Countries have come to the realization that
they will need to develop policies to address the
social and political ramifications associated with
the availability of obscene content online as the
Internet spreads through the region. For example, the Malawi ICT for Development (ICT4D) policy calls on the government to “put in place
mechanisms that will safeguard girls, boys and
women from fraud, misuse of information and
immoral behavior brought about by the use of
ICTs” and puts the Malawi Censorship Board in
charge of “addressing ethical issues of the digital culture in order to ensure the protection of the
rights of the vulnerable consumers.” 66 Tanzania’s
ICT policy document comes to a similar conclusion, stating that “the Government will seek to
discourage inappropriate use of ICT that is detrimental to our cultural values, ethics, mores, and
morality such as viewing pornography.” 67
Countries with greater Internet penetration
rates than Malawi and Tanzania, at 0.4 percent
and 0.9 percent respectively, 68 are further along
in their handling of the issue. Nigeria, for example, with a 4 percent penetration rate, 69 is currently considering the Computer Security and
Critical Information Infrastructure Protection Bill
2005, which would explicitly make distribution of
child pornography online a crime. 70 In Clause 12
of Ghana’s (which has a 2 percent penetration
rate) 71 Computer and Computer Related Crimes
Act, 2005, there are strict prohibitions for online
child pornography. 72 South Africa, with the highest penetration rate in sub-Saharan Africa, at
about 11 percent, 73 took the most drastic step of
all when, in September 2006, the government
notified all pornography sites hosted in South
Africa that they must cease posting XX and X18
classified materials by December 31, 2006, or
face criminal action under the Film and
Publications Act 1996. 74 So far, the vast majority
of pornography sites have complied and
removed their infringing content, but some
remain. The government is currently compiling a
list of sites that have refused to remove their content for shut-down and prosecution. 75
In sum, it appears likely that obscene content on the Internet will be increasingly regulated
as Internet development progresses in the
region. Obscenity laws that might be applied to
Internet content already exist in most subSaharan countries. As the South African precedent has shown, decisive action is a possibility.
Defamation
As discussed in the legal framework section,
most countries in this region have existing
defamation or insult laws restricting what can be
broadcast or published. For example,
Botswana’s Penal Code bans insults directed at
its president and flag. 76 As many of these laws in
the region are criminal, free expression watchdog
groups such as the International Freedom of
Expression Exchange (IFEX) have called for their
repeal. 77
Few countries in sub-Saharan Africa, however, have put their defamation laws to use in the
Internet sphere. South Africa is an exception, as
it often is, with a small amount of case law relevant to civil defamation over the Internet. In the
case of Tsichlas v. Touch Line Media, the manager (Natasha Tsichlas) of a South African soccer
team filed suit against Touch Line Media for
anonymous defamatory posts directed at her on
Touch Line’s Web site, Kick Off. Among the
“prayers” of the suit was a requirement for Touch
Line to actively monitor posts on Kick Off for
defamatory material. 78 The judge found, however, that freedom of speech on the Internet would
be significantly curtailed if the hosts of discussion
boards were required to self-regulate material
posted on their sites. 79 What makes this ruling
interesting is that 1) it upheld the principle of limited liability for content hosts under a system of
takedown notices similar to the U.S. Digital
Millennium Copyright Act (DMCA) for defamatory,
copyright infringing, and illegal material, as instituted by the Electronic Communications and
Regional Overviews
217
they will need to develop policies to address the
social and political ramifications associated with
the availability of obscene content online as the
Internet spreads through the region. For example, the Malawi ICT for Development (ICT4D) policy calls on the government to “put in place
mechanisms that will safeguard girls, boys and
women from fraud, misuse of information and
immoral behavior brought about by the use of
ICTs” and puts the Malawi Censorship Board in
charge of “addressing ethical issues of the digital culture in order to ensure the protection of the
rights of the vulnerable consumers.” 66 Tanzania’s
ICT policy document comes to a similar conclusion, stating that “the Government will seek to
discourage inappropriate use of ICT that is detrimental to our cultural values, ethics, mores, and
morality such as viewing pornography.” 67
Countries with greater Internet penetration
rates than Malawi and Tanzania, at 0.4 percent
and 0.9 percent respectively, 68 are further along
in their handling of the issue. Nigeria, for example, with a 4 percent penetration rate, 69 is currently considering the Computer Security and
Critical Information Infrastructure Protection Bill
2005, which would explicitly make distribution of
child pornography online a crime. 70 In Clause 12
of Ghana’s (which has a 2 percent penetration
rate) 71 Computer and Computer Related Crimes
Act, 2005, there are strict prohibitions for online
child pornography. 72 South Africa, with the highest penetration rate in sub-Saharan Africa, at
about 11 percent, 73 took the most drastic step of
all when, in September 2006, the government
notified all pornography sites hosted in South
Africa that they must cease posting XX and X18
classified materials by December 31, 2006, or
face criminal action under the Film and
Publications Act 1996. 74 So far, the vast majority
of pornography sites have complied and
removed their infringing content, but some
remain. The government is currently compiling a
list of sites that have refused to remove their content for shut-down and prosecution. 75
In sum, it appears likely that obscene content on the Internet will be increasingly regulated
as Internet development progresses in the
region. Obscenity laws that might be applied to
Internet content already exist in most subSaharan countries. As the South African precedent has shown, decisive action is a possibility.
Defamation
As discussed in the legal framework section,
most countries in this region have existing
defamation or insult laws restricting what can be
broadcast or published. For example,
Botswana’s Penal Code bans insults directed at
its president and flag. 76 As many of these laws in
the region are criminal, free expression watchdog
groups such as the International Freedom of
Expression Exchange (IFEX) have called for their
repeal. 77
Few countries in sub-Saharan Africa, however, have put their defamation laws to use in the
Internet sphere. South Africa is an exception, as
it often is, with a small amount of case law relevant to civil defamation over the Internet. In the
case of Tsichlas v. Touch Line Media, the manager (Natasha Tsichlas) of a South African soccer
team filed suit against Touch Line Media for
anonymous defamatory posts directed at her on
Touch Line’s Web site, Kick Off. Among the
“prayers” of the suit was a requirement for Touch
Line to actively monitor posts on Kick Off for
defamatory material. 78 The judge found, however, that freedom of speech on the Internet would
be significantly curtailed if the hosts of discussion
boards were required to self-regulate material
posted on their sites. 79 What makes this ruling
interesting is that 1) it upheld the principle of limited liability for content hosts under a system of
takedown notices similar to the U.S. Digital
Millennium Copyright Act (DMCA) for defamatory,
copyright infringing, and illegal material, as instituted by the Electronic Communications and
Regional Overviews
217