Member Article

Directions pertaining to the communications sector were issued on 26 March 2020 by the Minister of Communications and Digital Technologies (the "Minister"), to ensure the smooth operations of the electronic communications sector – as essential services – during the disaster period to combat the spread of the coronavirus (COVID-19) in South Africa. These directions, published in theGovernment Gazette, have been issued pursuant to regulation 10(8) of the Regulations issued in terms of section 27(2) of the Disaster Management Act, 2002 (the “Regulations”).

The purpose of the directions is to ensure the availability and use of digital technologies to combat the spread of COVID-19 in South Africa, in regard to the dissemination of real-time public information, upgrades and access to infrastructure and services, the tracking and tracing of persons and to support education and health sectors and local government.

The vast majority of the directions apply to and impose obligations on electronic communications network and service licensees (“licensees”); commercial and community broadcasters; internet service providers (“ISPs”); companies that provide “over the top” services (“OTTs”) and postal service licensees (including courier services).

The directions also apply to all property owners (both public and private) and are intended to remove obstacles to and facilitate the rapid deployment of electronic communication networks and services to address increased demand and usage of services. These obligations also include requirements for broadcasters to broadcast public service announcements related to the national combat effort.

We provide a summary of the directions below. The full notice containing the Directions is accessible here. However, we highlight a few general noteworthy points that affect businesses that are not licensees, as well as consumers. These include a requirement:

1. That any website operating with a .za top level domain name, contain a visible link on its landing page to the national COVID-19 website: sacoronovirus.co.za. We interpret the directions to require all websites that fall under the .za domain name administration (including .co.za; .org.za; ac.za) to comply with this requirement as soon as is reasonably possible.
2. That to combat the spread of incorrect information, all licensees, OTTs and ISPs have the responsibility to remove fake news related to COVID-19 from their platforms immediately after this has been identified.
3. No price increases (which we interpret to mean on any communications service) may be effected during the COVID-19 disaster.
4. No number portability between operator networks may be effected during this time.
5. Property owners may not charge an access fee to licensees who seek to deploy infrastructure and services, where such deployment is “non-intrusive” (eg, the cables are buried or overhead and do not constitute a cost to the property owner, or deprive the property owner of its own use of the land). However, reasonable access fees may be charged in instances where more intrusive measures are used, for example if a mast is erected on the property. In this regard, a reasonable access fee must be in proportion to the disadvantage suffered and must not enrich the property owner or exploit the licensee.
6. Licensees must provide zero-rated access to local educational content websites and broadcasters must increase their educational programmes and must provide programming and public announcements related to the COVID-19 disaster.
   
   

Obligations on licensees

• All broadcasters are required to receive and disseminate public information (in all local languages, including sign language) related to the national effort to combat the spread of Covid-19.
• All licensees with access to the radio frequency spectrum are required to make their platforms available for the streaming of public announcements to their customers and subscribers.
• All licensees must ensure the continued provision of services and when requested to do so, rapidly deploy temporary electronic communication networks and services in identified areas (after consulting with relevant ministers).
• To ease network upgrades related to the COVID-19 disaster, a licensee may seek approval to deploy infrastructure without delay. Ministerial interventions in this regard may include temporary deferment of wayleaves and the payment of fees following an agreement being reached between the relevant parties (the directions do not, however, specify how such an application will be made or processed).
• All licensees will be required to submit reports to the “Authority” (which we read to mean the Independent Communications Authority of South Africa) of all new infrastructure and network facilities installed in response to COVID-19. In this regard, the Authority is required to keep a register of all new infrastructure and network facilities.
• To support tracking and tracing of persons, all licensees, and the internet and digital sectors in general, must provide location-based services in collaboration with the relevant authorities identified to support designated departments to combat the spread of COVID-19. In this regard, the South African Post Office is required to make its national address system available to assist the relevant authorities with track and trace efforts of individuals that have been infected or in direct contact with infected persons.
• In support of the health and education sectors, any licensee with access to high-demand spectrum must make connectivity available to 104 district virtual classroom platforms with minimum speeds of 10MBs and must zero-rate all COVID-19 sites as identified by the Department of Health.
  
  

Responsibilities of the Authority

• For the duration of the COVID-19 disaster, the Authority must prioritise the regulatory framework for the management and licensing of radio frequency spectrum, to enable the implementation of this direction on an urgent basis. The direction further states that “to the extent possible”, and for the duration of the COVID-19 disaster, the Authority is required to relax spectrum regulations to enable the temporary licensing of all available spectrum bands, including high-demand spectrum. The temporary assignment of high-demand spectrum must, however, be focused on those licensees that will be able to implement and use the assigned spectrum for the duration of the COVID-19 disaster on an expedited basis.
• Automatic type approval of network equipment and handset devices will be based on the applicants meeting certain predetermined criteria, which includes:
  • prior approvals in South Africa and other recognised jurisdictions;
  • submission of safety certification; and
  • online real-time approvals already approved in the other jurisdictions in Region 1.
    
    

The Directions list various roles to be performed by certain state-owned entities to assist with the COVID-19 disaster in accordance with their various capabilities. These include:

• Broadband Infraco, Sentech, Transnet, Eskom, PRASA and SANRAL,who are required to make any excess capacity on their fibre networks available for the connection of key government installations, including essential services in local government and SMMEs to ensure business continuity;
• The Universal Services and Access Agency and Fund,which must use funds earmarked for the provision of broadband, to support district and local municipalities to improve their broadband and digital government capabilities to mitigate the negative impact of COVID-19 on service provision to citizens;
• The State Information Technology Agency, which is required to ensure that government departments are able to function remotely; and
• The South African Post Office and Postbankmust support SASSA in the measures implemented to effect the payments of social grants.
  
  

The directions are silent on failure to comply.

The offences and penalties contained in the Regulations appear to have little if any, applicability to non-compliance with these directions. However, it may be arguable that failure to comply with the requirement for a licensee, OTT provider and ISPs to remove fake news related to COVID-19 from their platform immediately after this has been identified, may fall within section 11(5) of the Regulations. These state in relevant part, that:

“Any person who publishes any statement, through any medium, including social media, with the intention to deceive any other person about- (a) COVID-19; (b) COVID-19 infection status of any person; or (c) any measure taken by the Government to address COVID-19, commits an offence and is liable on conviction to a fine or imprisonment for a period not exceeding six months, or both such fine and imprisonment.”

Should you require any assistance in interpreting or understanding your obligations as a result of these regulations, please contact:

Tracy Cohen

Technology, Media and Telecommunications Growing Business Executive

[email protected]

+27 82 999 0202

Wilmari Strachan

Technology, Media and Telecommunications Director

[email protected]

+27 82 926 8751

COVID-19, also known as the Coronavirus, is an infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) that was declared a pandemic by the World Health Organization on 11 March 2020. The disease has since been reported in over 190 countries.