By Nkululeko Xaba (South Africa)
Technology firms have enormous influence to the discourse of the people, access to information and even the stability of democracy in digital age. Meta Platforms, the parent company of Facebook, WhatsApp, and Instagram, is one of the strongest of these companies. Although Meta is a global entity, a key question, in the South Africa context, is the following: does Meta actually acknowledge and honor South African legal frameworks in terms of safeguarding users, as well as, collaborating with the national government?
South Africa and Meta have a history of an ill relationship over the past few years. The platforms of Meta have a broad range of operations in the country and collect a lot of revenue in the form of advertising, user data, and digital content creation. However, such activities are not accompanied by the commensurate corporate accountability to the South African state or the citizens.
Moreover, the corporation has been aggressive in policy debates so as to manipulate national laws. An example of this is where Facebook submitted submissions to the Independent Communications Authority of South Africa over the draft National Radio Frequency Plan in the year 2021. It indicates that Meta is not afraid to interact with South African institutions where the outcomes of the regulation have implications on its business interests.
Nevertheless, this situation seems to be different as the user protection and legal compliance are considered. Various incidents question the concern of whether the safety and rights of South African users are of high priority to Meta. In particular, in 2022, the Competition Commission of South Africa referred Meta to be prosecuteed before the Competition Tribunal of South Africa on allegations of dominance abuse, by removing the platform GovChat to WhatsApp.
GovChat is a notable civic technology, which aims to assist citizens to communicate directly with the government representatives in the effort to solve service delivery issues. The deletion of such a platform had some severe implications of local digital infrastructure being under the control of global technology corporations. Worse still, the social media had a significant role to play during the July 2021 civil unrest in South Africa that ensued after the arrest of a former president, Jacob Zuma. The riots, as experienced in the northern region of KwaZulu-Natal and in Gauteng, had an overall effect of riots, looting, and killing of about 354 citizens.
There was a wide destruction of public and private infrastructures. After an inquiry, the South African Human Rights Commission came up with a conclusion that social media sites were a potent factor that contributed to the turmoil. The Commission reported that viral inflammatory content was rampant on Facebook, as well as other social media platforms, and organized people to engage in violent acts. WhatsApp voice messages and anonymous messages were spread that encouraged what was called a patriotic revolution to release Zuma.
The conflict also caused racial tensions especially between the communities of Zulu and Indian. Social media hashtags like #IndiansMustFall have gone viral and contribute to the breakup of even more. Even the claims that Duduzile Zuma, a daughter of the former president, was using social media to promote protests and looting emerged. Although the extent of the unrest and press reports in the media like the BBC are significant, critics believe that Meta did not take stringent emergency actions to discourage propagation of harmful information. This perceived lack of action is contrasted with that of Meta in the storming of the United States Capitol in January 2021, when the company did apply emergency break-the-glass measures to contain the spread of violent content.
The inequality leads to a disconcerting question: do the users in developing countries have the same protection as the users in the Western democracies? The question of accountability will be also raised as far as the inner policies of cooperation between Meta and the law enforcement. The company has also put in place distinct legal procedures of responding to user data requests. In the case of the United States, user information disclosure is regulated by the Stored Communications Act that permits releasing such information when submission of a valid subpoena, court order, or search warrant under the U.S. law takes place. Likewise, the European country requests are managed as per the European laws in the regional operations of Meta in Ireland.
Nevertheless, non-regional countries such as South Africa are classified under a general term known as international legal process. The disclosure of the information of the user under this policy can need either the Mutual Legal Assistance Treaty (MLAT) requests or letters rogatory. These processes are very complicated, time consuming, and unavailable to the developing nations. The policy language also specifies that the requests can be handled as per the terms of service and the law of Meta. It is still uncertain but it should acknowledge some major South African laws, including the Cybercrimes Act 19 of 2020, the Electronic Communications and Transactions Act 25 of 2002, and the Criminal Procedure Act 51 of 1977.
In case Meta was aware of such laws in full, it would accept the subpoenas issued by the South African High Court presumably. Rather, authorities have to take more legal obstacles on the way of cooperation. This difference gives an impression that the Meta puts more emphasis on the legal systems in the United States and Europe and places the developing countries on a second tier list. This would be plausible considering that Meta was a state-owned organisation on behalf of a particular government. But it is not. Meta is a privately held multinational enterprise that is based in the world. The Statista and NapoleonCat show that in 2023 alone, Facebook had over 30 million users in South Africa.
Considering that the South Africa population is about 63 million, then it will be more or less half of the country is on facebook, not taking into account WhatsApp or Instagram. These figures highlight the tremendous impact that the platforms of Meta have on the South African society. There is responsibility with such power. When international technology firms want to conduct business in such nations as South Africa, they should make sure the laws of the countries are not violated, data security, and uphold democracy. And the point is not simply whether Meta knows about South African law, but rather, whether the digital platforms all around the world are ready to acknowledge equal responsibility and protection to users, irrespective of their location.
