Broadly speaking, the communications industry in South Africa includes media, telecommunications, broadcasting and e-commerce.
The legislation and common law that regulates media in South Africa is subject to the Constitution of the Republic of South Africa, 1996, and the rights it upholds. The most salient of these are the rights to freedom of expression, dignity and the right to privacy.
While the law seeks to uphold these rights, they are not absolute rights. Therefore, in certain cases, an infringement of one or other right may be justified if it involves the protection of another more important right or is for a legitimate cause.
Further legislation pertaining to the protection of privacy includes: the Protection of Personal Information Act, which addresses South Africa's need for data protection; and the Regulation of Interception of Communications and Provision of Communication-Related Information Act, No. 70 of 2002, which seeks to regulate the interception of certain communications and the provision of certain communication-related information.
Telecommunications and broadcasting services in South Africa are regulated by the Electronic Communications Act, No. 36 of 2005 (ECA). Except for services that are exempted, no person may provide a broadcasting service, electronic communications service or electronic communications network service without a licence.
The ECA makes provision for the licensing of three categories of services:
- electronic communications network services, which involve the roll out and operation of electronic communications networks and the provision of electronic communications network services;
- electronic communications services, which involve the provision of electronic communications services to customers over a network; and
- broadcasting services, which involve the provision of broadcasting services.
There are also legislative measures to ensure the safe practice of e-commerce and promote meaningful black participation in the information communications technology sector.
“Except for services that are exempted, no person may provide a broadcasting service, electronic communications service or electronic communications network service without a licence.”
For a comprehensive document outlining the implications of this area of law in South Africa