawriter.
9

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zanzi 6monthsago

AsfarasIknown,theauthorisentitledtoheropinionsevenifnoteveryoneagreeswithher.All
ofusare.Read,commentpolitelywithoutinsultingherorsendingherbackto'somedark
cornerofSA".It'scalledFREEDOMOFEXPRESSION.Howcantherebepeaceinthis
countryifwedonotlearntolistentoeachother'sexperienceandthoughts?Whereisitwritten
thatyouhavetoloveEVERYTHINGaboutthecityyoulivein?Nobodydoes.
12

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Rex>zanzi 6monthsago

exactly,wealsohaveouropinionandareallowedtoexpressitandallowedtodisagree
4

Share

YvonneHorak 6monthsago

Wehaveourhistoryhere..CecilJohnRhodesisperchedtherebecausehehashistoryhere
andYOUhavenone.!JanVanRiebeeckschoolisfinewithusthatHAVEanancestryhere
since1652andwedonotneedthelikesofYouandyouropinions,withNOAncestryhereto
speakof,towhatshouldbewhereandnamedwhat.Anamechangeisafarcemeans
nothingHISTORYremains,MustJanVanRiebeeckwhocameherenownowalsohavea
namechange?toWhat?Onecannotchangefactsandhistorynomatterwhatisdone,itis
recorded.AfterallCapeTownwasneveraBlackcityEVER,neitherwastheentire
Province.andhasit'sownculture.CapeTownanditsgenuinebornandbredhavetheirown
intertwinedcultures,food,languages,jokes,traditions..Wedonotevenknowwhoyouareand
thatyoueven"arrived"hereandwhatevergivesyoutheideathatyouwillbenoticedin
Restaurants,Malls,orforthatmatteranywhereorstandoutinacrowd..Thishasbeenatrading
postforcenturiesandweareusedtoallsortsofRacesand"Visitors"(BUTWedolikethem
tobejustthat"Visitors"here.)Itisactuallyreferredtooftenas"TavernoftheSeas"beinga
veryoldtradingroutebyourAncestors.WealsotravelandnavigatetheWorldregularlyasa
matteroffact..Youmustsurelyhaverealisedbefore,thatyouareblackandhavesomefamily
culture/traditionspassedontoyou?WearequiteusedtoBlackpeople.Theyhaveinfluxed
hereforafewdecadesalready.Nowifyouhadbeenbrightblue,itwouldbeadifferentmatter.
Youwouldbenoticedforsure.WealsohaveGermanSchool,JewishSchool,Frenchschool,
seemore

25

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BlackMonkey>YvonneHorak 6monthsago

Thisiswhatthekidistalkingabout.Youmayhavearrivedin1652.Thatdoesn't
changethefactthatyou'reonBlackland,yabish..
5

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YvonneHorak>BlackMonkey 6monthsago

Whatblackland?TherewerenoBLACKSasrecordedbynumerouscountries.
Therewerenotevenanyblackcsbeyondthefishrivertheywerestillmigrating
downSorryPalyouwillloosethatbattleinanyWorldCourt/UnitedNations
becauserecordedhistoryisfactsyourOPINIONisbulldust.TherewereNO
BLACKSrBlacktribesinW.Provincein1652yourancestorsdidnotevenknow
itexisted.Gospillyourbullto30%
illiteratesnottheGovernmentsoftheWordandtherecordedmanifest,reports,
mapsintheirarchivesandnthearchiveshere.Areyouignorantorareyou
stupid?.
8

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zanzi>YvonneHorak 6monthsago

Wealso"donotevenknowwhoyouare"Yvonne,orthat"youarrivedhere"!!!What
kindofananswerwasthat?"YouhavenorighttocriticizemytownorIwillscream
andkickinanger??"IfyouhaveaproblemtoFITIN,bettermoveon"??!!!Isthathow
youdebatewithateenagerofadifferentopinion?
Yourwordswouldhavehadmuchmoreweightwithlessspellingmistakesandless
anger,becauseyoudohaveapoint,abouttheCity'straditionandKine'sownculture,
maybe.
However,thismessageasitisjustsoundslikeanhystericalrant.Calmdownand
listen.Shewastreatedbadly.Shecansayit.Itdoesn'tmeanalltheCapetoniansare
terribleracists,asshealsosays"mostofmyfriendsarewhite".
7

Share

YvonneHorak>zanzi 6monthsago

Zanzi,youarerightpeoplealsodonotknowwhoIambecausepeoplehave
theirowncommunities,socialcirclesfamilyandfriendsthattheyassociatewith,
jobs,schoolobligationswiththeirchildren,andthatkeepsthembusyenough
withouthavingtimetoeventhinkwhetherothersarediscriminatingagainstthem
orwhethertheyarebeingacceptedornot.Thatsuitsmefinebecausewehave
ourownandmanysimilarCommunitiesinneighbouringsuburbsandTownsthat
wegettogetherwithregularly.Theselocalcommunitiescanseemclosedto
outsiderswhodonothaveanythingincommonwiththemasweexperienced
ourselves.whenwestayedinmanydifferentCountrieswithdifferent
cultures.Butwesoonovercamethataswejoinedwithanyexpatswhohad
similarculturesandtraditionsasus.Wenevertooktocriticizingtheir
cultures,theirlanguage,monuments,theirhistoryorthelocalsbyraceandwe
warnedofthisbeforehandandtoobeytheirlawsandrespecttheircultures..We
hadINFLUXEDintotheirenvironmentandWEhadtodotheadjustingnotthe
bornandbredpeoplethere.Wedidnotexpecttobewelcomedwithabigbrass
bandandknewthatwewouldjustbeanotherfaceamongstthemilionsthere,
especiallyinthebigCitiesintheFarEast.Wealsodidnotexpectanyallowance
tobemadeforus.Ifwehad,wewouldhavebeentotallydisillusioned.Wealso
seemore

Share

Peter 6monthsago

CecilJohnRhodesismyhero...HecameallthewayfromEuropetosayhellotoblackpeople.
6

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Peter 6monthsago

Puhleaze.ShehaspreconceptionsofCapeTownfromotherracists.Capetoniansaren'tracist.
Evenwhitepeoplegetdeliberatebadservice.That'sbarmanattitude.Theyonlygivethepretty
girlsgoodservice.It'stoweedouttheuglyonesfromthebar.Afterreadingthisarticle,I've
cometotheconclusionthatit'sthewriterherselfwhoisracistandnotCapeTownasawhole.
Youknowthesaying,"Theworldisareflectionofyourinnerself."Howyoufeelaboutthe
worldaroundyou,isbecauseofthethoughtsthatyoukeepandthataffectsthewayyou
engagepeopleandhowtheyrespondtooyou.
26

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KabeloMampholowaTAU>Peter 6monthsago

Wellsaid....
8

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Marsh 6monthsago

Howaboutapiecefromawhite16yearoldCapetonianaboutfittingininHillbrow?
19

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Markish>Marsh 6monthsago

IwasoncetoldintheheartoftheKenilworthbyagroupof10orsoblackmenthat"this
isnoplaceforwhitepeople".Anybodyfeelingtearyeyed?
11

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BlackMonkey>Markish 6monthsago

theyweresavingyourbuttfromgettingmugged,youidiot..
2

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CyberZen>BlackMonkey 6monthsago

Yousaidit!Withnosenseofirony,Isuspect.
2

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Markish>BlackMonkey 6monthsago

InKenilworth?Iknowit'sgonedownhillabitrecentlybutit'sstilla
decentarea.Lotsoffriendlycoloureds,neverfeltunsafethere..You're
notfromCapeTownareyou?
Thiswasjustanotherincidentofpisscatthugherdmentalityacting
toughinabiggroup.

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Guest 6monthsago

TimetomoveallmyrelativestoKaapstad....thedarkiesthatsideseemtobehidinginthenot
soadmirablepartsofthecity,hencethispoor16yearoldbeautifulblacksisterfeelsisolated.
Butonsecondthought,let'sratherletwhoeverfeelsentitledtoconquerthecityandprovince
(basedonwhodevelopedtheplace,whosettheirfootfirst,andwhatskincolourtheywere)
keepbelievingtheirfantasies,butsuchdaydreamersshouldunderstandsthatmzansiis
changingshapesoquickthey'llfindtheirkidsspeakingthelanguageofanethnicgroupthey
hatewholeheartedly.
Neomydear,expressyourselfnomatterwhatdynamicsyou'refacedwith.....yourpresidentis
black,yourafro'scool!!!!
5

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BlackMonkey>Guest 6monthsago

Andshe'sbeautiful..
1

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Markish>Guest 6monthsago

WhywouldyouwanttomovetoCapeTown?Why?Youobviouslydon'tcareforit's
historyyouobviouslydon'tlikewhitepeoplewhywouldyouwanttomovetothewhitest
placeinAfrica?You'vegotthewholeCountrytoyourselves,pleaseleaveusalone.
Youpeoplemoveallovertheworldtoliveamongwhitepeopleandthencomplainthat
theyareracist,surelyitwouldbemorelogicaltojuststayawayfromthem,you'vegot
therestofmassivecountrytodowithwhatyouwillbutinsteadyouseembenton
makingmakeCapeTownmoreAfrican,why?
PStheweatherhereiscrap.Thewildcoastisfarmorebeautifulandhasabetter
climate.
11

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BlackMonkey>Markish 6monthsago

Reallynow?

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KabeloMampholowaTAU>Markish 6monthsago

PleasevisitSTATSSAandcheckthepopulationstats....there'sabsolutelyno
wayyoucannotexpecttoseeanafricaninafrica.
4

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Markish>KabeloMampholowaTAU 6monthsago

I'msorrydidIsaytherewas?
2

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KabeloMampholowaTAU>Markish 6monthsago

Caseclosed

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Markish>KabeloMampholowaTAU 6monthsago

Umnonotreally.Idon'tseewhatyourreplyhastodowithmineatall?
CouldyouaddresssomeofthequestionsIasked?
Idontunderstandpeoplewhomovetoanewtownandthencomplain
aboutthepeoplelivingthere.Iwouldn'tmovetoDurbanandthen
complainthattherearetoomanyIndiansthereandwanteverybodyto
feelsorryformebecauseofmyperceptionthattheytreatmedifferently.
10

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BlackMonkey>Markish 6monthsago

ItsbecauseIndianshavenoillusionofwheretheyare..
1

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Bean>Markish 6monthsago

LeavetheIndiansoutofthis
3

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KabeloMampholowaTAU>Markish 6monthsago

Wellinthecaseofthis16yearoldyounggirl,itisobvioussheisstill
underhermother'sguardianship,soperhapstherewasn'tmuchof
choiceforhertomovethere(andperhapsyoualsohavetocometo
peacewithhefactthatyoudidn'tcometoafrica...youfoundyourself
here,solivewithit)IknowIpersonallywouldn'twanttostayinthe
westerncapesinceI'veexploredeverycorneroftheprovinceand
there'sjustnothingthereformeirrespectiveofhowmanywhitepeople
staythere.Sowedoagreeinthatyoushouldn'tmovetoaplaceonlyto
complain.
1

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Markish>KabeloMampholowaTAU 6monthsago

Fairdues.IknowyouweretakingthemickbutthislineTimetomoveall
myrelativestoKaapstad....thedarkiesthatsideseemtobehidinginthe
notsoadmirablepartsofthecity,hencethispoor16yearoldbeautiful
blacksisterfeelsisolated.Makesmethinkyouwereoneofthosewho
believeCapeTownistoowhiteandshouldbeasAfricanastherestof
theCountry.Ifeelforanychildwhoisinapositionwhereshefeelslike
anoutsider,sheshouldblameherMotherthenforsendinghertoawhite
schoolandmovingtothewhitestpartofthecontinent.IknowIdidnt
movetoAfrica,whatImtryingtogetacrossisthatwedidntasktobe
bornhere.SomeofusrealisethatwearentreallyAfricansandnever
willbe.Wehaveourownwayoflifeofwhichweareproudofandantto
preserve.Wearedifferentnotonlybecauseofskincolourbutfora
varietyofreasonsofwhichIamsureyouareaware.IfIcouldrewrite
historyIdstopEuropeansfromeversettingfootonthiscontinent.I
believethatracism/prejudicewhateveryouwanttocallitwillalwaysbe
around,peopleofdifferentethnicitieswillalwaysbeconsciousofthefact
thattheyaredifferent.Peoplewillalwaysfeeltheneedtobelong,its
completelynaturaltowantliveamongpeoplewithwhomyoushare
seemore

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BlackMonkey>Markish 6monthsago

Wow..Hesawthelight..

Share

Guest>Markish 6monthsago

Verywellsaid,it'slikebeingfatinagymnasticsclass...youbecomea
victimwithoutbeingvictimised.
1

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KabeloMampholowaTAU>KabeloMampholowaTAU 6monthsago

Markish,it'sactuallyunlikemetodebateaboutrace,soIhopeoneday
youwillenjoypeaceofmindandnotfeellike"WEPEOPLE"arealways
followingyouaround.Godbless
3

Share

Marsh 6monthsago

ThereasonsomeblackpeopledislikeCapeTownisbecausetheDAisinchargeandCape
Townisinafarbetterstatethananyoftheothercities/provinces.Theyconfusetheirown
prejudicewiththeirinabilitytofitin,whichmanypeoplewhomovetoCapeTownexperience.

12

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BlackMonkey>Marsh 6monthsago

Trashtalkbelongsinthebin..

Share

Marsh 6monthsago

"Iwassoveryyoung,soveryimpressionable,soveryexcited.."lol!You're16sweetheart!
10

Share

Asamatteroffact 6monthsago

"WhywasCecilJohnRhodesstillperchedontheUCTsteps?Howdothosekidsfeelabout
goingtoaschoolnamedafterJanvanRiebeeck?"Yousee,here'syourproblem...Youwantto
comeandliveinthemostsuccessfulprovinceinSouthAfrica,probablythebestrunprovince
inthewholeofAfrica...andyoudemanditscrapsitshistory,anddestroysallthebuilding
blocksthatmadeitagreatcity.Apparently,onlywhenwhitesgiveuptheiridentity,their
history,andtheirsuccessatFirstWorldadministration,willthelikesofyoubehappy.Then
youcouldlivehappilynonracial/contentedlyblackinanotherAfricanfailedprovince.Maybe
youshouldgotoEasternCape,that'sjustovertheborder.Youmayfindyourspiritualhome
failedprovincethere.No'nasty'remindersofRhodesorVanRiebeeck.Ormaybeyou'lljust
growup,afterallyou'reonly16.(I'mnotaCapetonianbytheway,butitiscertainlythe
provinceIaimtoretirein...inabidtofleethedecayofGautengandKZN).
20

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BlackMonkey>Asamatteroffact 6monthsago

Youidiot.ThewholeofSouthAfricawasunderonewhiteadministration.Yourfore
fathershadwaytoomuchfunandforgottocheckthemselves..thathowthehighwhite
andmightyfellandgotdemotedtooneprovince..Thenyoucometellmeabouthistory..
smh..KZNorGautengareonlydecayingbecauseoftheholesyouleftontheground
whileminingeveryounceofmineral.Otherwise,they'rebothdoingbetterthantheyever
didunderanywhiteadmin..
1

Share

Markish>Asamatteroffact 6monthsago

ThereisatinyinstitutioninGrahamstownyoumighthaveheardofcalledRhodes
university,Iimaginethey'llwanttochangethatsoon,thensoonafterthesettlers
monumentwillbedestroyed.I'msurprisedithasn'tbeenvandalisedyet.Thiswouldbe
hardtotakebutI'dbeokwithitsolongastheyjustleaveusaloneintheWC..
2

Share

RodneyNgwenya 6monthsago

Anotherracewar!thisraceissuereallyhastostop.Itdoesn'tmatterwhoserightorwrong,
afterallitisnotforanyhumanbeingtojudge.Iamhopefulforatomorrowwithoutracialwar.I
wouldliketoendbysayingthatbothblackandwhitearetobeblamedforracialcriticismbut
wecanstillworkonit.Iknowitisnoteasytochangethemindsetofoldfolks(fromboth
parties)butitisnottoolateforyoungSouthAfricanstoworkonit.
ToDineo,sorrytosaythisbutIthinkyourarticleisasracistasyourexperience.AllI'msaying
isdon'targuewithafool(racisttendencies)becausepeoplemaynotseethedifference.
24

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Markish 6monthsago

Ifitweren'tforCecilJohnRhodesandJanVanRiebeeck90%ofwhiteSouthAfricanswould
neverhavebeenborn.
3

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"B"

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.zawww.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 Africas (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 Africas 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.

MMA Submission to the Independent Newspapers User-Generated Content Panel

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

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

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 Prisas 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

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 postmoderated 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

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

Read the full article here: http://www.iol.co.za/capeargus/black-in-cape-town-brace-yourself1.1735771#.VFd6szSUdmO

MMA Submission to the Independent Newspapers User-Generated Content Panel

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 ones anonymity on the internet is vital, but using a recognised
media brand to air ones 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

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

Read the full article here: http://www.iol.co.za/capeargus/black-in-cape-town-brace-yourself1.1735771#.VFd6szSUdmO

MMA Submission to the Independent Newspapers User-Generated Content Panel

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

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 dont 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

10

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

11

ANNEXURE B International approach to regulation of user-generated comments

Country
Spain

PreModeration

PostModeration

Eldiario.es

El Pais

El Mundo

Newspaper

Free speech

Identification

As long as user
respects
conditions of
participation

As long as user
respects
conditions of
participation

Previous register
Subscribers have
special
consideration:
stands out with
special feature

Previous register:
Use of an
encrypted code to
avoid intruders

As long as user
respects
conditions of
participation
To boost
conversation
and exchange of
ideas and
opinions

Previous register

Chat option
(answer)

Considered as a
virtual community:
you can follow and
be follow by other
users

Considered as a
virtual community:
follow users and
stories and be
followed

Considered as a
virtual community:
you can follow and
be follow by other
users

Users
commenting on
other comments

Report
abuse

Limited
age

14

By a system of
taps, you can see
the ones that get
best evaluations
and the ones that
mention your own
comments

MMA Submission to the Independent Newspapers User-Generated Content Panel

16

12

Country

Newspaper

PreModeration

PostModeration

Free speech

Identification

Chat option
(answer)

Germany

Die Zeit

As long as user
respects
conditions of
participation

Previous register

UK

The Guardian

As long as user
respects
conditions of
participation

Previous register

France
Argentina

Le Monde
Clarin

Chile

La tercera

Mexico

El universal

Users
commenting on
other comments

By a system of
taps, you can see:
All comments/
Staffrecomm./
Usersrecomm

By a system of
taps, you can see:
All comments/
Staffreplies/
Guardian picks

Report
abuse

Limited
age

16

Since it only allows to comment after having subscribed to the newspaper and paid, the users activity is extremely scant
No specifications

Previous register
No specifications

Previous register
No specifications

Through Facebook
account

Usually, 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

13

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 wont 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
wont be published.
3. Personal attacks and messages with no rapport to the conversation wont 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 users messages dont 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 users 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
Prisas 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

14

o Post or otherwise transmit any content that contains software viruses or any other computer code, files, or
o
o

programs designed to interrupt, destroy, or limit the functionality of the Guardian Site or any computer
software or hardware or telecommunications equipment;
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,
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.

2.

3.

4.

5.

6.
7.

8.

9.

10.

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.
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.
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.
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.
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.
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.
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.
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.
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.
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

15

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

16

ANNEXURE C African approach to regulation of user-generated comments

Country

Newspaper

Kenya

Daily Nation /
Standard / The Star
/ The Sub-Saharan
Informer

Egypt

Daily News Egypt

Egypt Today

Al-Ahram Weekly

Nigeria

South Africa

The Guardian

The Nation
Tribune
Punch
M&G
Timeslive
City Press

PostUsers
Report
Mode
Free speech
Identification
Chat option (reply)
commenting on
abuse
ration
other comments
Although Disqus* affirms that

it doesnt moderate or
Previous register /
Any reader can
censure any comment, it has
You can also get in
vote up, but to
a list of forbidden behaviors.
through social
vote down you
Besides, the newspaper can
media: FB/Tw/ G+
have to be
do it. Yet there is no
registered
appreciation relating to this
Name / email /
on the comments interface
password/avatar
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
Ruled by Disqus
X
X
X
X

Identification
You can be notified
every time you
by email if s.o.
comment
replies your
comment or posts
Name / email
a new one
X
X
X
X
X

Identification
every time you
comment
PreModeration

Limited
age
13

Name / email
Since it is not working properly, there are no

comments and it is not possible to check the features

Previous register
(Although
currently not
working)
Ruled by Disqus*
Ruled by Disqus*
Ruled by Disqus*
Ruled by Disqus*
To comment on a story you have to send an email to the newspaper. This method may discourage public participation
Ruled by Disqus*
X

MMA Submission to the Independent Newspapers User-Generated Content Panel

17

*International platform Disqus https://help.disqus.com/customer/portal/topics/215159-terms-andpolicies/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 wont 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.

MMA Submission to the Independent Newspapers User-Generated Content Panel

18

"C"

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

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
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 medias 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 peoples

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 publics 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 talks 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 premoderation 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 others 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 FXIs 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 times 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 anothers 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 FXIs 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-contentmoderation-emerging-best-practices

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

"D"

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 Newspapers
User- Generated Content Panel (Panel). These submissions are limited to the broader principle
based issues that must, in our view, be considered.
2. Section 16 is a non-profit and non-governmental organisation that advocates for law reform in
the area of freedom of expression and access to information. Its mandate is to defend and
advance the right to freedom of expression, including media freedom, and access to information
in South Africa.
3. The right to freedom of expression, including media freedom, is entrenched as a fundamental
right in our constitutional democracy by Section 16 of the Constitution. This submission is based
on the principle that the medias primary role is the performance of this constitutionally
mandated function of providing the public with information and the facilitation of access and
dissemination of information. This function is central to South Africas democracy and the
furtherance of many other rights.
4. However the right to freedom of expression is not without limit and requires careful balancing
with all other rights protected by the Constitution. Media practitioners and individuals are
obliged to strike the balance between all rights, each and every time they publish content. This is
very 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 created
the platform for every single individual to publish content with ease. However, media
practitioners and entities still occupy a significant role in the online arena and the dissemination
of 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

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 the
terms and conditions of use of the website to include an acceptance of the regulatory bodies
code of conduct and the amendment of such codes to provide for this arena. However, this
requires thorough consideration.
20. Considering the aforementioned, the question of whether or not to allow user generated
commentary on Independent Newspapers websites without a pre-publication vetting process
should still be answered in the affirmative.
21. Section 16 remains available for further consideration and discussion of these submissions and
the important issues currently under consideration by the Panel.

Yours Faithfully
Melissa Moore
Executive Director

"E"

"F"