Human Rights and the Fourth Industrial Revolution in South Africa 9780796926173

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Published by HSRC Press Private Bag X9182, Cape Town, 8000, South Africa www.hsrcpress.ac.za First published 2021 ISBN (soft cover) 978-0-7969-2609-8 ISBN (pdf) 978-0-7969-2610-4 © 2021 Human Sciences Research Council The views expressed in this publication are those of the authors. They do not necessarily reflect the views or policies of the Human Sciences Research Council (‘the Council’) or indicate that the Council endorses the views of the authors. In quoting from this publication, readers are advised to attribute the source of the information to the individual authors concerned and not to the Council. The publishers have no responsibility for the continued existence or accuracy of URLs for external or third-party websites referred to in this book and do not guarantee that any content on such websites is, or will remain, accurate or appropriate. Copy-edited by Debbie Rodrigues Typeset by Andy Thesen Cover design by Riaan Wilmans Printed by Novus Print Distributed in Africa by Blue Weaver Tel: +27 (021) 701 4477; Fax Local: (021) 701 7302; Fax International: 0 927 865242139 www.blueweaver.co.za Distributed in Europe and the United Kingdom by Eurospan Distribution Services (EDS) Tel: +44 (0) 17 6760 4972; Fax: +44 (0) 17 6760 1640 www.eurospanbookstore.com Distributed in United States, Canada and Asia, except China, by Lynne Rienner Publishers, Inc. Tel: +1 303 444 6684; Fax: +001 303 444 0824; Email: [email protected] www.rienner.com No part of this publication may be reproduced, stored in a retrieval system, or transmitted by any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior permission from the copyright owner. To copy any part of this publication, you may contact DALRO for information and copyright clearance. Tel: 086 12 DALRO (or 086 12 3256 from within South Africa); +27 (0)11 712-8000 Fax: +27 (0)11 403-9094 Postal Address: P O Box 31627, Braamfontein, 2017, South Africa www.dalro.co.za Any unauthorised copying could lead to civil liability and/or criminal sanctions. Suggested citation: Rachel Adams et al. (2021) Human Rights and the Fourth Industrial Revolution in South Africa. Cape Town: HSRC Press

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The wealth of science, technology and arts should enrich peoples’ lives, not enable their slaughter. Wizard of the Crow, Ngũgĩ wa Thiong’o

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Contents List of figures and tables Abbreviations and acronyms

viii ix

Acknowledgements xi Foreword

xiii

Introduction xix 1 The 4IR in South Africa: Development, unemployment and inequality

1

2 Data governance in South Africa: Cybersecurity and the right to privacy

22

3 Predictive policing and digital justice

41

4 Bias, discrimination and the digital divide

58

5 Internet rights and responsibilities: Freedom of expression and hate speech

73

6 Socioeconomic rights in the 4IR: Transparency, accountability and the role of non-state actors

93

7 The way forward

108

Endnotes

138

Glossary

140

References 144 About the authors

161

Index

162

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List of figures and tables Figures Figure 1 Figure 2

The four industrial revolutions Key recommendations for promoting and protecting human rights in the 4IR Figure 4.1 Proportion of households with access to the internet by population group of household head (2009–17) Figure 4.2 Proportion of households with access to the internet by settlement type (2009–17) Figure 4.3 Proportion of households with access to the internet by sex of household head (2009–17) Figure 4.4 Bias in AI systems

xx xxvii

61 62 63 70

Tables Table 1 Table 1.1

Key human rights implications of the 4IR and AI xxii SDGs that relate to the 4IR 4

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Abbreviations and acronyms 3IR Third Industrial Revolution 4IR Fourth Industrial Revolution ACHPR African Charter on Human and Peoples’ Rights ACRWC African Charter on the Rights and Welfare of the Child Adirf African Declaration on Internet Rights and Freedoms ADM automated decision-making AfriSIG African School on Internet Governance AI artificial intelligence APC Association for Progressive Communication C4IR-SA Centre for the Fourth Industrial Revolution South Africa CC Constitutional Court CGE Commission for Gender Equality Cogta Department of Cooperative Governance and Traditional Affairs Compas Correctional Offender Management Profiling for Alternative Sanctions Covid-19 coronavirus disease 2019 CPA Criminal Procedure Act (No. 51 of 1977) CPS Cash Paymaster Services Crispr clusters of regularly interspaced short palindromic repeats CSIR Council for Scientific and Industrial Research DBE Department of Basic Education DCDT Department of Communications and Digital Technologies DHET Department of Higher Education and Training DPIA data protection impact assessment DSBD Department of Small Business Development DSI Department of Science and Innovation dtic Department of Trade, Industry and Competition DTPS Department of Telecommunications and Postal Services ECA Electronic Communications Act (No. 36 of 2005) Ecta Electronic Communications and Transactions Act (No. 25 of 2002) FXI Freedom of Expression Institute GDPR General Data Protection Regulation, 2018 HSRC Human Sciences Research Council ICCPR International Covenant on Civil and Political Rights

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human rights and the 4th industrial revolution in south africa

IDRC

International Development Research Centre

IEC

Electoral Commission of South Africa

IoT

internet of things

Irsa

Information Regulator (South Africa)

ITU

International Telecommunication Union

MMA

Media Monitoring Africa

NCA

National Credit Act (No. 34 of 2005)

NDP

National Development Plan

Nedlac

National Economic Development and Labour Council

NHRI

national human rights institution

NPC

National Planning Commission

OECD

Organisation for Economic Co-operation and Development

OGP

Open Government Partnership

Paia

Promotion of Access to Information Act (No. 2 of 2000)

Pepuda

Promotion of Equality and Prevention of Unfair Discrimination Act (No. 4 of 2000)

Popia

Protection of Personal Information Act (No. 4 of 2013)

Rica

Regulation of Interception of Communications and Provision of Communication-Related Information Act (No. 48 of 2008)

SADC

Southern African Development Community

SAHRC

South African Human Rights Commission

Saps

South African Police Service

Sassa

South African Social Security Agency

SDGs

Sustainable Development Goals

SME

small and medium enterprise

SSA

State Security Agency

Stem

science, technology, engineering and mathematics

UNCRC UN Convention on the Rights of the Child UNHRC UN Human Rights Council Unido

UN Industrial Development Organisation

WEF

World Economic Forum

WPP

White Paper on Policing

WPSS

White Paper on Safety and Security

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Acknowledgements This book is based on the report emanating from the workshop hosted by the SAHRC on 5 and 6 March 2020 regarding the role of the SAHRC as an NHRI in the context of the changing social conditions associated with the 4IR. The report, commissioned by the SAHRC and entitled ‘The human rights implications of the Fourth Industrial Revolution in South Africa’, was authored by the HSRC. The authors are grateful to a number of individuals for their contributions to the report, and ultimately to this book. These individuals include those who presented at the SAHRC workshop in March 2020, particularly William Bird, Akhona Damane, Hlengiwe Dube, Angelo Fick, John Gathairu, Victor Kgomoeswana, Dale McKinley, Samhelo Mokhine, Izaak Minaar, Vincent Mzazi, Thami Nkosi, Varsha Sewlal, Alison Tilley and Collen Weapond. Particular thanks is extended to Heidi van Rooyen, Fola Adeleke and Gabriella Razzano for their insightful reviews of this book.

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Foreword Life, liberty and the pursuit of happiness are the essence of human rights.1 It is the endeavour to realise these rights – the birthright of all human beings – that should constitute the basis of the formation and legitimacy of governments. Indeed, as restated in numerous instruments such as the 1993 Vienna Declaration and Programme of Action2 (hereafter the Vienna Declaration) and the South African Constitution,3 the main – if not the sole – purpose of any democratically elected, effective and caring government is the protection and promotion of human rights. The universal nature of human rights, their interdependence, indivisibility and interrelatedness, make their protection and promotion a global concern. It is often said that what affects human rights in one part of the globe has an impact on the rest of the globe in one form or another. The spread of the novel coronavirus is a sad and worrying reminder of this phenomenon today. Throughout the history of humankind, advances in technology have brought tremendous benefits and improvements in the quality of life of human beings while at the same time putting humanity and life on earth at risk in new ways. In this regard, we can refer to the invention of the wheel, steam and combustion engines, aeroplanes, missiles, nuclear energy and nuclear weapons, computers and telephones, and developments in chemical and biological warfare and their impact – both positive and negative – on society. Advances in medicine, food production, communication, transportation, education and housing are examples of the positive impacts of technological advances. However, the First and Second World Wars, including the detonation of nuclear bombs over Hiroshima and Nagasaki, and the use of Agent Orange4 by the US in the Vietnam War to eliminate forests, are all examples of their dire negative effects.

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It is the impact of technological advances on human rights that led heads of state and government at the 1993 World Conference on Human Rights held in Vienna to express concern about the potential ‘adverse consequences for the integrity, dignity and human rights’ of certain advances in biomedicine, life sciences and information technology. Collectively, a call was made for international cooperation in addressing their possible impact on human rights.5 Technologies that fall under the Fourth Industrial Revolution (4IR) have and will continue to have a far bigger impact on humanity than technological advances in previous industrial revolutions at levels that could not have been imagined a few centuries ago, other than in science fiction books and movies. Indeed, the 4IR is set to have a major impact on all aspects of life, both in South Africa and globally. The major technological developments associated with the 4IR – which include artificial intelligence (AI), the internet of things (IoT), biotechnology, robotics, autonomous vehicles, 3D printing, quantum computing and nanotechnology – hold much promise for human development and improvement of quality of life. Yet, as this book shows in depth, these technologies are a double-edged sword, bringing both benefits and drawbacks, including in relation to the realisation and enjoyment of human rights. On the benefits of the 4IR and its associated technologies, Ross (2016: 6) writes: The near future will see robot suits that allow paraplegics to walk, designer drugs that melt away certain forms of cancer, and computer code being used as both an international currency and a weapon to destroy physical infrastructure halfway around the world.

However, the use of 4IR technologies presents a direct threat to human rights through, for example, the use of new technologies in warfare (such as armed drones and killer robots) or cybercrimes enabled by big data and the IoT. Abuse of genomics (known as

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gene manipulation) can also pose significant challenges to our understanding of humanity and what it means to be human. It is thus important that 4IR advances should be properly regulated to minimise their negative impact on human rights and to ensure that their benefits are reaped by all. This requires that those concerned with the protection of human rights respond to these challenges in an effective and efficient manner. It also requires that relevant institutions (public and private), including national human rights institutions (NHRIs) like the South African Human Rights Commission (SAHRC), strengthen their own policies, operational structures, processes and governance to meet and respond to the human rights challenges presented and posed by the widespread use of these technologies within society. In the context of human rights and the role of NHRIs, the challenge of the 4IR is how to ensure that the development, deployment and use of technological advances do not infringe upon human rights and fundamental freedoms, and that democratic governance is not threatened. To this end, in March 2020, the SAHRC held a national workshop to discuss the human rights implications of the 4IR in South Africa and the role of NHRIs in this regard. Three broad concerns relating to human rights in the 4IR in South Africa were raised at the workshop and are echoed and developed in this book. First, the hype of 4IR should not distract from the unfinished business of addressing poverty, inequality and unemployment, and creating the preconditions for an inclusive digital economy and society. Second, the 4IR is generating a new imbrication between the government and the private sector, as technological systems may be developed by a private company but rolled out by the government, particularly where international technology providers and platforms are involved. Without the necessary safeguards, transparency and accountability can be obfuscated, meaning that it can be difficult to ascertain who is responsible where a human rights violation relating to the use of 4IR-related technologies occurs. Third, the response to the 4IR will require multisectoral and multistakeholder engagements

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that promote new collaborations, engagements and partnerships. In particular, meaningful public participation must be promoted and enforced at all stages of policy development and evaluation. The workshop highlighted, too, that further interdisciplinary and engaged research is needed to deepen our understanding of the social impact of the technologies associated with the 4IR. While this publication constitutes a key step in setting out the key human rights implications of the 4IR, and in mapping the way forward with respect to the role of the SAHRC in particular, it only scratches the surface of understanding around the penetration of 4IR-related technologies in South Africa and their social impact. For this reason, much of this book is focused on the regulatory framework in relation to human rights and technology. In addition, it conceives of the technologies associated with the 4IR in a broad sense and includes information on internet rights (Chapter 5) and the enjoyment of rights in the digital era – concepts that, traditionally speaking, fall under the umbrella of the Third Industrial Revolution (3IR). It does this in recognition of both the enabling role played by 3IR technologies in 4IR technologies and that the policies regulating the 3IR are still highly relevant – sometimes in new ways – in the context of 4IR technologies. This book sets out three major recommendations for promoting and protecting human rights in the context of the 4IR. The first is that the national response to the 4IR must adopt a human rightsbased approach, to be supported by a fully capacitated SAHRC. The second key recommendation is to promote an understanding and awareness of the 4IR and its implications in communities across South Africa. Ensuring that individuals and communities have a broad understanding of the 4IR, their rights in relation to personal and online information, and the mechanisms available for redress and remedy where violations occur, falls under the promotional and advocacy responsibilities of human rights protectors such as the SAHRC and human rights custodians, foremost of which is the state. Indeed, recent research from the Human Sciences Research Council (HSRC) (Roberts et al. 2019) has demonstrated that there is a critical lack in

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public understanding of the 4IR that must be urgently addressed in order to drive a human rights-based approach to the 4IR where individuals are empowered rather than exploited by its associated technologies. The last major recommendation is in relation to the role of South Africa’s constitutional and statutory bodies, including the SAHRC. The SAHRC, together with the Information Regulator (South Africa) (Irsa), the Competition Commission, the Commission for Gender Equality (CGE) and the Electoral Commission of South Africa (IEC) can all play a key role in both promoting and protecting human rights and constitutional democracy within the 4IR. Critically, such institutions must be capacitated to carry out their mandate, including drawing on advanced technologies to support their work and processes. These institutions, in supporting the implementation of the other two major recommendations of this book, can play a critical role in ensuring – as Schwab (2016: 240) so keenly articulates – that we, collectively as South African society, ‘shape a future where the most powerful technologies contribute to more inclusive, fair and prosperous communities’. Advocate Tseliso Thipanyane CEO of the SAHRC

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Introduction Human rights and the 4IR The 4IR, as defined by the World Economic Forum (WEF), is considered the fourth major industrial era during which new technologies are fusing the physical, digital and biological worlds, and impacting all disciplines, economies and industries. This book is a seminal contribution to understanding how the 4IR is affecting and may affect the enjoyment of human rights in South Africa. Building on research undertaken for the SAHRC, this book brings together a number of authors from the fields of law, human rights, public policy, technology and ethics to consider both the positive and negative implications for the realisation of human rights brought about by the new social and technologically governed condition known as the 4IR. This book is structured thematically around a number of pertinent human rights concerns, from privacy (Chapter 2) and policing (Chapter 3) to socioeconomic rights (Chapter 6), and is set within the context of the existing and emerging legal and regulatory framework in South Africa. The major theme that is emphasised and explored throughout this book is that the 4IR is a double-edged sword offering both enormous benefits and serious risks to the enjoyment of human rights and the prosperity of constitutional democracy in South Africa. In this regard, the role of human rights institutions such as the SAHRC is critical, both in protecting against the adverse human rights effects of 4IR-related technologies and in promoting the use of 4IR technologies in ways that support and enforce the realisation of human rights. The 4IR follows from the 3IR of digital communication technologies, including the internet, and the proliferation of electronics and computing – all of which laid the foundations for the technological developments now associated with the 4IR. Key technology platforms of the 4IR include AI, robotics, the IoT, autonomous vehicles,

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3D printing, quantum computing and nanotechnology. AI constitutes the major aspect of the 4IR, and is oftentimes present in the technological make-up of the other technologies associated with the 4IR. The European Commission (2019) has defined AI as ‘systems that display intelligent behaviour by analysing their environment and taking actions – with some degree of autonomy – to achieve specific goals’. However, in this book, the definition is expanded to include neural-network-based learning systems which process big data according to algorithmic models that autonomously produce results and make decisions based on the data. AI is part of a broader field of algorithmic or automated decisionmaking (ADM) where computing devices collect and analyse data to support or make decisions on behalf of human beings. Such processing is thought to minimise human error and operate more efficiently (usually on a much larger and quicker scale) than human beings. Broadly, the 4IR is seen to be building on the digital revolution (the 3IR), offering new – and often disruptive – ways in which technology Figure 1 The four industrial revolutions

Source: b.telligent

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becomes embedded within social, governmental and corporate structures, as well as within the human body. The transition from the First Industrial Revolution to the 4IR, with their main components, is set out in the figure below. The 4IR is set to have a major impact on every sector of the South African economy and society. It is a global phenomenon with effects on the structure of global power and the sovereignty of nation states. Gurumurthy and Chami (2019) describe how ‘in the emerging global AI economy, competitive advantage is determined by the ability to reach higher levels of efficiency through the intelligence capital generated by processing data’. Indeed, the 4IR and AI constitute a major global intensification of systems of competition based on harnessing the power of computing and data in order to drive efficiency and scale. As such, one can imagine how the 4IR and AI systems may impact human rights on a structural level, amplifying power imbalances between those with access to or who hold the means of production of advanced technologies and those whose lives and bodies are exploited as data points feeding the machine (Zuboff 2018). Globally, the ethics of the 4IR and its key component (AI) are in question. Much as AI is thought to bring about major social change for the good (set out in further detail in Chapter 1), it also raises new concerns about issues of equality, discrimination, democracy and freedom. Indeed, Access Now (2018: 14) – a leading international civil society organisation promoting and protecting digital rights – has sought to distinguish between ‘helpful’ and ‘harmful 4IR and AI’-related technologies. Examples of ‘helpful’ technologies include ‘improving access to healthcare and predicting disease outbreak’, ‘making life easier for the visually impaired’, ‘optimizing agriculture’, ‘mitigating climate change, predicting natural disasters and conserving wildlife’ and ‘making government services more efficient and accessible’. Examples of ‘harmful’ technologies include ‘perpetuating bias in criminal justice’, ‘facilitating mass surveillance’, ‘enabling discriminatory profiling’, ‘assisting in the spread of

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disinformation’, ‘perpetuating bias in the job market’ and ‘driving financial discrimination against the marginalized’ (2018:  14–15). However, these technologies do not exclusively serve ‘helpful’ or ‘harmful’ means, and often have both positive and negative consequences for society. Advances in healthcare, for example, may be beneficial to some but only accessible to the elite, driving deeper inequalities in access to healthcare, particularly for a country with the social dynamics of South Africa. More broadly, the human rights implications of advanced technologies are yet to be adequately explored, in part because the totality of the 4IR is yet to hit South Africa. To date, there has been much evidence internationally of the discriminatory effects of datadriven technologies and in particular systemic encroachments on individual and group enjoyment of the right to privacy. Evidence is beginning to surface which suggests that the 4IR may work to reproduce old inequalities in new, and often exacerbated, ways. The table below sets out what this book shows to be the key human rights concerns associated with the 4IR. Overall, a key challenge of the 4IR will be how to ensure that its technological advances will be used and regulated in ways that promote and protect human rights, that respect fundamental freedoms, and that preserves the future of humanity and democratic governance. Table 1  Key human rights implications of the 4IR and AI Human right Right to equality and nondiscrimination

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Description of implication(s) • AI systems (including automated risk assessment tools) can be biased, trained on unrepresentative data sets or produce biased results, which entrench discriminatory practices, particularly in relation to gender and race. • 4IR technologies that are more readily accessed by privileged segments of society can further inequality. • The use of facial recognition technologies, and other forms of biometric identification systems, can impinge on an individual’s right to be equal before the law.

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Right to bodily integrity, right to justice and rights of detained persons

• The use of advanced AI-driven biometric systems such as facial, gait, speech and emotion recognition technologies may play an overdeterministic role in the prevention and adjudication of crime, leading to unfair discrimination and even wrongful conviction.

Privacy

• Many of the advanced technologies associated with the 4IR, including AI, depend on the realtime availability of huge amounts of data. This is often personal data or big data sets developed from personal data descriptors. This poses serious concerns about privacy, particularly when the data are subject to onsell tactics where such data are sold to other actors who then profile individuals and offer targeted services or products.

Privacy (continued)

• Sophisticated surveillance systems made possible by 4IR technologies pose serious privacy concerns, particularly where individuals are monitored and tracked – both online and offline – without their knowledge.

Freedom of expression and association and political rights

• The growing ubiquity of social media poses risks to democracy and political rights, through filter bubbles, the potential for the spread of disinformation, the power of social media platforms to restrict freedom of expression through content moderation and providing a quasi-unregulated platform for hate speech.

Citizenship and freedom of movement

• The use of advanced data processing systems, databases and biometric technologies can affect the fair entry of migrants into South Africa and the potential for citizenship.

Freedom of trade and labour rights

• The 4IR is anticipated to generate new labour opportunities, but jobs may be lost to automation and trade may be affected by the monopolisation of markets by large and multinational technology companies. • A labour market driven by the 4IR will require potential employees to learn new digital skills, which may not be accessible to marginalised populations.

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Social security and healthcare

• The provision of social security is becoming rapidly more digitised in line with the 4IR and demanding biometric and other personal information from grant holders, increasing opportunity for data exploitation, furthering vulnerability and violating information privacy where information is not securely stored. • Advanced AI and 4IR-related technologies for healthcare (including biotechnology and precision medicine) may not be widely available and acceptable, leading to inequality in access to healthcare.

Children

• Limited access to 4IR and online technologies may unfairly disadvantage children. • Children may also be exposed to online bullying and harassment, or even more illicit activities such as child pornography and other criminal activity child risks.

Education

• The 4IR presents new opportunities for increasing access to online learning and retraining. However, this will only benefit those with access to such resources.

Language rights

• At present, most voice-assisted AI technologies, including South Africa’s GovChat (see Chapter 6), are only available in English. Given the growing prominence of such technologies, it is critical that they expand to include services in other African languages and do not unfairly discriminate against non-English speakers.

Access to information

• Transparency (including, more specifically, algorithmic transparency) is considered a key principle for safeguarding individuals and societies against the negative effects of AI and 4IR-related technologies. Ensuring readily available, relevant and easily accessible information about which technologies are being developed, how they work and how they are being used, as well as how they may affect individuals and individual rights, will be a critical first step in promoting accountable AI and the 4IR for good.

Source: Authors

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In South Africa, to date, the policy discourse on the 4IR is largely that it can and must serve ‘inclusive economic growth’ and that South Africa should seek to position itself as ‘one of the leading countries in the evolution and development of the Fourth Industrial Revolution’ (DTPS 2018). This followed the release of China’s New Generation of Artificial Intelligence Development Plan in 2017 that called for the country to ‘lead the artificial intelligence development trend of the world’, as well as similar policy commitments by the UK, Denmark, Germany, Finland, Italy, Japan and the US – which all speak of their objective to be a global leader in this space. On the one hand, maintaining this national objective is vital to resisting what Hogarth (2018) calls ‘AI nationalism’ – which, he warns, could result in a new kind of colonialism where countries not at the forefront of the 4IR and AI development will be left dependent on those that are. On the other hand, the drive to be globally competitive may result in failing to prioritise the national objectives of the country in favour of global relevance or, worse, sacrificing individual rights to corporate power and profitability. Amid these pressing questions, there has been significant discussion (including at the SAHRC 4IR workshop) of the idea that the 4IR and AI are operating in a largely unregulated space. Should this hold true in any way, the growing ubiquity of the 4IR and AI in South Africa could undermine the rule of law and, ultimately, the sovereignty of the South African state to protect the rights of its people. To counter this, the SAHRC and related human rights institutions have a key role to play in showing the applicability of current laws and regulations in this space and where there are gaps to develop laws and policies based on the principles and values of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution) and society. This book is a first step in this regard. Indeed, the Constitution not only sets out a comprehensive Bill of Rights and the foundational values of accountability, responsiveness and openness, human dignity, equality and freedom, but also makes provision for holding private actors to account for the delivery of

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constitutional obligations where the state is unable to do so. Thus, as society faces questions about how the law cannot keep up with the rapid development of technology, existing applicable laws must be adhered to; and where laws do not currently exist, the adoption of technology must slow down and wait for the deliberative and consultative lawmaking process to take place, including practices such as conducting social and human rights impact assessments on new and proposed technologies. In addition, the role of state institutions and supervisory authorities to promote and protect rights in the era of the 4IR must be recognised and supported, including (in addition to the SAHRC) the Constitutional Court, the IEC, the CGE and Irsa. Moreover, courts and judges must be equipped to handle complex matters relating to the 4IR and digital technologies in order to set precedent and extend the interpretation of existing laws. Lastly, there is a critical need to strengthen the understanding of our communities, not only about the potential benefits of 4IR technologies but also about the potential problems, their rights, and the paths to redress and remedy that are available. This is imperative for ensuring a public-led response to the 4IR. The central recommendations for promoting and protecting human rights in the context of the 4IR in South Africa are set out in the figure below.

Regulation of the 4IR in South Africa As noted above, the 4IR is said to have a major impact on all aspects of industry, society and government. As such, it poses new challenges for regulation and governance that can be summarised along four broad axes. First, certain technological developments of the 4IR raise legal and ethical questions in and of themselves that need to be regulated. This includes developments in autonomous weapons and cars (Press 2018). Second, as the technologies associated with the 4IR are considered to provide sustainable and widely accessible platforms for growth and development, countries around the world

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Figure 2  Key recommendations for promoting and protecting human rights in the 4IR

Build capacity in communities around understanding of and access to new technologies and associated individual and community rights.

Promote a human rights-based approach to 4IR and AI policymaking in South Africa that promotes inclusivity, non-discrimination, accountability and openness.

Strengthen the capacity of the SAHRC and other state bodies to investigate and respond to human rights- and technologyrelated issues and complaints, including through building long-term strategic and organised partnerships and collaborations.

Source: Authors

have sought to develop policies aimed at maximising the benefits of the 4IR while mitigating any negative effects (WEF 2017b). Third, the 4IR and related AI systems (including global social media platforms) are recognised as producing, in some instances, serious legal and ethical effects on individuals and societies requiring direct legal regulation – rather than broad-stroke policy-making as per the previous point. Fourth, given the extent to which technological advancements are reshaping governance in general, it has an effect on the way in which law and policy-making is undertaken, and

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related activities in serving justice. This latter issue, as it pertains to South Africa, is explored in detail in Chapter 3 of this book. One of the key challenges relating to the onset of the 4IR, and AI as its key proponent, is that existing regulatory frameworks do not sufficiently address the breadth and depth of issues raised by the growing presence of new technologies in daily life. This has been raised globally as a major cause for concern, broadly summarised in the debate about the inability of the law to keep up with the pace at which technology is changing (Fenwick, Kaal & Vermeulen 2017). This has resulted in a call for agile regulation and the development of ethics standards and principles as the key way in which the negative implications of the 4IR and AI can be managed. Indeed, the WEF (2017b) – the international organisation based in Switzerland for the promotion of public–private cooperation – has issued guidance on what it calls agile governance in the era of the 4IR, which it defines as ‘adaptive, human-centred, inclusive and sustainable policymaking, which acknowledges that policy development is no longer limited to governments but rather is an increasingly multi-stakeholder effort’. In fact, for the WEF, the 4IR requires ‘the transformation of traditional governance structures and policy-making models’. Klaus Schwab, the executive chairperson of the WEF who is considered the pioneer of the 4IR through the publication of his book of the same name in 2016 notes that ‘as the physical, digital, and biological worlds continue to converge, new technologies and platforms will increasingly enable citizens to engage with governments, voice their opinions, coordinate their efforts, and even circumvent the supervision of public authorities’ (2016). Simultaneously, ‘governments will gain new technological powers to increase their control over populations, based on pervasive surveillance systems and the ability to control digital infrastructure’ (2016). On the whole, however, governments will increasingly face pressure to change their current approach to public engagement and policy-making, as their central role of implementing policy diminishes ‘owing to new sources of competition and the redistribution and

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decentralisation of power that new technologies make possible’ (2016). Schwab predicts that, ultimately, the ability of government systems and public authorities to adapt will determine their survival, which he advises will be particularly true in terms of the government’s role in developing regulation. Schwab further submits: Existing systems of public policy and decision-making evolved alongside the Second Industrial Revolution, when decisionmakers had time to study a specific issue and develop the necessary response or appropriate regulatory framework. The whole process was designed to be linear and mechanistic, following a strict ‘top-down’ approach. (2016)

However, as Schwab notes, this approach is not feasible in the face of the increasing ubiquity of the 4IR, which is resulting in immense pressure on legislators and regulators. This gives rise to the question of how these public representatives and officials can protect the legitimate interests and human rights of both consumers and the general public while supporting innovation and technological development. Schwab (2016) proposes that they need to embrace ‘agile’ governance, ‘just as the private sector has increasingly adopted agile responses to software development and business operations more generally. This means regulators must continuously adapt to a new, fast-changing environment, reinventing themselves so they can truly understand what it is they are regulating’. Thus, the conclusion is to foster collaboration between the public and private sectors in the development of regulation. Yet, if this is to be adopted in South Africa, as elsewhere, it would necessarily have major implications for human rights where, historically, states have been vested with the overall authority for the protection, promotion and realisation of such rights. Instead, it is suggested here that South Africa should carefully examine existing regulatory structures to ascertain how they can best be interpreted to respond to and address the new human rights and ethical challenges

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posed by the 4IR. Thereafter, regulatory gaps should be addressed through consultative processes. Equally, there have been considerable efforts to mitigate the negative implications of the 4IR and AI through the development of an ethics framework. Indeed, Jobin, Ienca and Vayena (2019) note that, in the past five years, over 84 standards for the ethical development and use of AI have been promulgated. The majority of these standards have been developed by multinational corporations domiciled in the US and Europe, while others have been developed by international agencies. Notably, none of the listed standards arose from the African region or Global South. The ethical principles enshrined in these documents all relate to 11 broad principles: transparency, justice and fairness, non-maleficence, responsibility, privacy, beneficence, freedom and autonomy, trust, sustainability, dignity and solidarity (Jobin et al. 2019). Broadly, as it is currently conceived within international discourse on the issue, the ethical approaches to the development and use of 4IR-related technologies fall into three categories (FAT/ML n.d.): 1) Fairness: Ensure that there are no biases in the AI system or technology that produces unfair discriminatory effects. 2) Accountability: Ensure that those who develop and implement AI systems and advanced 4IR-related technologies are accountable to their stakeholders and the people they affect. 3) Transparency: Ensure that the development, implementation, monitoring and review of AI systems and advanced technology are open and transparent to stakeholders and the public. While these principles are important for safeguarding the development and use of AI and 4IR technologies in society, there is a need to develop local, context-specific standards which address the particular issues that may arise within South African society and that take into account the complex landscape of inequality, poverty and discrimination in order not to deepen such realities. Such a framework should be based on existing laws and principles and the constitutional law of South Africa, be developed through wide public consultation

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and collaboration, and constitute a human rights-based approach to technology and the 4IR (discussed further in Chapter 7 of this book). The Constitution is considered to have one of the most comprehensive Bill of Rights globally. This includes a full list of socioeconomic rights that the Constitutional Court has declared to be justiciable. In addition, and of particular relevance in the context of the 4IR where private actors play an increasingly prominent role in the delivery of basic services, the Constitution is one of the only constitutions in the world that bestows responsibilities upon the private sector with regard to human rights. Section 32 of the Constitution provides for the right to access to information (explored further in Chapter 6 of this book). This provision explicitly extends the right to access to information to the private sector, calling on both public and private bodies to recognise their responsibilities as duty bearers to provide access to information. Although the right to access to information in Section 32 is the only right in the Bill of Rights that explicitly lays an obligation upon the private sector, Section 8(2) provides for the horizontal application of the rights enshrined in the Constitution to ‘bind natural or juristic persons’ – meaning that, where relevant, private bodies (or juristic persons) bear responsibilities to respect the rights contained therein. Furthermore, Section 8(4) of the Constitution provides for juristic persons to be rights holders in relation to applicable and relevant rights, thereby providing a constitutionally grounded model for corporate citizenship in so far as the company is bestowed the same privileges, and therefore responsibilities, as citizens. In line with the Constitution, and particularly the Bill of Rights, the human rights-based approach to the regulation of the 4IR in South Africa set out here can be summarised as follows: • Emphasise non-discrimination. • Emphasise realising substantive equality and recognising the differential experience of enjoyment of, or access to, rights in the digital era.

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• Promote awareness of, and education about, rights in the digital and 4IR context. • Draw on national, regional and international standards and jurisprudence on human rights, particularly in balancing competing rights. • Require powerful non-state actors to take positive steps to realise and protect human rights in line with Section 8 of the Constitution. • Put in place meaningful mechanisms for redress and remedy where violations occur. • Emphasise meaningful public consultation and public participation. • Focus on creating inclusive futures, and designing and appropriating inclusive technologies. • Understand the interdependence of rights such that, for example, the right to privacy is understood alongside dignity, freedom of movement and freedom of expression, and that there is not a trade-off of rights.

Approach and purpose of this book In light of the context set out above, this book constitutes an initial discussion about the human rights implications of the 4IR in South Africa, in terms of both the opportunities and the threats. Its key contribution is in offering a broad-based overview of the key human rights issues relating to the 4IR as it unfolds in South Africa, and therefore in providing a basis from which more detailed research into the discrete areas of concern and opportunity can be undertaken. As the full effects of the 4IR are yet to be realised in South Africa, where relevant, this book includes references to the experiences of other jurisdictions in mapping out the ways in which human rights and new technologies intersect. In addition, a number of case studies are included that provide a compact overview of the ways in which human rights have, in South Africa, been implicated by technologies

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associated with the 4IR. As far as possible, this book follows an intersectional approach in analysing the human rights implications of new technologies associated with the 4IR, incorporating an ongoing assessment of the differential impact of new technologies on marginalised groups and on the basis of multiple forms of discrimination. Thus, the key aims of this book are to • provide a comprehensive overview of the current and emerging regulatory framework governing the use and development of new technologies in South Africa in relation to the enjoyment, realisation or violation of human rights, including the relevant international and regional instruments. • identify the key areas of concern regarding human rights and the 4IR. • discuss the potential opportunities presented by such technologies to promote the realisation of human rights through, for example, broadening access to online services. • identify key areas for policy and legislative reform. • develop an initial outline for a human rights-based approach to the regulation of the 4IR in South Africa. • delineate areas where further in-depth research is required. • develop a series of recommendations for promoting the realisation of human rights in the era of the 4IR. • foster a broader understanding of the human rights implications of the 4IR in South Africa for a wide readership. The topic of human rights and the 4IR is a new field in the human rights discourse, with little published internationally that addresses these overlapping fields of inquiry in a broad and sustained manner and no literature published in South Africa. This book is therefore intended to open this field of inquiry in a major way and to contribute to ongoing discussions. It does so by synthesising existing literature, research and approaches in this burgeoning field with the understanding we have of the current South African experience. Case studies are provided in a number of chapters to illustrate in a real-world setting how

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human rights have been affected by the deployment of 4IR-related technologies in South Africa to date. This book is intended in particular to help advance an understanding of the relationship between human rights and the technologies associated with the 4IR, and to promote the development and use of such technologies in ways that are compatible with human rights and the transformative agenda of the Constitution. In addition, this book is intended to support the ongoing processes around developing South Africa’s national response to the 4IR and associated advanced technologies, including AI in particular. It lays out in the last chapter (Chapter 7) an initial blueprint for a human rights-based approach to the regulation of the 4IR and AI that, with the necessary interventions and lobbying, can be taken forward by law- and policy-makers in order to develop regulations for the use of 4IR-related technologies for South Africa in line with the Constitution. More broadly, this book is intended for a wide readership interested in understanding more about the ways in which human rights in South Africa are impacted by the 4IR and related technologies. It is also intended for use by parliamentarians, academics, students, civil society and the international community, among others.

Structure of this book This book is structured around six major human rights themes implicated by the 4IR in South Africa. Chapter 1 examines the promises, and potential discontents, of the 4IR for South Africa. The 4IR, together with the new capabilities being created by AI, are positioned as tools that will provide major advancements to human and social development. However, these benefits may not be realised by the vast majority of the populace. If left unchecked, the 4IR has the potential to drive an insurmountable wedge into the unequal distribution of resources, jobs, income and financial security throughout society. This chapter explores these contentions in relation to South Africa’s broad

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social and economic transformational objectives around poverty, inequality and development. Chapter 2 engages with the most cited human rights implication of the 4IR and associated technologies: privacy. This chapter examines data governance in South Africa overall with a specific focus on the right to privacy and, relatedly, cybersecurity. The Protection of Personal Information Act (No. 4 of 2013) (Popia) will, once in full effect, play a pivotal role in the regulation of our digital privacy. In addition, there is mounting global pressure on governments and corporations to increase privacy measures, including promoting compliance with international regulations such as the General Data Protection Regulation, 2018 (GDPR) and nationally the cybersecurity measures of good governance set out in the King IV™ report. In addition, with growing concerns over state surveillance capabilities and the extension of these capabilities in draft cybersecurity laws, it is critical to consider how best to protect and promote privacy in South African contemporary society with an understanding of how privacy is interrelated with other human rights. This chapter sets out the parameters of the debate on privacy and the 4IR for South Africa and, where relevant, draws on international experience to anticipate the challenges the country might face in this regard. Chapter 3, following on from some of the concerns noted in Chapter 2 regarding how surveillance infringes on the right to privacy, examines state use of 4IR technologies in surveillance, digital justice and predictive policing. Predictive policing is aimed at supplementing traditional policing methods with statistical models informed by historical data to predict where and when criminal activities will occur. While this is of immense value to resource-constrained police forces, enabling them to make these predictions efficiently, it also means that states can extract more information – often in real time – about its populace. This increased reliance on AI and data to inform decision-making may translate into false depictions of criminal behaviour, racial profiling, discriminatory police interventions and governmental resource allocations that rely on data at the expense of

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context. This raises questions about public trust in governmental use of AI, as well as accountability where ADM- or AI-supported decisionmaking leads to unfair outcomes and questions about transparency. This chapter explores these broad concerns by examining current predictive policing and surveillance methods used in South Africa, and looks into how the problematic aspects associated with digital justice abroad can be brought to bear in anticipating the negative human rights concerns with respect to the use of such technologies. Globally, bias and discrimination arguably constitute a major social concern of AI in particular. On the one hand, the technologies of the 4IR offer the possibility of affording marginalised groups meaningful protection and assistance through the expansion of access to services provided by digitisation and online tools. On the other hand, these technologies can create new methods of exploitation and reinforce old discriminations in new ways. Chapter 4 explores the issues around bias and unfair discrimination in AI systems and examines the ways in which the 4IR has the potential to leave people behind and create further inequalities in society. In addition, this chapter explores the potential benefits of 4IR technologies for the rights of persons with disabilities, including promoting participation and inclusion within society. It is said that the rights of the offline world apply to the online world. However, with the growing ubiquity of the internet and the provision of online services – a key cornerstone of the 4IR – the role of human rights in the online world has become more complex. On the one hand, access to the internet has generated opportunities for learning, interaction and access. On the other hand, there are concerns largely (but not exclusively) associated with the right to freedom of expression. With increasing online interactions and dependence on social media, the limits of the right to freedom of expression have been questioned, particularly in terms of hate speech, online bullying and the spread of disinformation. Chapter 5 explores these issues in relation to the experiences of South Africa and sets out how the principles provided under the Declaration of Principles of Freedom of Expression in Africa can, in particular and if signed by South Africa,

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serve as a useful blueprint for protecting freedom of expression online and other digital rights. AI is rapidly changing the operations of many sectors in society, including the provision of government services through, for example, ADM and big data. The last thematic chapter of this book (Chapter 6) explores how AI and 4IR-related technologies are being used (or have the potential to be used) in the provision of socioeconomic rights, including healthcare, education, social security and local government service delivery, and the implications thereof. A major focus of this chapter is how the right to access to information, as provided under Section 32 of the Constitution, must function as a critical enabler for the realisation (in this context) of socioeconomic rights. This is particularly important where, in the provision of these rights, governments are often – and increasingly – relying on external service providers and private actors in various ways, including in the use of advanced data processing systems to increase service delivery efficiency. Fostering transparency and accountability in public–private partnerships through the right to access to information thus becomes a critical step in protecting human rights in these contexts. The final chapter of this book (Chapter 7) examines the role of human rights institutions in promoting and protecting human rights in the 4IR in South Africa. While this chapter offers a series of recommendations for human rights institutions, including the SAHRC, Irsa and the IEC, its particular contribution is in setting out what a human rights-based approach to the regulation of the 4IR in South Africa might look like. The recommendations for the way forward detailed in this chapter include how human rights institutions can provide access to redress and remedy for the violation of human rights in the context of the 4IR, and cooperate with other state institutions.

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The 4IR in South Africa: Development, unemployment and inequality

Consensus is emerging that the technological changes of the 4IR should be harnessed with the aim of addressing South Africa’s developmental aspirations, as set out in policy documents such as the National Development Plan, Vision 2030 (NPC 2012). From a human rights perspective, the key questions in this regard relate to the fulfilment of socioeconomic rights; furthering social justice; bridging the digital divide; and the ethical and legal debates raised by changing technologies, for example questions about data privacy, AI bias and the digital divide (all discussed in detail in later chapters). To contextualise these issues, this chapter examines the potential benefits and risks of the 4IR for South Africa from a broad perspective. New technologies can lead to major advancements for human and social development. However, these benefits may not be realised by the vast majority of the populace. If left unchecked, the 4IR has the potential to accelerate the unequal distribution of resources, jobs, and income and financial security. This chapter explores these tensions in relation to South Africa’s broad social and economic transformation objectives related to poverty, inequality and development, and sets out the broad emerging national policy frameworks on the 4IR.

International framework Despite the growing presence of AI and other 4IR-related technologies across the world, an international agreement that provides a universal normative guide to the regulation of such technologies is yet to be established (Deeks 2020). More critically, given the geopolitical

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implications of the use and development of such technologies, reaching consensus among the international community is more or less an impossibility. Issues that can arise include the development of a particular technology in one country that is then deployed in another country and how any unfair or harmful effects of such a technology is to be addressed. Deeks (2020:  138) writes that ‘the most intensive AI-related international negotiations have focused on whether to ban lethal autonomous weapons systems, but the discussions have thus far proven complicated, contentious, and inconclusive’. Recognising that the transformative power of digital technologies to advance the human condition is paralleled by abuses and unintended consequences, UN Secretary General António Guterres appointed the High-Level Panel on Digital Cooperation to address the social, ethical, legal and economic impacts of digital technologies (UN 2019). In June 2019, the panel issued a report identifying ways in which the international community could work together to optimise the use of digital technologies while mitigating the risks with a focus on digital inclusivity, trust, cooperation and the protection of human rights (UN 2019: 3). Furthermore, as discussed in Chapter 2, the UN special rapporteur on the right to privacy and the UN Human Rights Council (UNHRC) have issued important documents and standards relating to privacy in the digital age. Other developments relating to the implications of new technologies on specific human rights areas and concerns are in the making at the UN level. This includes the work on human rights and technology being undertaken by the UN high commissioner for human rights, announced in 2019. In addition, the UN Committee on the Rights of the Child is looking at developing a general comment on the rights of children online and in the digital age. Furthermore, the UN Guiding Principles on Business and Human Rights have some relevance to the 4IR context given the role of the private sector in developing technologies used by both public and private bodies. Adopted in 2011 by the UNHRC, these

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guiding principles set out a framework for companies to protect and respect human rights, and provide remedies where human rights violations occur. Notably, they have soft law status within international law and have been criticised for not going far enough in holding private companies to account for the realisation of human rights (see Deva & Bilchitz 2013). On a global policy level, the 4IR is thought to be intrinsically connected to the Sustainable Development Goals (SDGs) (Morrar, Arman & Mousa 2017; Popović 2020). This connection is underpinned by the reach of 4IR technologies. Aspects of digitisation and automation, and the associated new ways of producing and consuming goods and services, touch almost every single development goal, whether it is related to poverty, inequality, health, education, gender, energy, climate or industry. Every technological platform of the 4IR (including AI, robotics, biotechnology, 3D printing and the platform economy) has a complex array of potential benefits and risks with regards to meeting the SDGs. The table on the following page sets out the key SDGs whose realisation may be strengthened through digitisation and the 4IR. Whether the technologies of the 4IR will be harnessed towards the achievement of the SDGs or instead serve narrower interests depends to a large degree on the political economy of technology, which in turn is the outcome of a wide range of social and political processes (Popović 2020). A Marxist analysis might have a pessimistic conclusion: that the power created by new technologies is more likely to serve the already powerful classes, rather than the interests of the planet, the poor or the marginalised. However, the WEF is optimistic, claiming that the core technologies of the 4IR have the potential to ‘fast-track’ 70 per cent of the SDGs (Cann 2020). In terms of AI more specifically, a number of international standards have been developed to promote the ethical development, deployment and use of such technologies. An increasingly widely used set of ethical guidelines for AI are the Organisation for Economic Co-operation and Development’s (OECD) Principles on AI.

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Table 1.1  SDGs that relate to the 4IR SDG target

Indicator

Role of digitisation

4.a Build and upgrade education facilities that are child, disability and gender sensitive and provide safe, non-violent, inclusive and effective learning environments for all.

Close the 4.a.1 Proportion of schools digital divide with access to: (i) electricity; (ii) in education. the internet for pedagogical purposes; (iii) computers for pedagogical purposes; (iv) adapted infrastructure and materials for students with disabilities; (v) basic drinking water; (vi) single-sex basic sanitation facilities; and (vii) basic handwashing facilities (as per the WASH indicator definitions).

8.10 Strengthen the capacity of domestic financial institutions to encourage and expand access to banking, insurance and financial services for all.

8.10.2 Proportion of adults (15 years and older) with an account at a bank or other financial institution or with a mobile money service provider.

9.5 Enhance scientific research, upgrade the technological capabilities of industrial sectors in all countries, in particular developing countries, including (by 2030) encouraging innovation and substantially increasing the number of research and development workers per one million people and public and private research and development spending.

9.5.1 Research and development expenditure as a proportion of GDP.

9.5.2 Researchers (in fulltime equivalent) per million inhabitants.

Build innovation capabilities.

9.b Support domestic technology development, research and innovation in developing countries, including by ensuring a conducive policy environment for inter alia industrial diversification and value addition to commodities.

9.b.1 Proportion of medium and high-tech industry value added in total value added.

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Close the digital divide in financial services.

Build innovation capabilities.

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9.c.1 Proportion of population 9.c Significantly increase access covered by a mobile network, by to ICT and strive to provide technology. universal and affordable access to the internet in least developed countries by 2020.

5

Close the digital divide for mobile phone access.

10. Reduce inequality within and among countries. 10.1 By 2030, progressively achieve and sustain income growth of the bottom 40 per cent of the population at a rate higher than the national average. 10.2 By 2030, empower and promote the social, economic and political inclusion of all, irrespective of age, sex, disability, race, ethnicity, origin, religion, economic or other status.

10.1.1. Growth rates of household expenditure or income per capita among the bottom 40 per cent of the population and the total population.

10.2.1. Proportion of people living below 50 per cent of median income, by age, sex and persons with disabilities.

Promote access to economic and learning opportunities and political inclusion.

17.6 Enhance North–South, South–South and triangular regional and international cooperation on and access to science, technology and innovation, and enhance knowledge-sharing on mutually agreed terms, including through improved coordination among existing mechanisms, in particular at the UN level, and through a global technology facilitation mechanism.

17.6.2 Fixed internet broadband subscriptions per 100 inhabitants, by speed.

Close the digital divide for access to broadband.

17.8 Fully operationalise the technology bank and science, technology and innovation capacity-building mechanism for least developed countries by 2017 and enhance the use of enabling technology, in particular ICT.

17.8.1 Proportion of individuals using the internet.

Close the digital divide through capacitybuilding.

Source: Authors

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These principles were adopted in 2019 to ‘promote artificial intelligence (AI) that is innovative and trustworthy and that respects human rights and democratic values’ (OECD 2019). The principles are designed to align with the OECD’s standards relating to matters such as privacy, digital security risk management and responsible business conduct. At present, South Africa is not a member of the OECD and has not signed the OECD Principles on AI, which can be adopted by non-member countries. Thus, their value to South Africa is only as a guide. The core principles are: • AI should benefit people and the planet by driving inclusive growth, sustainable development and wellbeing. • AI systems should be designed in a way that respects the rule of law, human rights, democratic values and diversity, and they should include appropriate safeguards (for example, enabling human intervention where necessary) to ensure a fair and just society. • There should be transparency and responsible disclosure around AI systems to ensure that people understand AIbased outcomes and can challenge them. • AI systems should function in a robust, secure and safe way throughout their life cycles, and potential risks should be continually assessed and managed. • Organisations and individuals developing, deploying or operating AI systems should be held accountable for their proper functioning in line with the above principles. Of particular relevance here is the emphasis that AI must benefit people and communities. Within the human rights discourse, this can be seen to align with the state’s responsibility to promote human rights, which includes not only promoting awareness of human rights but also promoting their realisation through all available channels and mechanisms. The technologies of the 4IR could be viewed as one such mechanism.

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The OECD also provides five recommendations to governments to enhance the responsible and ethical use of AI nationally: 1) Facilitate public and private investment in research and development to spur innovation in trustworthy AI. 2) Foster accessible AI ecosystems with digital infrastructure and technologies, and mechanisms for sharing data and knowledge. 3) Ensure a policy environment that will open the way for the deployment of trustworthy AI systems. 4) Empower people with the skills for AI and support workers for a fair transition. 5) Cooperate across borders and sectors to progress on responsible stewardship of trustworthy AI. While these principles provide a valuable guide on international best practice relating to the ethical regulation of AI, the recommendations listed above do not go far enough in enunciating the centrality of developing a response to AI – and the 4IR more broadly – that is grounded in human rights. Further work is needed to read these provisions alongside human rights commitments, particularly (as noted above) with respect to the state’s obligation to promote human rights.

Regional framework The core human rights instrument of the AU is the African Charter on Human and Peoples’ Rights (ACHPR). The ACHPR does not expressly include provisions relating to the enjoyment of human rights in the 4IR. Moreover, it does not include an express right to privacy, which is considered the key human right to be implicated by digitisation. However, the ACHPR enshrines the notion of community or collective rights that has particular relevance for addressing some of the collective human rights concerns of the 4IR. The emphasis placed on community or collective rights within the African human rights canon is unique to the continent, and perhaps has new and pertinent relevance in the context of the 4IR where the rollout of

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related technological advancements affects whole groups of people as well as individuals. This is discussed further in Chapter 2 with respect to the idea of group privacy. In addition, the ACHPR provides for corresponding responsibilities incumbent on rights holders in a co-responsible understanding of the ways in which the realisation of rights does not take place within an autonomous vacuum. To this effect, Article 27 of the ACHPR provides that ‘the rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest’. This provision does not apply solely to individual rights holders, but also to business groups and private bodies, and calls on such actors to exercise their rights with awareness of and respect for the rights of others. This provision may hold particular relevance for a 4IR environment wherein the mandate to ‘leave no one behind’ as society becomes increasingly more digitised becomes ever more urgent. In this respect, this provision of the ACHPR may be beneficial in thinking through a distinctly African human rights-based approach to grounding a policy provision that seeks to protect society as a whole from the negative effects of technological advancements associated with the 4IR. This, too, is pertinent in light of South Africa’s commitments under SDG 10 to reduce inequality.

National policy framework The South African government is in the process of developing a policy framework that directly addresses the 4IR. The Presidential Commission on the Fourth Industrial Revolution (hereafter the Commission) was established in April 2019, and has been mandated to develop an integrated country strategy and plan to respond to 4IR. In early 2020, the draft report of the Commission was presented to Cabinet. However, the coronavirus crisis has delayed the process and the report has not been finalised at the time of writing. Parallel with the processes of the Commission, the notion of the 4IR has become widely used as a heuristic within departmental policy

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frameworks and instruments, including those of the Department of Science and Innovation (DSI); Department of Basic Education (DBE); Department of Higher Education and Training (DHET); Department of Communications and Digital Technologies (DCDT); and Department of Trade, Industry and Competition (dtic) (Gastrow 2020). The DSI’s 2019 White Paper on Science, Technology and Innovation draws on the notion of the 4IR to inform its approaches to re­ industrialisation, service delivery, modernising the agricultural sector and mitigating environmental degradation. The DSI’s approach to the 4IR is clearly expressed in the 2019 White Paper: Understanding the likely impact of the 4IR, both positive and negative, and preparing for these collectively and strategically will be key to South Africa’s future resilience. For instance, digitisation is expected to change the work environment in innovative ways, as online jobs, crowd sourcing and the ability of general workers and specialists to choose when, where and how long they work might replace traditional employment models. The technological progress might also leave many people behind, increasing the premium for present and future workers to acquire special skills or education. Retraining and educating today’s workers will be crucial to prevent skills mismatches, mass unemployment and growing inequality. (DSI 2019: 19)

Furthermore, the DSI has overseen the opening of the WEF Affiliate Centre for 4IR within the Centre for Scientific and Industrial Research – the Centre for the Fourth Industrial Revolution South Africa. The centre is being set up as a hub for the development of policies and protocols to ensure that the 4IR benefits the greater good. It is a collaborative space for multiple stakeholders to develop policy and advance local science and technology benefits (C4IR-SA n.d.). In addition, the DBE is reviewing its curriculum with a view to greater alignment with the skills required for the 4IR. The DHET gazetted the appointment of a task team to advise the higher education sector on how to maximise the opportunities presented by the 4IR,

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with a focus on investigating how the post-school education and training system can benefit from the opportunities presented by the 4IR and how to mitigate the potential challenges (South Africa 2019). At the time of writing, the work of the task team is ongoing. The DCDT plays a central role in the public sector’s response to the 4IR: in its mandate to oversee South Africa’s digital policy, in its role in leading the secretariat of the Commission and in its responsibility to oversee the government’s communication with the public. The department’s National Integrated ICT Policy White Paper (2016) underscores the need to attend to the drivers of an ICT-enabled growth and development trajectory, including the rollout of high-speed and affordable broadband services, the development of an e-literate society through a skills development plan targeting all areas of society, ensuring affordability of the internet and related services, improving the quality and security of the ICT networks, and the participation and pioneering role of small and medium enterprises (SMEs) in the development of new technologies. The department received Cabinet approval for its SME strategy, national e-strategy and e-government strategy – all of which have a 4IR orientation. The dtic plays a critical role in the economic and industrial aspects of the 4IR in South Africa, with a focus on establishing networks between the government and industry, and building technological capabilities in the manufacturing sector (Karg 2019). The dtic’s Industrial Policy Action Plan 2018/9–2020/21 lists the digital industrial revolution as one of its focus areas. The plan notes the exponential speed at which the 4IR is occurring and the possible detrimental effects of the 4IR on lower- to middleincome countries that might not be able to cope with the speed of technological advancement and innovation. Importantly, the dtic recognises that the 4IR might pose more challenges than clear-cut opportunities for South Africa. Access to market opportunities, a broad youth base, a growing middle class, and access to global value chains and technology suppliers are seen as opportunities, while threats include South Africa’s general

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readiness to welcome 4IR technologies. According to the plan, 4IR technologies will place enormous pressure on areas where South Africa is already struggling, including infrastructure (broadband and communications), education and skills, and the blurring of the traditional separation between primary and tertiary industrial sectors. In addition, technology-driven employment losses, growing inequality and winner-takes-all outcomes necessitate rethinking the whole framework of public and private sector collaboration (dtic 2018: 101–102). The Chief Directorate Future Industrial Production and Technologies was established to examine likely impacts and build the government’s capacity to confront these challenges. This has resulted in international research in the area and the commencement of partnerships between the dtic and the manufacturing sector. Two key action plans included the establishment of a national coordination committee to lead government consultations on the 4IR and the Intsimbi Future Production Technology Initiative, which has as focus tooling development support as a turnaround strategy for South Africa’s distressed tooling industry. If this succeeds, it will serve to rehabilitate the South African tool, die and mould-making sector, making it internationally competitive. This is to be achieved through critical skills development and job creation programmes, technology development and adoption, enterprise development and export promotion (dtic 2018: 103). The plan highlights the need for a digital industrial policy in South Africa that focuses on achieving the above outcomes. This is particularly important in an economy that has prematurely de-industrialised, with the manufacturing sector’s contribution to GDP having fallen from 21 per cent in 1994 to 13 per cent in 2016 (Barnes et al. 2018: 9). This is compounded by low investment in manufacturing, poor skills development and a fragmented government that hampers any coordinated implementation of policies across different sectors. Nevertheless, in South Africa the priority appears to be cross-cutting/transversal technologies that at

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a minimum promote the digitisation of the production and supply chains, resulting in more efficient production processes (Barnes et al. 2018: 12–13). To achieve wider adoption of the technologies, a better understanding of digital disruption on efficiency as well as economic activity is needed. It also remains to be seen what new value chain models will emerge as a result of digitisation. Five principles have been proposed for the development of a digital industrial policy. These include recognising that digital industrialisation opportunities can be both incremental and disruptive, and that sustainable and inclusive digital industrialisation requires domestic value creation and distribution, systemic policy frameworks, strategic targeting, coordination and policy alignment to ensure effective implementation and new coalitions forged that better align productive interests for the successful implementation of industrial policy (Barnes et al. 2018: 22). The Department of Small Business Development (DSBD) is overseeing the rollout of technology hubs in rural and township areas (PMG 2019). The DSBD has an incubation programme in these areas consisting of technology business incubators, enterprise supplier development incubators and rapid youth incubators. The then Department of Telecommunications and Postal Services (DTPS, now the Department of Public Service and Administration) developed the National E-Government Strategy and Roadmap that sets out a vision to ‘digitise government services while transforming South Africa into an inclusive digital society where all citizens can benefit from the opportunities offered by digital and mobile technologies to improve their quality of life’ (DTPS 2017: 14).

Double-edged sword of technological change Schwab (2016) suggests three reasons why today’s ‘transformations represent not merely a prolongation of the Third Industrial Revolution [which, as mentioned above, centres on the proliferation

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of the internet and electricity] but rather the arrival of a Fourth and distinct one: velocity, scope, and systems impact’. The pace of current ‘breakthroughs’ is without historical precedent, he submits. Compared with previous industrial revolutions, the 4IR is ‘evolving at an exponential rather than a linear pace’ (2016). Moreover, it is ‘disrupting almost every industry in every country, and the breadth and depth of these changes herald the transformation of entire systems of production, management, and governance’ (2016). Schwab (2016) enthuses that the possibilities presented by ‘billions of people connected by mobile devices, with unprecedented processing power, storage capacity, and access to knowledge, are unlimited’ and that these possibilities can be ‘multiplied by emerging technology breakthroughs in fields such as artificial intelligence, robotics, the Internet of Things, autonomous vehicles, 3D printing, nanotechnology, biotechnology, materials science, energy storage, and quantum computing’. The 4IR and AI are already present around us in the form of self-driving cars, drones, virtual assistants (Adams & Loideain 2019), software programs that can translate languages or make investment decisions, numerous new robotics capabilities, networks and interfaces through the ‘internet of things, services, data and people’ that may transform industry, particularly manufacturing (Pillay, Ori & Merkofer 2017). These developments have been made possible largely because of increasing computing power and ever-expanding volumes of data. Additional examples of 4IR technologies in use today are software used to discover new drugs and algorithms used to predict (and arguably control) our personal and cultural interests online (Zuboff 2018). In addition, digital fabrication technologies such as 3D printing are interacting with the biological world on a daily basis. Engineers, designers, and architects are combining computational design, additive manufacturing, materials engineering, and synthetic biology to pioneer a symbiosis

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between micro-organisms, our bodies, the products we consume, and even the buildings we inhabit. (Schwab 2016)

Much like earlier revolutions, the 4IR brings both opportunities and challenges. It has the potential to raise global income levels and improve quality of life for many groups of people around the world. Of interest to many WEF business stakeholders is that it could lead to ‘long-term gains in efficiency and productivity’ (2016). As transportation and communication costs decline, ‘logistics and global supply chains will become more effective, and the cost of trade will diminish, all of which will open new markets and drive economic growth’ (2016). In addition, with the opening of data and information channels facilitated by increased computer power and speed, as well as the production of data and information, there is significant potential benefit in breaking down the information asymmetries that both prevent market entry for smaller businesses and prevent meaningful engagement in democratic government processes (explored further in Chapter 6). At the same time, Schwab (2016) acknowledges that this revolution seems likely to ‘yield greater inequality, particularly in its potential to disrupt labour markets [as] automation substitutes for labour across the entire economy’. These contentions are explored in this chapter. Like all technologies, the core technological platforms of the 4IR are a double-edged sword – offering enormous potential for generating employment, economic growth and human development, but also having the potential to drive unemployment and inequality and compromising the realisation or enjoyment of human rights. As President Cyril Ramaphosa (2019) stated at South Africa’s 1st Digital Economy Summit: ‘This revolution must be harnessed and placed at the disposal of the programme of transformation on which our country embarked in 1994’. To put this differently, the 4IR must be put to the service of society, rather than the other way around.

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The 4IR has been framed as a solution for African development challenges (WEF 2017d), particularly through deepening digital capabilities (Siemens 2017) and through industrial development towards industry 4.0 (WEF 2017b). Such discourses are echoed in numerous studies on the economic potential that may be realised through the strategic application of new technologies in developing countries (Li, Hou & Wu 2017), including South Africa (WEF 2017c). One of the key levers for steering the 4IR towards equitable and just outcomes is innovation policy, which in South Africa is led by the DSI. State investment in advanced technologies has the potential to accelerate economic growth (Leicht & Jenkins 2017). However, if left to free market capitalism and the dynamics of unequal social power structures, such growth seems unlikely to be equitable. Indeed, the 4IR may very well entrench existing social and income inequalities, particularly for the ‘precariat’ whose employment – and lives – are insecure. Perhaps more critically, the 4IR is being presented as an inevitability from which there is no escape (Gillwald 2019). Kruss (2018) argues that, in order for innovation policy to respond to South Africa’s developmental challenges, and lead to just outcomes, it is imperative that the process of innovation policy development is participatory and that innovation be steered towards inclusive development that takes into account the particular developmental needs of communities. A rapidly growing body of literature addresses the question of AI and human development – the numerous ways in which AI can have both positive and negative impacts on multiple aspects of human freedoms and capabilities (Smith & Neupane 2018; Bostrom, Dafoe & Flynn 2016). Canada’s International Development Research Centre (IDRC) has published an agenda for AI and human development that could play a role in informing South Africa’s future AI regulation (IDRC 2018). The agenda proposes means to harness AI for development benefits in the domains of healthcare, public sector service delivery,

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agriculture, education and economic development. It identifies a number of challenges and risks. The challenges include elements related to institutional capacity and regulation, lack of infrastructure and skills shortages. The risks include the potential for bias and lack of accountability, loss of privacy, risks to democracy, automation-induced job loss and tax revenue loss, cybersecurity and cybercrime. The IDRC also identifies risks specific to the Global South. These include the potential for AI benefits to be unequally distributed; the potential for AI applications to be built with inherent biases that reproduce social marginalisation; the potential for surveillance and loss of privacy to disproportionately affect marginalised populations; and the potential for predatory actors to foster crime, social discord and political unrest (2018). In addition, AI depends on the ready availability of huge amounts of data, often personal data. The drive to ‘datafy’ almost all aspects of modern global society has been critiqued, particularly by Zuboff (2018), who describes the coming into being of a new surveillance economy whereby individuals relinquish personal data through extractive practices in return for simple, efficient, consumeristic transactions. Gurumurthy and Chami (2019: 36) spell out how this intensifies the power of the capitalists and drives further inequality: In the AI-led economy, algorithmic intelligence extracted from data resources is the ‘secret sauce’ that enables the disruption of the economic status quo and the attainment of new levels of efficiency. At present, such ‘intelligence capital’ is concentrated in the hands of a few transnational corporations, which have enclosed valuable data resources in order to cement their market dominance by foreclosing the possibility of competing AI innovations emerging in the future.

Moreover, the concentration of power in the hands of the already globally powerful leads to a new form of imperialistic

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monopolisation that may result in dependent states having less sovereign power to protect the rights of their citizens. Gurumurthy and Chami (2019: 36) go further by explaining that in the race towards the ‘Fourth Industrial Revolution’, an ideology of AI-frontierism is widely evidenced in policy circles. Not wanting to be left behind, developing country governments are caught up in the language of ‘innovation’ and ‘entrepreneurship’, authoring national plans and road maps for their digital start-up ecosystem and upskilling of workers. These efforts view AI-led development as a simplistic aggregate of individual efficiencies that will somehow magically add up to national productivity gains. They completely ignore the fact that development is a ‘competitive and global undertaking’, characterised by a sustained and continuing effort to capture opportunities for higher value knowledge and technological capabilities. In the current context, strides in development are possible only for countries that can harness AI at a sociostructural level for higher growth and redistributive gains. Developing countries urgently need to use AI to create and/or deepen national capacity for moving out of low value locations in the global value chain. However, the debate so far seems to flatten the global political economy of development with a broad-brush stroke, and even glib prescriptions exhorting countries of the South to build their domestic AI capabilities and upskill their populations.

In light of this, there is an urgent need to promote local capacity in AI, to better understand the complex ways in which AI- and 4IRrelated technologies more generally are affecting social status and wellbeing, and to develop context-driven regulatory frameworks to govern AI and the 4IR in ways that best secure and extend the rights of those living in South Africa.

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Employment and the future of work The global adoption of the German model of industry 4.0 has transformed the manufacturing sector, including in developing countries (Zhang et al. 2016). Africa has lagged in this process, but the digitisation of manufacturing has the potential to accelerate economic transformation in Africa (Banga & Te Velde 2018), including South Africa’s largest manufacturing sectors such as the automotive sector (Barnes 2018). However, increased levels of production automation may at the same time lead to technological unemployment (Lawrence 2018). In South Africa, the automation of the mining sector has the potential to lead to increased productivity and profit, but also job losses (Verhaege 2018). In the services sector, jobs that entail repetitive or easily codifiable tasks are also vulnerable to automation (Frey & Osborne 2017) (and, as discussed further in Chapter 2, these jobs are often occupied by women). A National Economic Development and Labour Council (Nedlac) report entitled ‘Futures of work in South Africa’ (2017) unpacks the jobs in different sectors that will be lost and those that will be needed. The majority of job losses will typically be those that are unskilled (packers, truck drivers, ballot or vote counters, and rock splitters) and in some cases semi-skilled (such as tellers, telemarketers, tour guides and train drivers), while technical and skilled jobs will be required increasingly (Nedlac 2017). As a consequence, low-skilled workers are often the most vulnerable to services automation. This presents a significant area of concern from a human rights perspective – as employers invest in new technologies, and increasingly automate production, it is important that the rights of workers are not compromised, not only in terms of the labour rights protected under Section 23 of the Constitution, but also the express right to work (discussed further in Chapter 4). The following case study sets out how automation has affected the financial services sector in South Africa.

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Case Study 1 Technological unemployment in the financial services sector Automation technologies, particularly services automation, are having a profound effect on the financial services industry. The process of digitisation means that old business models of banking taking place at physical bank branches are rapidly becoming uncompetitive in the face of digital competition in the form of online banking. In 2019, Standard Bank closed 104 branches across South Africa, amounting to 17 per cent of all its branches (Business Tech 2019). This change led to the loss of at least 1 200 jobs. The Standard Bank Group’s chief executive made reference to the 4IR in his justification of these changes: ‘South African and African companies have a duty to do everything in their power to make it possible for people to adapt successfully to the world of the fourth industrial revolution … Keeping those branches open meant wasting resources and keeping staff idle – which is very demoralising … Looked at in aggregate, it meant that our competitiveness would fall, and then – in fairly short order – so would our capacity to fulfil our economic and social purposes’ (BusinessTech 2019). The job losses were not restricted to branch closures; further jobs were lost as part of a broader technological shift in the organisation. In 2019, IOL reported that Standard Bank was streamlining its technology strategy, and built a new strategic partnership with Microsoft that included the provision of cloud services for the bank’s internal corporate functions. This realignment was preceded by the processes set out under Section 189 of the Labour Relations Act (No. 66 of 1995) and

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completed in 2018, with 526 IT employees offered retrenchment as part of the restructuring of the bank’s IT operating model (Fin24 2019). These examples of technological unemployment highlight the difficult tensions that emerge when the priorities of economic competitiveness and employment do not pull in the same direction. While firms have corporate responsibilities with respect to managing their operations and employment profiles, a holistic view should be taken of how to protect employment, an integrated approach to upskilling and job creation in the face of increasing automation.

Technological unemployment in the formal economy is not the only area of concern from a rights perspective. Fundamental structural changes to the nature of employment present new challenges (World Bank 2019). The rise of ‘gig economies’, which use digital platforms to connect demand and supply in services markets, has created new modalities of employment. A classic example of this is the shift from a regulated taxi industry (with formalised employment and collectivised labour) to the Uber platform (where each driver is a subcontractor and has few formal labour market protections). On digital labour market platforms such as PeoplePerHour, TaskRabbit and Mechanical Turk, workers are typically employed with short-term arrangements that are both precarious and unpredictable. The lack of formal protections for these workers has given rise to concern about an emerging ‘precariat’ that subsists on working modalities that leave them vulnerable to uncertainties and exploitation (Munck 2013; Huws 2014). One of the key tasks for the protection of human rights in the 4IR is to examine labour conditions in the gig economy closely and to enact regulations to protect vulnerable workers in line with Section 23 of the Constitution (Popescu 2018).

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Conclusion Looking at the South African public sector, it is clear that the 4IR is becoming increasingly popular as a heuristic for making sense of technological change. The concept has become embedded in a variety of departmental frameworks and is driving strategic thinking at all levels. In this overarching process, the SAHRC has a critical role – as an institutional actor that has a mandate to monitor the public sector and where necessary to engage with public sector actors in order to bring policy, legislation and regulation in line with human rights principles and processes. As various departments develop their policies around the 4IR, there is a critical opportunity to influence policy-making and ensure that national responses to the 4IR are developed and promulgated from a human rights-based approach (as set out in Chapter 7). In addition, while we face the onset of the 4IR, which raises new notions about digital rights and access, South Africans do not all enjoy equal access to the rights promised in the analogue world. Children are still without education, women without access to healthcare and many others without access to food security, water or sanitation. In this regard, it is critical not to lose sight of the state’s responsibility to realise the rights set out in the Constitution and the provisions of the policies relating to internet access and other technologies associated with the 3IR in the face of the rapid societal changes being brought about by the 4IR.

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2

Data governance in South Africa: Cybersecurity and the right to privacy

In a world where data and information have become currency and where technological innovation is associated with the 4IR and driven by an ever-increasing need for more information, information privacy and cybersecurity have become dominant concepts under the broad umbrella of data governance. Indeed, privacy is the key right associated with the 4IR and AI. In South Africa, privacy is protected under Section 14 of the Constitution. Cybersecurity relates to institutional online infrastructure established to protect information and data from being hacked from outside the network. In some respects, privacy and cybersecurity are competing concepts, with the drive to secure cyberspace against terrorism, money laundering and related international crimes resulting in online surveillance measures that further curtail the right to privacy. However, without secure online processes, networks and databases, data and information stored online are vulnerable to cyberattacks, which may result in violations of the right to privacy and other human rights (Morachimo 2019). For Privacy International (n.d.), the protection of human rights and particularly the right to privacy should be at the heart of cybersecurity frameworks. This chapter sets out the emerging regulatory framework on data governance, privacy and cybersecurity in South Africa, and examines some of the latent associated human rights concerns.

Privacy in international law The Universal Declaration on Human Rights, adopted in 1948, was the first international human rights instrument to recognise the right to privacy under Article 12. It states: No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks

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upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Here, privacy is directly associated with one’s private life, with informational privacy – ‘correspondence’ – and a latent right to dignity expressed as ‘honour and reputation’. Since 1948, the right to privacy has been enshrined and expanded in various other international human rights instruments, including Article 17 of the International Covenant on Civil and Political Rights (ICCPR), Article 14 of the UN Convention on Migrant Workers and Article 16 of the UN Convention on the Rights of the Child (UNCRC). Originally conceived of as ‘the right of the individual to be let alone’ (Warren & Brandeis 1890: 205), the right to privacy is now conceived as a broad concept and as a basis for freedom of personality. The UN Special Rapporteur on the Right to Privacy Professor Joseph Cannataci (2020: Para 16) powerfully states in his most recent report to the UNHRC: Privacy enables the full development of the person, while protecting against harms that stunt human development, innovation and creativity, such as violence; discrimination; and the loss of freedom of expression, association and peaceful assembly.

Indeed, privacy has also been considered a fundamental value of democracy and the enjoyment of political rights without interference. Moreover, it is recognised that there is a particular interdependence between the right to privacy, women’s empowerment and gender equality, both in terms of freedom of personality and in terms of a right to bodily integrity that, for women, extends to reproductive rights (Loideain & Adams 2020; Cannataci 2020). In September 2019, the UNHRC adopted a resolution on the right to privacy in the digital age. Section 5 of the resolution notes that new and emerging technologies, including AI, can impact the enjoyment of the right to privacy and other human rights. To minimise the risks that these technologies may pose to the right to privacy, adequate

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regulation or other appropriate mechanisms that take into account international human rights law in their design, development and deployment should be adopted. This will ensure a safe, secure and high-quality data infrastructure with human-centred auditing and redress mechanisms. Of particular relevance here, and among a number of other actions, the resolution calls on states parties to review their procedures, practices and legislation regarding the surveillance of communications regularly in order to ensure the full and effective implementation of all their international human rights law obligations. This includes review of mass surveillance; the interception and collection of personal data; and the use of profiling, automated decision-making, machine learning and biometric technologies – which all can be detrimental to the upholding of the right to privacy (UNHRC 2019). Furthermore, the resolution calls for the development and maintenance of preventive measures and remedies for violations and abuses relating to the right to privacy in the digital age. Particular emphasis is placed on protecting women, children and persons in vulnerable situations or marginalised groups (2019). Quality education and lifelong education opportunities need to be promoted for all, which foster the digital literacy and technical skills required to effectively protect privacy rights. Finally, Section 6(j) businesses must refrain from interfering with the right to privacy in an arbitrary or unlawful way. Instead, businesses should seek to protect individuals from any harm caused by ‘data collection, processing, storage and sharing and profiling, and the use of automated processes and machine learning’. As will be set out below, most of these requirements are provided for under Popia in South Africa. However, a particular area where further engagement is required is in promoting lifelong education about data rights and digital literacy – a point that is emphasised in this book.

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Privacy in the African human rights system Within the human rights frameworks of the EU, the right to privacy is protected under Article 8 of the European Convention on Human Rights and, more recently, significantly expanded under the GDPR (European Commission 2018). Within the African regional human rights system, privacy is not expressly recognised under the ACHPR. Yilma (2017: 115) remarks that this may have been a drafting oversight and that many African constitutions do include a specific right to privacy (see also Adams & Adeleke 2020). However, the right is enshrined under Article 10 of the African Charter on the Rights and Welfare of the Child (ACRWC).6 This book is limited in addressing how far the 4IR affects the rights of children, even though this is a critical area of concern with respect to issues such as cyberbullying and child pornography. Further research in this area should take note that an express right to the protection of the privacy of the child is included in the ACRWC and use this as part of the regulatory foundation for its express protection. In addition, the African system includes supplementary soft-law frameworks that have particular relevance to the right to privacy within the context of the development of the 4IR. In 2002, the African Commission on Human and Peoples’ Rights adopted the Declaration of Principles on Freedom of Expression in Africa that sought to establish a regional framework for freedom of expression and related rights, including the right of access to information. However, the declaration was shown to be largely inadequate for addressing the information-related rights concerns raised in the decade following its adoption. In response, the African special rapporteur on freedom of expression and access to information led a process, together with civil society organisations and individuals across the region, to redraft the declaration in an effort to modernise its principles and extend its reach. The revised Declaration of Principles on Freedom of Expression was adopted in 2019. As an important document on privacy rights and in particular freedom of expression

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and access to information in Africa, the declaration is detailed more extensively in Chapter 5. In response to the growing concern of cybercrime in Africa, in 2014 the AU adopted the AU Convention on Cyber Security and Personal Data Protection as a foresighted measure to balance the competing drive for digitisation with the need for a well-regulated online space where transactions and networks are secure and individual rights, particularly the right to privacy, are protected. The convention is aimed specifically at addressing the gap between the security of online networks and communications with regionally protected human rights, noting that it is ‘meant to regulate a particularly evolving technological domain’ where there are ‘high expectations of many actors with often divergent interests’ (AU 2014: Preamble). Indeed, it provides for the establishment of a regulatory framework on cybersecurity and personal data protection, taking into account the requirements of respect for the rights of citizens guaranteed under applicable domestic laws, international human rights conventions and treaties, particularly the ACHPR. The convention recognises cybercrime as a real threat to the security of computer networks and the development of the information society in Africa, and seeks to define broad guidelines of the strategy for the repression of cybercrime in the AU. It aims to do so by introducing new offences specific to ICTs and adopting standard proceedings concerning information and telecommunication technologies as well as identifying conditions for instituting proceedings specific to cybercrime. The convention is divided into a number of chapters that regulate electronic transactions and personal data protection, promoting cybersecurity and combating cybercrime. To provide further detail, the convention (in the preamble) notes the following as the major obstacles in Africa to a secure online space where individual rights, and particularly information privacy, are not at risk: • The gaps affecting the regulation of the legal recognition of data communications and electronic signature;

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• The absence of specific legal rules protecting consumers, intellectual property rights, personal data and information systems; • The absence of e-services and telecommuting legislation; • The absence of electronic techniques for commercial and administrative acts; • The probative elements introduced by digital techniques (time stamping, certification, etc.); • The rules applicable to cryptology devices and services; • Oversight of online advertising; and • The absence of appropriate fiscal and customs legislation for electronic commerce. In South Africa, some of these concerns have been addressed with the promulgation of the Popia (discussed below). However, others remain critically unregulated as the drafting and review process of a cybercrimes and cybersecurity law is finalised.

Data governance in South Africa In South Africa, the right to privacy is provided under Section 14 of the Constitution, which affords South African citizens a level of privacy that extends beyond many other Southern African Development Community (SADC) and regional constitutions which focus only on privacy in the home. In addition to the right not to have your person, home or property searched, or your possessions seized, the Constitution expressly includes the right to the privacy of one’s communications. Privacy rights are not absolute and are thus subject to limitations, such as the limitation of an expectation of privacy while in detention centres. The right to privacy has been expanded through the courts (as discussed below) and, pertinently, through the promulgation of Popia. Established to give effect to Section 14, Popia is (at the time of writing) not yet fully in effect. It is the primary instrument for

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the regulation of information privacy in South Africa and its aim is to regulate, in harmony with international standards, the processing of personal information by public and private bodies in a manner that gives effect to the right to privacy subject to justifiable limitations that are aimed at protecting other rights and important interests. (Preamble)

Popia broadly follows the blueprint of the older EU Data Protection Directive adopted in 1995, prior to the introduction of the GDPR in May 2018. It highlights the importance of data privacy, provides regulations and other mechanisms for the processing of personal information, and establishes the office of the information regulator (Irsa) as an overseer. Popia stipulates that all personal information must be processed in accordance with the eight principles contained in the Act, namely: (i) accountability, (ii) processing limitation, (iii) purpose specification, (iv) further processing limitation, (v) information quality, (vi) openness, (vii) security safeguards and (viii) data subject participation (Chapter 3). Failure to adhere to these principles will result in penalties being incurred (Chapters 2 and 11). Popia operates on the premise of lawful processing in that, regardless of the fact that individuals disclose their personal information, all information must be lawfully collected, responsibly and safely processed, and efficiently destroyed once its use is complete. The Act provides further measures to ensure adherence to lawful processing. Prior to the enactment of Popia, privacy and data protection were mentioned in the following legislation as well as by the South African Law Reform Commission in 2000, 2003 and 2005: • Consumer Protection Act (No. 51 of 2008) (CPA); • Promotion of Access to Information Act (No. 2 of 2000) (Paia); • National Health Act (No. 61 of 2003); • National Credit Act (No. 34 of 2005) (NCA);

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• Electronic Communications and Transactions Act (No. 25 of 2002) (Ecta); and • Regulation of Interception of Communications and Provision of Communications-Related Information Act (No. 70 of 2002) (Rica). Notwithstanding the promulgation of Popia in 2013, the courts have engaged with privacy since the 1990s and set precedent on matters of privacy under common law and as a human right. This includes recognising privacy as ‘an independent personality right’, which the courts included in the concept of dignitas in Bernstein and Others v Bester NO and Others (1996) 2 SA 751 (Para 66) and echoed in Minister of Police and Others v Kunjana (2016) 2 SACR 473, as well as recognising the inherent value of privacy in confidential medical information in NM and Others v Smith and Others (2007) 5 SA 250, particularly as related to HIV status, where the courts decreed that ‘all private and confidential medical information should receive protection against unauthorised disclosure’ (Para 44). Apart from regulating the collection and use of personal information obtained through electronic transactions, Ecta (as a converse to privacy) is an example of the state’s commitment to enabling all South African citizens to benefit from and access the internet. In fact, Ecta was enacted to provide for the facilitation and regulation of electronic communications and transactions in South Africa, with one of the key objectives being the promotion of universal access to electronic communications and transactions by small, medium and micro-enterprises. This access includes promoting access primarily in underserviced areas, removing and preventing barriers to electronic communications and transactions, promoting technology neutrality, and ensuring compliance with international standards in the provision and development of electronic communications in South Africa. Section 5 of Ecta requires the minister of telecommunications and digital technologies to develop a national e-strategy to address these objectives and Section 6 places an obligation on the state to outline

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strategies and programmes to provide internet access to disadvantaged communities, encourage private sector schemes to provide universal access, adopt and develop new technologies for attaining universal access, and stimulate public awareness of the benefits of internet connectivity and electronic transactions. Despite these commitments, on a day-to-day basis Ecta is more often relied upon to give effect to consumer protection in the digital space and mirrors the CPA, albeit for electronic transactions. The Electronic Communications Act (No. 36 of 2005) (ECA) creates a similar commitment to universal access, as detailed in Ecta. Chapter 14 provides for the continued existence of the Universal Service and Access Agency, which existed under the now repealed Telecommunications Act (No. 103 of 1996). The agency is tasked with numerous functions, the overarching goal of which is the promotion of universal access and universal service. In this context, universal access and universal service refer to access by all areas and communities in South Africa to electronic communication services and electronic communication network services, including the universal provision thereof. Universal service and access are an important focus area of the National Integrated ICT Policy White Paper, and both Ecta and the ECA potentially stand to be amended to bring them in line with the white paper. To achieve universal service and access, a number of challenges have to be overcome, including the persistence of the digital divide, outdated definitions, and lack of alignment to institutional frameworks and roles. The goal remains ensuring that everyone, regardless of who they are, where they live, or their social or economic standing, can benefit from the offerings of ICT (DTPS 2017:  30–31). Priority areas include increasing coverage to rural, remote and underserviced areas, and digital inclusion of all segments of society. This is to be achieved through targeted interventions and setting out the framework and process to develop clear definitions and targets for universal service and access.

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Privacy and cybersecurity in the 4IR In South Africa, the increasing use of cell phones, tablets, computers and other internet connected devices for activities such as banking, shopping, education, business, social media and communication create huge swaths of personal data held by both private organisations and the government. These technologies are increasingly being associated with the IoT, a key component of the 4IR whereby internetenabled sensors and wireless tags are embedded in real-world objects that enable remote monitoring and tracking. In numerous instances, private information is collected – from biometric access to online banking and smart IDs to ‘smart classrooms’ and the use of ICTs in classrooms – without adequate personal data protection. South Africa has a history of human rights violations made possible by state-led surveillance. Under apartheid, biometrics were used to track migrant mine workers and the government was an early adopter of the organisational capabilities provided by computing to enforce censorship laws (Breckenridge 2014). The technological infrastructure of the 1980s helped the government to classify and control the population through the storage and retrieval of information (Bristow 2017). Arguably, this is being used in current migration management strategies (Darch et al. 2020). Fuelled by concerns of terrorism, illegal migration and trade, drug smuggling and crimerelated activities, biometric surveillance technologies that harvest personal data ensure the movements of people are meticulously monitored and tracked. This coincides with Objective 16.9 of the SDGs to ensure that everyone has a digital identity by 2030. Indeed, to exist outside biometric databases may, when it comes to free movement and indeed access to other rights mediated by biometric technologies, mean not to exist at all (Darch et al. 2020).7 Surveillance technology falls into overt categories of surveillance, including ‘smart’ CCTV cameras, body-worn cameras, automated number plate recognition and aerial drones (Stone 2020), and less obvious surveillance that captures metadata generated through

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internet and electronic device usage such as mining the data generated by social media behaviour, search histories, financial transactions, travel histories and email communications. All these forms of surveillance rely on technologies associated with the 4IR and are set to be greatly expanded with its ongoing developments. Surveillance in South Africa is governed by Rica. This Act grants the state authority to intercept domestic communications, but only with authorisation by a judge through an ‘interception direction’. Unfortunately, Rica grants much power to state intelligence agencies in monitoring electronic communications, but the provision does not allow a person to be notified of their intercepted communications (Section 42). On various occasions, Rica has been faulted for its failure to establish an independent authority to oversee the state’s exercise of surveillance powers. This resulted in a landmark case, amaBhungane Centre for Investigative Journalism, NPC and Another v Minister of Justice and Correctional Services and Others 2020 (1) SA 90, challenging Rica and revealing the unlawful and unauthorised interception of the journalists’ communications. In terms of privacy as it relates to surveillance, the High Court found: The value of privacy is privileged and expression is given to the idea that where exceptions to respect for privacy are to be allowed, a high threshold of justification is stipulated. Selfevidently, to trespass into the private realm is permissible only to the extent that a superior claim to do so can be made on grounds of necessity. This implies that other means to achieve the aims of the interception would have been ineffective, and the gravity of the circumstances outweighs the primary value of privacy. The safeguards model recognises the need for an independent authority to approve interceptions. (Para 35)

The court further recognised the outdated nature of Rica in the context of the 4IR and rapid technological advancement: RICA was enacted [in] 2002, self-evidently, composed to address what was understood to be the character of the telecommunications environment of that time. Seventeen years

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later, that environment has evolved. Technological possibilities and awareness of the scope of such possibilities in 2019 are different and so are the habits of those who seek the utilisation of telecommunications technology to their own advantage. The risk of abuse by criminal and other nefarious elements was expressly recognised by a default prohibition on the interception of signals or storing the content of communications. (Para 28)

The court found several sections of Rica unconstitutional; however, the Constitutional Court is yet to give judgment on the matter. The unauthorised surveillance of journalists by state intelligence in South Africa is discussed in detail by Jane Duncan in her 2018 book Stopping the spies: Constructing and resisting the surveillance state in South Africa. Surveillance is not limited to state security agencies. Individuals and communities are under constant surveillance by private companies. Private security firms collect data by placing cameras in neighbourhoods under the auspices of safety; facial recognition software tools are created and sold for commercial use (discussed further in Chapter 8); and companies, in collaboration with other private organisations, provide applications that can monitor a phone user’s identity, banking information, location, social media accounts, calorie intake, health statistics, reproductive cycles, appointments, passwords and so on. In addition, surveillance under the guise of ‘cybersecurity’, when used outside legal parameters, can be used for censorship, counterintelligence and propaganda (Duncan 2018). Many of these concerns were also raised during South Africa’s review by the UN Human Rights Committee (the committee under the ICCPR) in 2016, where it was noted in the concluding observations that the Committee is concerned about the relatively low threshold for conducting surveillance in the State party and the relatively weak safeguards, oversight and remedies against unlawful interference with the right to privacy contained in the 2002 Regulation of Interception of Communications and Provision of CommunicationRelated Information Act. It is also concerned about the wide scope

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of the data retention regime under the Act. The Committee is further concerned at reports of unlawful surveillance practices, including mass interception of communications carried out by the National Communications Centre, and at delays in fully operationalizing the Protection of Personal Information Act, 2013, due in particular to delays in the establishment of an information regulator. (Articles 17 and 21, Para 42)

In addition, since early March 2020 and during the time of the writing of this book, the coronavirus disease 2019 (COVID-19) pandemic has radically changed the living circumstances of all South Africans under the regulations passed to give effect to the declaration of a national state of disaster in March 2020. Labuschaigne and Staunton (2020) comment that ‘the measures announced on 15 March and 26 March represent the most comprehensive limitation on the freedom of movement and assembly of all South Africans since apartheid’. Under the conditions of the COVID-19 pandemic, the themes of this book have been thrown into stark relief, both in terms of the limitations on human rights posed by the state of disaster regulations and the rapid turn towards data-driven digital solutions, many of which pose serious challenges to the enjoyment of the right to privacy. In the US, for example, light has been shed on the ways in which algorithms designed to determine which patient has a likelier chance of survival and therefore should be afforded access to a ventilator reproduce racial biases resulting in a higher proportion of people of colour dying from the coronavirus. In response, South Africa recently appointed former Constitutional Court Judge Kate O’Regan as the dedicated COVID-19 judge for assessing matters pertaining to privacy, personal information, surveillance and tracking in the context of the national response to the pandemic (South Africa 2020). One of the key regulatory responses internationally to privacy concerns associated with the 4IR, big data and AI has been to promote privacy by design in the development of new technologies. Privacy by design includes ensuring that the maximum privacy settings are set

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by default on services offered. The European Commission has, rather more stringently, defined privacy by design as when the design of new technologies and data systems embeds the principles and provisions of data protection law such as data minimisation. In order to promote privacy by design, the EU’s GDPR provides that in the rollout of new technologies where there is a potential high risk to human rights, data protection impact assessments (DPIAs) must be conducted (Article 35). The Article 29 Working Party of the GDPR notes the following as examples of new technologies that could infringe on individual rights and freedoms, and where DPIAs should be conducted: Scoring/profiling, automatic decisions which lead to legal consequences for those impacted, systematic monitoring, processing of special personal data, data which is processed in a large scale, the merging or combining of data which was gathered by various processes, data about incapacitated persons or those with limited ability to act, use of newer technologies or biometric procedures, data transfer to countries outside the EU/EEC and data processing which hinders those involved in exercising their rights. (EU n.d.)

This suggests a broad scope of data processing technologies and systems which, under the GDPR, would be required to conduct a DPIA. Notably, as discussed by Loideain and Adams (2020), these assessments are to assess not only the impact of new technologies on privacy and data protection but also on all human rights. In this instance, the GDPR recognises the interdependence of human rights and that the right to privacy is protected or violated together with other rights. This is discussed in further detail in relation to a human rights-based approach to the regulation of the 4IR and human rights impact assessments set out in Chapter 7 of this book. However, it is important at this point to note the legal standing of the GDPR in South Africa. While the GDPR applies to member states of the EU, it also has jurisdiction over the processing of the information of citizens of EU member states wherever this takes place in the world. Thus, if a South African company was processing the data of an EU member state citizen, they would need to

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comply with the GDPR. In addition, the GDPR is broadly considered the leading data protection instrument globally and any country where respect for fundamental freedoms is central should seek to meet the best practice standards set out therein. Lastly, the GDPR provides that EU member states cannot share any personal data with a country that does not have as high a level of data protection as provided under the GDPR. While South Africa, with its current data governance framework largely consisting of Popia, does not meet the threshold set in the GDPR for data sharing, the GDPR still provides a critical benchmark. Ensuring – ultimately – a high level of data governance and data protection regulation will ensure that EU companies can trade and engage with South African entities (Staunton et al. 2019). An additional regulatory response to privacy by design is the notion of data trusts. The idea is being mooted internationally as a means of lawfully sharing personal data in ways that do not infringe on the data rights of individuals. In effect, data trusts are a legal concept derived from trust law, which provides for the safe and ethical sharing of personal data between trusted parties with the authorisation of the data subject. Data trusts came about as an innovative legal solution for addressing the concern that strict data protection laws such as the EU’s GDPR do not allow for data sharing and therefore stymie data-led innovation. Data trusts are considered a tool for enhancing data-led innovation insofar as they provide a legal, trusted and accountable vehicle for sharing data in compliance with strict data protection laws; in South Africa, this would be Popia. The Open Data Institute (2018) is leading the UK government’s work in this area, where the idea is currently being sandboxed. Notably, however, data trusts have yet to be fully trialled and so there is no clear evidence of their effectiveness. In addition, they appear to offer opportunities for monopolisation, where a trustee is able to make decisions about with which trusted parties to share data. Should data trusts be piloted in South Africa, Irsa and the SAHRC should be the key bodies to conduct oversight of such processes.

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Cybercrimes and cybersecurity Cybersecurity is the integrated use of security mechanisms and measures that protects how, what, where and when we process electronic information/data from different platforms (SSA 2015: 5). Cybersecurity in South Africa began as a response to the wave of international strategies to combat crimes and attacks on critical infrastructure (Sutherland 2017). With the continued increase of internet access and 4IR advance­ ments, South Africa has faced regular cyberattacks (Mimecast 2019). These crimes often went unreported, as reporting was made mandatory only recently. Cybercrimes include ransomware, ‘dark net’ transactions, identity theft, data breaches, terrorism, cyberbullying/intimidation and online harassment. In the 2020 Threat Intelligence Report of Mimecast, a trend summary of South Africa indicates that the country suffered 14 major attacks in the last quarter of 2019. Repeated attacks were made against the IT sector, the banking sector, the insurance sector, the manufacturing industry, the retail industry and the mining sector (Mimecast 2020). The 2019 IBM Cost of a Data Breach Report showed that the average cost of a data breach in South Africa stood at just over R56 million (US$3 million), with the average number of compromised records calculated as around 22 000. On average, it took 175 days to identify a breach and 56 days to contain the breach incident. The health and financial industries suffered the most serious attacks (IBM Security 2019: 26). A number of high-profile data breaches have taken place, including the hacking of Liberty Life’s insurance division’s emails for ransom in 2018; the Master Deeds Office breach where the personal information of millions of people was placed on a publicly accessible server and discovered online; and the incident where the names, ID numbers and emails of almost a million South Africans were disclosed through the ViewFines website (Tehillah 2018). These incidents are particularly concerning given that Popia is not yet in

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full effect and demonstrate the critical risk to privacy of insecure cybersecurity. The Cybercrimes and Cybersecurity Bill, first introduced in Parliament in 2017, sought to criminalise cyber-related crimes (including fraud, extortion, forgery, unlawful processing of data and theft) in accordance with international standards and practices. In October 2018, the bill was amended to address only issues of cybercrimes and it was renamed the Cybercrimes Bill, removing the provisions relating to cybersecurity.8 Prior to its amendment, the bill was the subject of much contention between the state and stakeholders for potentially criminalising online journalistic activities and failing to strike a balance between internet freedom and privacy rights and between excessive surveillance powers of the state and ensuring a safe and secure cyberspace (see the SAHRC Submission on the Bill 2017 [SAHRC 2017]). The bill is currently before the National Council of Provinces. Without the enactment of the bill, Ecta remains the key legislation addressing cybercrime. Chapter XII provides for the roles of cyber inspectors to monitor activities on websites and information systems in public domains. Section 84(1) specifically relies on the fact that, except in pursuance of the Act, any information obtained may not be disclosed to any other person and that any disclosure will result in penalties. Chapter XIII deals specifically with cybercrimes such as extortion, fraud, forgery and unauthorised processing of data. At first glance, Ecta has many similarities with the Cybercrimes Bill. In addition, Section 19 of Popia places an obligation on public and private organisations (‘responsible parties’) that process personal information to have in place both operational and technical security measures of a reasonable standard that protect the privacy of all individuals. Operational measures include company policies and procedures to protect personal information, while technical measures include using updated operating systems, encryption, licenses, firewalls, virtual private networks and security systems.

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Though not formally binding, the King IV Report on Corporate Governance for South Africa reiterates the importance of privacy in technology and information governance as a principle. As set out under Principle 12, good governance involves information architecture that supports confidentiality, protection of personal information, continual monitoring of information security and ‘ethical and responsible use of technology’ (Institute of Directors Southern Africa 2016: 62). An additional policy framework is found in the National Cybersecurity Policy Framework of 2015, aimed at governmental coordination, establishing cybersecurity support structures and fostering intergovernmental cooperation on matters of cybersecurity. Despite these aims, the framework has been heavily criticised. Sutherland (2017:  101) states that ‘it is of considerable complexity and is being implemented only slowly, with very limited reporting and Parliamentary oversight’.

Conclusion Much of this chapter has focused on the current and emerging frameworks governing the right to privacy in South Africa. The right to privacy is implicated almost across the board by the 4IR due to its reliance on the availability (production, collection and processing) of personal data. The other chapters of this book set out where privacy intersects with other human rights in various 4IR-related contexts. With the coming into effect of Popia, in-depth collaboration between Irsa and the SAHRC should inform the promotion and protection of the right to privacy going forward. More broadly, the right to privacy in South Africa in the context of the 4IR should be supported by awareness programmes. To some extent, it can be argued that privacy is a right enjoyed by the privileged. Many South Africans may not fully understand the meaning and content of privacy, the disclosure of personal information or cybersecurity. Often, people disclose personal

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information to receive a basic service. If those collecting personal data do not follow the procedures for lawful data processing under Popia and if adequate security measures are not in place, the civil liberties of society are at risk of violation, breach and commodification. Citizens must be empowered to use and benefit from technologies, and must be aware of how their personal data is used, through opening pathways for communication at grassroots level for privacy education.

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3

Predictive policing and digital justice

The use of AI and 4IR technologies to support law enforcement and court systems in South Africa is increasing. Broadly, such technologies are thought to increase efficiency and fairness in policing and justice. With predictive policing technologies – which include AI applications, proprietary algorithms and big data analysis – crimes can be detected and prevented before they are committed. In court systems, advanced 4IR-related technologies have the potential to work efficiently and tirelessly in an unbiased, competent and transparent manner, applying the same level of enquiry to all cases (Tegmark 2017: 106). While in South Africa the use of these technologies in the criminal justice system is currently limited (discussed in detail below), in the US (where they are more prevalent) they have been shown to produce discriminatory results, particularly along racial lines. It is critical to assess the human rights implications of the use of new technologies, particularly where such technologies are used directly in the administration of justice. Indeed, as will be set out in this chapter, the adoption of 4IR technologies in the criminal justice system raises a multitude of possible human rights concerns, including the right to privacy, equality and non-discrimination, freedom of movement, freedom of association, freedom and security of the person, assembly, demonstration, picket and petition, access to courts and dignity; and the rights of arrested, detained and accused persons (including the presumption of innocence, legal representation, the right to a fair trial and the admission of evidence obtained). In such circumstances, the operationalisation of new technologies by criminal justice officials must be safeguarded to prevent the undue violation of rights (Stone 2020) and to promote accountability and transparency.

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This chapter is set out thematically, looking at predictive policing and digital justice. It details various uses internationally of advanced surveillance technologies by law enforcement as examples. Further information on algorithmic bias and inequality is provided in Chapter 4.

National regulatory framework The National Development Plan (NDP), as South Africa’s broad strategic policy framework, has the overall aim of eliminating poverty and reducing inequality by the year 2030. Inequality is to be reduced through factors such as ensuring that all people live safely, with a strengthened, independent and fair criminal justice system supporting social cohesion and unity and improving community environments (NPC 2012: 34). People should feel safe and have no fear of crime, particularly women, children and vulnerable groups. Necessitated by its history, the NDP speaks of professionalising and demilitarising the police. Chapter 12 of the NDP lists four criteria in terms of which these safer communities will be built. They are: 1) a single set of objectives for the criminal justice system; 2) the demilitarisation of the police; 3) an integrated approach to policing; and 4) ensuring that vulnerable groups and rural communities have equal protection. Indeed, fear of crime is viewed as a hindrance to economic development and equality, and thus personal safety is positioned as a human right necessary for human development, quality of life and productivity. Seven points are identified in the NDP for strengthening the criminal justice system, with 4IR technologies likely to underscore the thinking behind at least five of them. These include assisting with the establishment of a single, coordinating and management structure;

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measures to improve the performance of the courts; operation priorities that improve the capacity of the courts; integrated and seamless information technology databases; and the modernisation of all aspects of the system and equipment of the criminal justice system in order to increase efficiency, eliminate bottlenecks and improve various court systems (NPC 2012: 388). Technology is key in achieving a strengthened, centralised, cost-effective and efficient system for the police, prosecutors, courts and prisons. The NDP is supported by two white papers, namely the White Paper on Policing (WPP) and the White Paper on Safety and Security (WPSS). As an extension of Chapter 12 of the NDP, the WPP addresses the evolving nature of crime, new legislation and new technologies, which called for existing policy review. The WPP is also intended to promote civilian oversight of the police. ICTs are recognised under the WPP as tools that will support the modernisation of crime management and intelligence-led policing, with independent oversight structures. The WPP sets out how, by 2030, the police are to command respect and ensure people are safe and secure in a system based on legitimacy and trust. This aligns policing with Section 206 of the Constitution, which provides that the South African Police Service (Saps) is under civilian control and does not exist to ensure control over civilians. Vital for the establishment of a professional police service, management tools are viewed as a means to hold police officials to account, to address integrity and to stamp out corruption. Technology can support the increasingly popular notion of proactive policing, improved efficiency, trend analysis and departmental interoperability. This includes investigating social media platforms as new ways of sourcing and disseminating information (Civilian Secretariat for Police 2016a: 24–25). Much like the WPP, the WPSS functions as the overarching policy for safety, crime and violence prevention. Its goal is to ensure the creation of sustainable, well-resourced oversight mechanisms that will, among other things, monitor crime prevention. The WPSS

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seeks to combat crime through a knowledge- and intelligence-based approach to safety and security. The availability of data, which are central to many 4IR-related technologies, is identified as critical to planning and evaluating crime reduction initiatives. In this sense, the success of the WPSS hinges almost entirely on the legitimisation of the collection of reliable data to support strategies aimed at improving the efficiency of the criminal justice system (Civilian Secretariat for Police 2016b: 14). In the WPSS, data are indicated as central to inform the development and adoption of national polices, strategies and plans. In devising the strategy driving safety and security in access, protection and service, the WPSS names equality as one of the central tenets. However, as discussed by Stone (2020), the extent to which SAPS has operationalised 4IR-related technologies in a way that is consistent with the right to equality is questionable. This will be discussed in further detail below. Furthermore, there is an apparent inconsistency between the intention of the enabling policies outlined above and informationbased laws. Paia was enacted to give effect to the constitutional right of access to information held by the state, and yet in Chapter 4 of the Paia a number of provisions limit the disclosure of information. Indeed, grounds for the refusal of access to information include commercial information containing trade secrets, protection of law enforcement and legal proceedings, and defence and security interests (Sections 36, 39 and 41 of Paia). However, Paia is broadly considered not to be fit for purpose in the digital age (as discussed in Chapter 6 of this book). Popia is to be enacted to promote the protection of personal information processed by both public and private bodies, and sets out the principles whereby the processing of personal data must take place, including by obtaining consent (see the previous chapter of this book). This excludes the need to follow such principles if the processing of personal information is in the public interest, including national security; prevention, detection and prosecution of offences; and obtaining data through historical, statistical or research activity

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(Section 37 of Popia). In effect, Popia does not provide safeguards for the collection and processing of personal information by SAPS or other security agencies (see also Duncan 2018). In addition, in its current form, Popia’s provisions relating to ADM – which, as will be discussed below, is a critical issue for predictive policing and digital justice – are broad. Section 71(1) (on ADM) sets out that subject to subsection (2), a data subject may not be subject to a decision which results in legal consequences for him, her or it, or which affects him, her or it to a substantial degree, which is based solely on the basis of the automated processing of personal information intended to provide a profile of such person including his or her performance at work, or his, her or its credit worthiness, reliability, location, health, personal preferences or conduct.

This section would not apply to any automated decisions if the decision is taken in connection with the conclusion or execution of a contract and the request of the data subject under the contract has been met, appropriate measures have been taken to protect the data subject’s legitimate interests, or is governed by a law or code of conduct in which appropriate measures are specified for protecting any such legitimate interests. Appropriate measures in the context of Section 71 of Popia must provide an opportunity for the data subject to make representations about any such automated decisions and require a responsible party to provide the data subject with sufficient information about the underlying logic of the automated processing of information relating to the data subject to make such representations. Article 22 of the EU’s GDPR broadly reflects what is set out under Article 71 of Popia, providing that ‘the data subject shall have the right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her or similarly significantly affects him or her’. However, Subsection (2) of Article 71 arguably leaves the door wide open for the use of ADM

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by law enforcement officials, particularly given that Subsection  (2) does not require the provisions of Subsection (3) to be taken into account. In interpreting these provisions, Irsa will have to ensure that appropriate safeguards are in place to ensure that the use of ADM (including AI and data-based profiling) is transparent, accountable and fair. Finally, Rica grants the government the ability to intercept all private communications and prohibits the provision of any telecommunications that cannot be intercepted. In terms of Section 47, such communications can be used in criminal proceedings and are admissible as evidence (Duncan 2018). More recently, certain provisions of Rica have been declared unconstitutional by the Pretoria High Court, particularly with regard to the bulk surveillance powers provided for by the Act. Read together with the WPP and the WPSS, it is clear that there is a legislative and policy gap in safeguarding the processing of personal information by SAPS and other law enforcement agencies. While this may lead to overt violations of the right to privacy, it has other human rights implications that will be discussed further below.

Predictive policing Broadly speaking, predictive policing refers to the use of analytical techniques, in the form of computer algorithms, that analyse massive data sets to identify likely targets for police intervention to prevent or solve crimes by making statistical predictions (Joh 2017: 287–288). This technology is particularly appealing to resource-constrained police forces such as SAPS. These solutions promise to offer crucial tools for strengthening the effectiveness of crime prevention and deploying cost-effective solutions that directly address capacity shortfalls (Stone 2020). After all, getting more boots on the ground often requires years of investment in the training of new recruits, whereas software solutions often only require an additional license and a download. However, in

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exploring methodology used in predictive policing solutions, a number of salient human rights concerns arise above and beyond concerns about privacy, particularly in relation to discrimination, prejudice and bias (see Chapter 4). Unpacking this statement more fully requires a deep dive into the datasets on which predictive policing solutions rely. While predictive policing uses the same automated analysis technology applied in shopping, consumer finance and healthcare (Joh 2017: 288), it is rare that the end users of datasets also control the data inputs. This is because predictive policing uses crime data that are targeted in their nature. As Joh (2017: 289) writes, ‘every action – or refusal to act – on the part of a police officer, and every similar decision made by a police department, is … a decision about how and whether to generate data’. Here, the data selection is already the result of selective (and inevitably biased, whether justified or not) data selection – there is a multitude of reasons why certain crimes are reported and recorded while others go unreported and unrecorded. Joh (2017: 295) continues that predictive policing algorithms are dependent on data that are ‘at best a partial representation of crime in the community’ because to become part of the dataset, a crime would have to be uncovered, classified and recorded. Crime data is therefore filtered and does not present a holistic picture of crime. To date, research on predictive policing systems has revealed that they can operate to reaffirm historical prejudices. For example, in the US drug arrests continue to occur in predominantly poor and non-white neighbourhoods, which is symptomatic of the reliance on historical data that flags the same areas of the city as high risk. In South Africa, reliance on historical crime data may risk perpetuating the prejudicial history of racial discrimination that criminalised black people and exonerated white people (Stone 2020). Predictive policing functions by identifying certain areas as ‘hotspots’. Historical data opens the possibility for a feedback

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loop, which marries selection bias and confirmation bias (Joh 2017; Benbouzid 2019). The result is that those whom the police have ignored, whether involved in the commission of crime or not, will likely remain outside the data while those within the datasets will be subject to increased discriminatory treatment. Predictive policing therefore risks criminalising ‘a concentrated minority who are in spatial and social proximity to suspected criminals’ (Benbouzid 2019: 10), thereby strengthening perceptions of unequal treatment and inequality before the law in terms of Section 9 of the Constitution. Part of this problem is the misconception about what predictive policing in fact serves to accomplish. Crime reduction is measured by risk scores that weigh certain metrics on scales to determine and rank required police intervention in order of priority. Effectively, this turns law enforcement from the focus on protection of the public to a controlled supply of public protection using new managerial productivity criteria. What may be deemed ‘effective policing’ is thus contingent on the means and criteria that the software uses to identify risk. Two approaches have been identified. The first measures risk according to economics, calculating crime as a return on public investment in policing; the second integrates with political choices concerning public action, aimed at enhancing community trust and access. Viewed in this way, Benbouzid (2019: 7, 11) notes that prediction is the vehicle whereby police action is commoditised, a tool used to increase productivity and efficiency. In the South African context, it may be more beneficial to view technology as a tool to monitor the productivity of the police or to assist in how best to use police resources as opposed to a prophetic tool for crime prevention. Indeed, technology could be beneficial for resolving capacity issues as highlighted by the findings of the Khayelitsha Commission. Here the ratio of police to population and the workloads of detectives operating within Khayelitsha were disproportionately high compared to the

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national average. The commission’s recommendations included revision of SAPS systems used for determining human resource requirements and allocation, and the monitoring and oversight to ensure inefficiencies are eradicated (Western Cape Government 2014). Unfortunately, the misconception that predictive policing is a pre-crime tool instead of a risk management tool has likely assisted in magnifying the inequality generated through their algorithmic-based social and spatial targeting. Furthermore, this misconception may fail to conceptualise the psychological effect on police members who enter communities where the data indicate they are to expect a crime to take place (Benbouzid 2019: 5). This is discussed in more detail in the next section in relation to the use of surveillance technologies.

Surveillance in policing The adoption of predictive policing has occurred in parallel with a shift in how criminal justice is treated. Antiterrorism legislation brought on by 9/11 enabled the US government to deploy technologies ordinarily reserved for national security on its population (Duncan 2018). Mantello (2019) discusses how this represented a blurring of the line between law enforcement and military action, administered through the rapid rise in state surveillance capabilities. In South Africa, both Cape Town and Johannesburg use ‘smart’ CCTV technology, including facial recognition technologies, to better monitor and police crime (Stone 2020). The contrasting approaches that precincts have taken regarding the use of surveillance technology arguably highlight the increasingly unequal bifurcation of South African society. In Cape Town, surveillance is used in high-crime areas, whereas in Johannesburg the technology is used in heavily policed and predominantly white affluent communities. Both approaches further entrench the country’s racially charged discriminatory divide by ‘[enforcing] stratification of society along racial and classist lines

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that deepen, rather than address, the inequalities of South Africa’s past’ (Adams 2020: 445). As far as crime prevention is concerned, evidence suggests that increased surveillance only serves to displace crime to other areas (Duncan 2018). With regard to the protection of human rights, the use of such technologies also raises concerns about privacy and freedom of movement. Through profiling, surveillance technology may unwittingly be trained to identify certain categories of people as criminal based on socially ascribed markers, including race, which may justify further incursions into the privacy of the person and increased scrutiny of movement. Surveillance enables crime prevention to shift to pre-crime analysis – monitoring, disrupting and coercing targeted populations for threats they may pose and not always the threats they do pose (Mantello 2019). This raises further questions as to the effect surveillance may have on the presumption of innocence as well as the right not to be forced to give evidence that may be used against oneself, as set out under Section 35 of the Constitution. Already, no warrants are necessary to place suspected individuals under invasive surveillance and arrests are allowed ‘through speculative and imaginative frameworks that pre-construct crimes … in order to pre-empt their “alleged” eventuality’ (Mantello 2019: 4). A recent example of this in South Africa was the arrest of a man for, among other things, incitement to commit public violence after posting an inappropriate social media post (Mlamla 2020). Despite the government’s commitment to transparency, those in control of the data have immense power in their ability to restrict what is disclosed to the public. As noted above, Paia and Popia both enable the government and corporations to protect certain types of information from disclosure. Furthermore, the constitutional safeguards of the presumption of innocence and the right to remain silent may be violated where the individual in question is not aware of what information and data have been gathered on their movements and interactions by intelligence

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officers (Milaj & Bonnici 2014). This asymmetry of information arguably leads to the arrestee having an unfair burden of proof thrust upon them as, in the earliest stages of arrest, they will have to work against automated predictive systems that have already presumed their guilt, raising admissibility concerns relating to evidence obtained in this manner (Milaj & Bonnici 2014; Duncan 2018). Such a shift in burden has implications for a fair trial, and is detrimental to the administration of justice, equal treatment before the law and the inalienable right to dignity. That the use of surveillance technologies may have serious implications for human rights has been central to the call to ban the use of facial recognition technologies the world over. Indeed, in terms of discrimination, the facial recognition technologies of three major technology companies were shown to be least accurate in identifying women of colour (and most accurate in identifying white males) (APC 2019a; Boulamwini & Gebru 2018). Controversially, when algorithmic facial identification fails, cases exist where artist sketches, celebrity lookalikes and graphically altered faces are used to trace subjects (Garvie 2019). In South Africa, the use of forensic facial comparison, routinely used in judiciary systems, is a sought-after skill that requires high-quality images to lend credibility to the practice. As of 2018, there was little scientific validation for the practice, yet images are routinely used as supporting evidence in convictions (in rare cases even securing conviction) on forensic facial comparison alone. The practice has no universal standards in training, assessment or ethics, and the rise of the use of (and dependence on) CCTV presents a risk of increased false positives and negatives (Steyn et al. 2018). Furthermore, subtle differences such as the placement and shape of eyes within different population groups may require different standards of recognition for such groups, arguably reaffirming arbitrary racial classifications (Dorfling et al. 2018). Where technologies are trained on databases of white faces, they will inherently be biased against identifying white faces – with potentially discriminatory results.

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Case Study 2 Policing technologies and human rights – International examples In Japan, marginalised Muslim communities were subject to blanket surveillance, with extensive personal details and movements captured. When this targeted religious/ ethnic monitoring was challenged in the Japanese courts as prejudicial, discriminatory and a violation of the right to privacy, the legality of surveillance was dismissed. Intelligence gathering activities were deemed ‘necessary and inevitable’ (Mantello 2019). In Australia, the New South Wales Bar Association warned that its government ‘is expanding the pre-emptive and discretionary powers of police in order to create a rival criminal justice system based on intuition, rumours, suspicion, and prejudice’ in response to legislation allowing conviction based on mere association, justified under the banner of counterterrorism and anti-organised crime (Mantello 2019). In Hong Kong, the authorities used ‘smart’ CCTV cameras and social media to identify and track pro-democracy protestors during the 2019 protests. In response, protestors used face masks, helmets and reflective goggles to avoid identification and counteract police suppression (Campbell 2019). The rights to protest, freedom of expression and movement were strongly repressed through regulation. The Hong Kong government declared emergency powers to ban the use of masks to ensure that the AI facial recognition systems could work (APC 2019b). In an extreme form, China – under the guise of battling separatism, terrorism and extremism – is using some of the most sophisticated and integrative surveillance technology

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on its population. Through surveillance tactics, the Chinese government has placed an estimated one million people (mostly from Muslim ethnic groups) into ‘re-education centres’. The Chinese police can identify and act on suspicious behaviour using smartphone applications, flagging suspicious individuals who leave their house through the wrong door or choose to grow a beard for interrogation. Recent developments have seen CCTV cameras installed outside, and even within, the homes of individuals whom the Chinese government identifies as suspicious (Gan 2020). Moreover, the social credit system (an integration of government surveillance and the individual’s digital devices) details an innovative solution to control in China. Compliance is rewarded while non-compliance can result in increased monitoring, restricted movement and even detention (Campbell 2019). All the technologies underpinning the social credit system are prevalent in South Africa, in a latent or underdeveloped form. Critical safeguards must, therefore, be put in place to prevent unjustified abuse of rights.

Digital justice The increasing driver for the digitisation of the courtroom under the 4IR extends from using video links as a means for defendants to appear in court to using algorithms to determine bail conditions, convictions and sentencing. Justifications for increased digitisation centre on expediting court processes and procedures. Unlike systems related to predictive policing and surveillance, South Africa is still to adopt the technologies that will be used in future digital courtrooms. That being said, these technologies are being trialled. In 2018/9 the Office of the Chief Justice piloted an electronic filing system in the Gauteng courts (called CaseLines) to assist in the efficient handling of cases (South African Judiciary 2019). Furthermore, the COVID-19 pandemic necessitated the adoption of this system in all the High

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Courts as well as the use of virtual or remote court operations to prevent the spread of the disease (LexisNexis 2020). This has meant accelerated use of video conferencing technology, the acceptance of remote consultations as fair and the introduction of Wi-Fi connectivity in courtrooms. However, in a similar manner as the previously discussed technologies, the digital courtroom poses a number of challenges to equal treatment before and by the law, and in many cases it is still grappling with how best to introduce 3IR technologies. The UK in particular has made use of digital court modernisation through the use of video links. Their use value includes reducing the cost of transport to attend court, less paperwork and simpler logistical planning for court appearances. All of these benefits fit well into the objects of the NDP, WPP and WPSS. However, the use of advanced 4IR technologies in the criminal justice system must be balanced against the protection of rights, including the rights to fairness, impartiality and access to justice (legal representation, and just and equitable public participation). The viability of trial by video link in South Africa also requires that a number of factors be considered, including questions of access, the need for standardised video-link procedures, understanding the ways in which vulnerable defendants are treated through in-camera proceedings and what to do in situations where the technology fails. In addition, there are more nuanced procedures of the court process that digital courts might not adequately capture or contextualise. These include assessment of witness and defendant demeanour through screens, which may differ from real life. For example, how are non-verbal cues assessed or do they become redundant when a judge only has access to a face on a screen? The positioning of the camera and the types of shots used in the trial may make the person entrusted with filming the trial an important part of the mediation process. Incorrect placement or emphasis of people on screens may create a false sense of alignment to a particular set of persons. Furthermore, remote legal advice may reshape the trust relationship between lawyer and client – the jury is still out on whether this is

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for better or worse (Donoghue 2017). Similar reasoning may apply to witness testimony and cross-examination. In South Africa, in-camera proceedings for children and vulnerable persons can be used – these trial methods and their implication for rights should be studied in detail before similar processes are used in the name of efficiency. Such technologies could also serve to assist an accused or witness who, through avoidance of the trauma of a live hearing or pre-recorded evidence, may be better composed. This could affect the court’s ability to interpret evidence deduced in this manner. Studies have indicated that emotional responses while giving evidence are perceived as more credible, which could place greater emphasis and reliance on the technologies used in algorithmic decision-making (2017: 1014). The common assumption behind the use of algorithms in decisionmaking is that their data-driven nature makes them efficient, neutral and objective. On the surface, this would seem beneficial for securing equality, at least of process. Such an argument is strengthened on the back of the argument that the algorithm, by removing the presence of human beings in decision-making, administers cost-effective justice without inherent human biases. If true, this would be hugely beneficial as a tool for South Africa’s policy framework in supporting data analytics and algorithms to inform decisions from pre-trial bail right through to post-trial sentencing. However, automated systems such as Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) have highlighted that potential bias and discrimination can still be embedded in algorithmic data sources used for criminal justice purposes, with critical effect (Lui, Lin & Chen 2019). Algorithmic decision-making therefore potentially affects due process in three ways: (i) generalised historical information may not be an accurate reflection of the individual, (ii) the individual’s right to an individualised sentence is analysed as part of broader group data, and (iii) there may be improper use of race/gender-based assessments in determining sentences (Lui, Lin & Chen 2019). For example, in a case in the US, an appeal against a judge’s decision

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informed by COMPAS gave rise to possible flaws in entrusting the court process to AI. The case gave credence to studies that show the tendency to over-trust computer-generated numbers. It follows that the influence which algorithms may have on shaping judges’ predetermined views should not be disregarded (Lui, Lin & Chen 2019). Furthermore, fact pattern analysis tools suggest that, over time, judges may rely on the same sets of cases for the same matters, making their judgments predictable. Shrewd businesses, seeking to take advantage of this, have even designed algorithms that carefully scrutinise a judge’s past decision-making, effectively letting a party to a case into the mind of the judge.9 Indeed, AI comes with an assumption of validity that has not necessarily been corroborated by evidence. And so, while algorithms may be good at calculating and recognising patterns within datasets, they are not particularly adept at assessing social circumstances – something that law, as a social science, inherently requires of them (Lui, Lin & Chen 2019). As the use of such technologies by the government occurs in conjunction with a private company that develops the technology, in South Africa challenges to algorithmic decision-making may be hampered by the provisions of Paia and Popia that protect commercial interest as a trade secret. This is particularly critical with machine and deep learning, which is increasingly used globally to outsource legal reasoning entirely to an AI system, and where in many instances even the developers cannot adequately explain how a decision is arrived at. If the inferential reasoning for sentencing cannot be explained and a trade secret can be used as a means to prohibit the assessment of accuracy, an argument for arbitrariness in the judicial process may arise. Indeed, without the means to investigate and verify information, a defendant is arguably deprived of due process and equal protection before the law (Lui, Lin & Chen 2019). The danger of this perpetuating inequality before the law by enhancing hidden biases, errors and improper designs of these systems must be guarded against, with proper procedural safeguards and guidelines.

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Conclusion Research indicates that, if not carefully controlled with meaningful measures of accountability and civilian oversight, the use of advanced 4IR technologies in the criminal justice system may be used to violate not only the right to privacy but also the rights to freedom of movement and non-discrimination. More critically, the use of surveillance, tracking and pattern recognition technologies may unfairly criminalise innocent people through association, often along gendered, spatial and racial lines of discrimination. To understand the human rights implications of algorithmic technologies used by law enforcement officials, a human rights impact assessment should be undertaken prior to, during and after the rollout of new technologies. In addition, there is a need to revisit the provisions of Popia in order to provide for the necessary safeguards for processing personal data by public entities, including with respect to ADM.

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Bias, discrimination and the digital divide

As noted in the first chapter of this book, while there are potential benefits to the 4IR, it must be recognised that the 4IR – if not regulated and governed in a fair, equitable and transformative way – will reproduce old inequalities or even produce new ones. Indeed, South Africa remains one of the most unequal countries in the world, with the Gini coefficient for income at 0.68 and the Gini coefficient for wealth at 0.95. The determinants of poverty and inequality in South Africa remain broadly along the lines of race, gender, education and geographic location – a fact that will likely be exacerbated by the onset of the 4IR if not governed to promote access, use and uptake by all segments of society. Following a broad overview of the key regulatory frameworks pertaining to issues of equality in the context of the 4IR, two key concerns are discussed in this chapter: (i) the digital divide as it pertains to South Africa (ii) and the potential for bias and discrimination showing up in AI algorithmic systems worldwide and what their effects are, and might be, in South Africa.

National regulatory framework on equality In national, regional and international law, the sanctity and prominence afforded to the right to equality are profound. At present, at least twenty-two international and regional human rights instruments enshrine the right to equality, the majority of which have been ratified by South Africa or made into law. These instruments call for the establishment of de jure and de facto equality, without discrimination (including based on race, colour, sex, language, and national or social origin). In South Africa, the right to equality is protected under Section 9 of the Constitution and is a key founding principle of South Africa’s democratic order. Briefly,

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Section 9 provides that everyone is equal before the law and has the right to equal protection and benefit of the law. This includes full and equal enjoyment of all the rights and freedoms contained in the Bill of Rights. To achieve this, the state may implement legislative and other measures to protect or advance persons or categories of persons disadvantaged by unfair discrimination. Sections 9(3) and (4) prohibit the state or persons from discriminating directly or indirectly against other persons based on certain grounds, unless such discrimination can be shown to be fair. As this chapter will show, the widening digital divide and potential bias and discrimination – particularly on the grounds listed in Section 9(3) – may place the right to equality under immense strain. The right to equality is further expanded under the Promotion of Equality and Prevention of Unfair Discrimination Act (No. 4 of 2000) (Pepuda), which designates magistrates’ courts to act as equality courts to hear matters pertaining to disputes around the Act. Pepuda further provides for certain roles for the SAHRC, including requesting any person or body to provide information relating to the achievement of equality on ‘legislative and executive action and compliance with legislation, codes of practice and programmes’ (Section 25[2]). The SAHRC can also institute proceedings in terms of or under Section 20(1)(f) of Pepuda in the equality court, which it has a long history of doing. Pepuda was promulgated to give further effect to the right to equality as set out in Section 9 of the Constitution. The Act sets out the meaning of unfair discrimination and the prohibited grounds for discrimination, including harassment and hate speech. The law is in line with South Africa’s obligations under international treaty law, including the UN Convention on the Elimination of All Forms of Discrimination Against Women and the UN International Convention on the Elimination of All Forms of Racial Discrimination. The Act further provides for the designation of magistrates’ courts as ‘equality courts’ to hear matters pertaining to unfair discrimination in terms of the Act.

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Digital divide The digital divide refers to the growing gap between those with access to the internet and digital resources and those without. Factors that hinder access include lack of infrastructure, for example lack of internet access in rural areas, and steep prices of access and data – South Africa has one of the highest rates in the world (Plantinga, Adams & Parker 2019) – and lack of understanding how to use digital technologies (Mensah 2019). More critically, studies have shown that there is an increasing gendered digital divide in Africa, where men have increasingly more opportunities to use and access digital technologies while women have gradually less: ‘The proportion of women using the internet is a quarter less than the proportion of men using the internet in Africa’ (AfriSIG 2019). In explaining the barriers to access the internet and digital technologies for women, it was noted that barriers contributing to the gap on the continent include unaffordable access, threats to access and use, low digital literacy and confidence, and the lack of relevant content, applications and services. Globally, women are in the majority of the world’s poor, but the African woman is disproportionately more affected by poverty. Eighty percent of the women in Africa live in the rural areas where they have less access to such basic needs as health care, education and other public facilities or services. Working women on the continent are engaged in unpaid care work, lack access to decent work or are paid lower wages.

Indeed, the International Telecommunication Union (ITU, an agency of the UN responsible for issues of global communications and information) has recognised the central role played by women in developing and uplifting their families and communities when they have access to the internet (ITU 2018). However, this requires intentional policies seeking to address issues of inequitable access head-on, and to take into account the structural factors that render women – or other marginalised or vulnerable groups – in positions without access to digital and online technologies. For example, gender

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issues are markedly different when assessing the ability to use the internet in a peri-urban or rural setting. According to a report compiled by After Access in 2018, time to use the internet and time spent online were seen as a challenge for women in family settings. Apart from family responsibilities, women reported that their partners refused to allow them to use social media websites because these were seen as a threat to relationships. Although the concern is mutual, power relations between men and women mean that the impact on internet usage is felt more by women, with women often fearing their partner’s reprisal for such usage. Furthermore, while men viewed unwarranted online attention as irritations, women have even had to resort to changing numbers after they received sexual advances from a stranger online. The availability of electricity and limited opportunities to charge one’s phone are also seen as barriers to usage (After Access 2018: 20–26). In South Africa, the digital divide is clearly evident. The following graphs (Figures 4.1–4.3) from Statistics South Africa’s (StatsSA) Inequality Trends in South Africa report of 2019 are demonstrative. Figure 4.1  Proportion of households with access to the internet by population group of household head (2009–17)

Source: StatsSA (2019)

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Figure 4.2  Proportion of households with access to the internet by settlement type (2009–17)

Source: StatsSA (2019)

Figure 4.1 shows that while 62 per cent of South African households had access to the internet, access was 58.1 per cent for the black population and over 90 per cent for the white population. This is echoed in the graph below, which shows access to the internet per dwelling type, with the majority of rural dwellers in South Africa being black. Figure 4.2 shows that the majority of internet access was in urban areas, with only 42.9 per cent of rural dwellers having access. This points further to the need for targeted policies to improve internet access and infrastructure in rural parts of the country. Somewhat in contrast with the trend set out in the African School on Internet Governance’s (AfrSIG) 2019 report of a growing digital gender divide in Africa, Figure 4.3 shows that the digital gender divide in South Africa appeared to be lessening. That being said, access to the internet for female-headed households in South Africa was below that of male-headed households. Indeed, various factors continued to influence this digital gendered divide. More often than not, female-headed households (especially in the

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Figure 4.3  Proportion of households with access to the internet by sex of household head (2009–17)

Source: StatsSA (2019)

Global South) were still in need of basic necessities such as food, healthcare and sanitation; the education of the girl child was still a hurdle in many countries; and many women in rural areas were still part of agriculture-based societies to the exclusion of digital mechanisms. Until it becomes evident that digital mechanisms can contribute to and alleviate existing challenges for women and empower them, the digital divide will continue to exist and possibly increase. The DCDT’s National Integrated ICT White Paper (DTPS 2016) highlights the significance of overcoming the digital divide, and working towards data justice, within the broader context of national policy, digitisation, inequality and technological change. Notably, these policy provisions are embedded within the language of human rights: Equality and the right of everyone to ‘full enjoyment’ of all opportunities in South Africa underpin all rights and freedoms enshrined in the Constitution. This founding law further

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compels Government to proactively intervene to address any inequality. In line with this constitutional injunction, this White Paper introduces a range of interventions to ensure that everyone in South Africa, regardless of who they are, where they live or their socio-economic status can improve the quality of their lives through accessing the benefits of participating in the digital society. (2016: 1)

In this context, the White Paper rightly interprets the internet and digital technologies as a key enabler of the realisation of other rights. The White Paper further specifies, ‘all people, regardless of who they are, their social or economic status or where they live, can access communications services and content and can therefore participate actively in society and realise the benefits and opportunities of ICTs’ (2016: 9). The White Paper goes on to specify: If this is to be achieved, both supply (infrastructure, networks and resources) and demand issues (including facilitating e-astuteness, accessibility by persons with disabilities and the availability of relevant services and content in all languages) must be addressed. This requires a focus on further extending networks to reach all communities in all parts of the country and matching this with investment in, for example, training, education and the development of relevant content, applications and services in all languages on all platforms and for all devices. This dual emphasis will necessitate partnerships with all stakeholders in the sector to realise the goals set in the United Nations ‘2030 Agenda for Sustainable Development’ and ensure that ICTs ‘accelerate human progress, bridge the digital divide and develop knowledge societies’ while facilitating achievement of all the sustainable development goals agreed on. (2016: 9–10)

Thus, key responses to the digital divide must include developing ICT upskilling programmes that take into account the lived realities and current levels of understanding of different groups in South Africa; using information technologies to advance rights for people with disabilities (see the case study that follows) and older

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persons, or those with less mobility; and using digital technologies in transparent and accountable ways to make government services more accessible and efficiently administered. If achieved, this will – ultimately – contribute to the realisation of the SDGs, as discussed in Chapter 1 of this book. It shows how critical the promotion of the right to equality is to the development of the country. The following case study demonstrates how digital technologies can be used to promote equality.

Case Study 3 Self-driving cars and people with disabilities One of the critical challenges associated with the development of advanced technologies is to ensure that they are used for the good of all and not to further drive inequalities. Indeed, it is rather less discussed how the benefits of advanced technological developments can assist persons with disabilities, in line with the general principles of the Convention on the Rights of Persons with Disabilities, which was ratified by South Africa in November 2007: Article 3 General Principles The principles of the present Convention shall be: (a) Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons; (b) Non-discrimination; (c) Full and effective participation and inclusion in society; (d) Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;

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(e) Equality of opportunity; (f) Accessibility.

In particular, it is recognised that advanced technologies, including those associated with the 4IR, can be of benefit to creating an accessible environment for persons with disabilities. At the 2016 Conference of States Parties to the Convention on the Rights of Persons with Disabilities, under the theme ‘Enhancing the accessibility of information and technology and inclusive development’, it was noted that for the world’s 1 billion persons worldwide living with a disability, the widespread barriers or lack of accessibility in the environments related to information and communications and relevant technologies and services have been a major challenge for the enjoyment of universal human rights and for full participation in society and development on an equal basis with others. (UNCRPD 2016: Para 2)

And further that owing to inaccessibility or lack of accessibility to information and information-related technologies, facilities and services, persons with disabilities in many parts of the world have been experiencing difficulties, disadvantages and exclusion in social, economic and political life to a great extent. (2016: Para 11)

In response, the conference delegates pledged to improve the accessibility of ICTs and enhance inclusive development in the following ways: • Governments and other stakeholders should recognise accessibility as essential to all processes of sustainable, equitable and inclusive development and of ICT development policy and programmes.

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• Governments should support the development of accessible ICTs (including mobile applications, government websites, public kiosks and automated teller machines) and accessible ICT services in their urban and rural development plans. • Governments should promote research and mainstreaming accessible ICTs by including accessibility requirements in public procurement exercises for ICT products and services used by public organisations or their customers or staff. • Many national telecommunications authorities have universal service goals that recognise affordability and access to networks as a right; consideration should be accorded urgently to accessibility as another universal service goal. (Para 17) One of the most advanced new technologies being developed are self-driving or driverless cars. The development of driverless cars has generated massive ethical debates about how a car should be programmed to respond in critical situations where lives are at risk, as well as who should be held accountable if a driverless car causes a death on the road (Roff 2018). However, for others, such advanced technologies should primarily be available to those who would not otherwise enjoy a fully accessible life. Bradshaw-Martin and Easton (2014) note that driverless cars should support those living with disabilities to live an independent life, and have full enjoyment of their right to freedom of movement. More broadly, they write that having the use of such technologies would enable the ability to participate and engage in social and political life (BradshawMartin & Easton 2014). Yet, Easton (2014) warns that such technologies must then be designed with the particular user (that is, person with disabilities) in mind, and the necessary safeguards and precautions should be in place.

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Bias and discrimination in AI systems There is increasing concern in international discourse on AI that its social implications, and even design, are both gendered and racialised (Noble 2018; Benjamin 2019; Adams & Loideain 2019). Indeed, Adams and Loideain (2019) demonstrate the critical tendency of big technology companies to gender AI technologies used in one’s personal life or in the home – such as Siri (Apple), Cortana (Microsoft) and Alexa (Amazon) – as female. With female names, characters and voices, these AI assistants appropriate stereotypes of women in their design. In addition to designing technologies for the future that embed historical gender stereotypes, the fields of science, technology, engineering and mathematics (Stem) has traditionally been seen as male sciences which have left women out in training and jobs (Makarova, Aeschlimann & Herzog 2019). Indeed, the majority of positions in the AI industry globally are occupied by men and the majority of computer science graduates are male (Adams 2020). In addition, in recent years, there have been a number of high-profile examples of algorithmic systems showing serious bias against women (Craido-Perez 2019). In fact, algorithms are trained on historical data (as will be discussed further below) and thus reproduce the biases of the past, projecting them into the future as the algorithm processes new data according to past trends (Adams 2020). This, coupled with the digital gender divide and the potentially worse impact for women in terms of job losses to automation, requires that specific policies and programmes be developed to promote women’s empowerment and gender equality in the 4IR. Furthermore, there is a need to promote diversity in AI design teams, and further efforts must be made to encourage women and girls in Stem and support their transition into Stem careers. AI is part of a broader field of algorithmic or automated decisionmaking (as discussed in the previous chapter), where computing

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devices collect and analyse data to support or make decisions on behalf of human beings. McGregor, Murray and Ng (2019: 309) describe the workings and functions of algorithmic systems as follows: Advances in computational power mean that modern algorithms can execute complex tasks beyond human capability and speed, self-learn to improve performance, and conduct sophisticated analysis to predict likely future outcomes. Modern algorithms are fuelled by easily accessible large and/or diverse datasets that can be aggregated and processed efficiently (often labelled ‘big data’). These algorithms exist in a complex, interdependent, global data ecosystem whereby algorithmically produced outputs can be used as new input data for other algorithmic processes.

The main reason for automating decision-making is that it is thought to minimise human error and operate more efficiently (usually on a much larger and quicker scale) than human beings. However, this drive for efficiency and for eliminating human contingency has resulted in biases that cannot be questioned, precisely because they have been produced by a supposedly neutral and objective machine. In addition, the decision-making capabilities of algorithmic machines tend to occur in a ‘black box’, meaning that the reasons for these decisions (the information/ data upon which these decisions are made) are not transparent to either society or the programmers of the algorithm (Pasquale 2015). This raises a multitude of concerns about both machine transparency and accountability, as well as how – when biased decisions occur – this can be remedied and corrected. In addition, as noted above, biases are often produced because algorithms are trained on historical data. However, as explained by Selbst et al. (2019), there are a number of ways in which bias can occur, which can lead to unfair discrimination.

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Figure 4.4  Bias in AI systems

The portability trap: Failure to understand how repurposing algorithmic solutions designed for one social context may be misleading, inaccurate or otherwise harmful when applied to a different context.

The framing trap: Failure to model the entire system over which a social criterion, such as fairness, will be enforced.

BIAS IN The formalism trap: Failure to account for the full meaning of social concepts such as fairness, which can be procedural, contextual and/or contestable, and cannot be resolved through mathematical formalisms.

AI SYSTEMS

The bias trap: There are a number of ways in which biases can occur in AI systems. Bias is problematic when it leads to unfair discrimination, particularly based on gender, race, disability or another protected ground under Section 9 of the Constitution.

The solutionism trap: Failure to recognise the possibility that the best solution to a problem may not involve technology.

The ripple effect trap: Failure to understand how the insertion of technology into an existing social system changes the behaviours and embedded values of the pre-existing system.

Source: Selbst et al. (2019)

One of the ways in which AI researchers and programmers have sought to overcome bias is by developing synthetic datasets. Synthetic datasets are produced from artificial data that are deliberately created to be representative and neutral. Other strategies for addressing bias in AI systems include counterfactual explanations, in which different data

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are inputted into the algorithmic system in an effort to decipher which data point (age, postal code, gender, etc.) produced the discriminatory result (Robbins 2019; Watcher, Mittelstadt & Russel 2017). Another key step is instituting a practice of conducting human rights-led data impact assessments, whereby bodies (public or private) using advanced algorithmic processing on large segments of the population seek to assess the impact of their technologies on society, particularly in terms of discrimination. Such impact assessments should be conducted both ex ante and ex post the rollout of new technologies (discussed further in Chapter 7 of this book).

Conclusion The extent to which the 4IR may deepen or bridge social inequalities will depend largely on the way in which such technologies are regulated. The serious potentialities of AI-based systems to discriminate based on the prohibited grounds of discrimination outlined in Pepuda require direct action from policy-makers and, critically, those designing and deploying such technologies. Perhaps more critically, the 4IR is set to deepen existing inequalities in access to and enjoyment of rights more broadly. Indeed, many South Africans still do not enjoy basic rights and the focus on the digital rights of the 4IR draws attention away from this critical responsibility of the state. In terms of bridging the gendered digital divide, women and girls (particularly in underserviced and remote communities) must be appropriately capacitated with the education and skills benefits of new technologies. In the African context, it is critical that young women are empowered in a manner that develops their technological capabilities (Kanza 2016). Specific programmes and policies must be developed to promote the furtherance of gender equality and women’s empowerment in the context of the 4IR, in line with the commitments set out at the 55th Session of the UN Commission for the Status of Women under the theme ‘Access and participation of women and girls in education, training and science and technology’, including the

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promotion of women’s equal access to full employment and decent work. Of particular relevance are the concluding commitments of the 55th Session that states parties should encourage the integration of a gender perspective … throughout all stages of education and continuous learning, and the use of gender-based analysis and gender impact assessments in research and development in science and technology, and promote a userdriven approach to technology development in order to increase the relevance and usefulness of advancements in science and technology for both women and men. (UN Women 2011: 10)

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5

Internet rights and responsibilities: Freedom of expression and hate speech

The internet and other communication technologies and platforms emerged as part of the 3IR. In principle, the same rights and freedoms, responsibilities and limitations apply in daily life and on the internet. For those who enjoy access, the internet provides ‘relatively inexpensive, accessible, easy-entry ways of sharing ideas and information’ (FXI 2014: 12). Internet freedom is the extent to which users can exchange ideas and share information within permissible limits defined by law. In authoritarian countries where sources of information are restricted through censorship of traditional media such as newspapers, radio and television, the internet can become an important alternative source of information. Moreover, as the Freedom of Expression Institute (FXI 2014: 12) notes, ‘the impact of internet use, particularly through social networks, has proved to be an effective means through which the public can hold those in authority to account’. On the African continent, access to the internet has grown steadily over the years and has inevitably become an integral part of the lives of the larger population. Internet access fundamentally affects social, economic and human development in Africa – as elsewhere. Access means more information, increased communication, the exercise of freedom of expression, accessibility and relative anonymity. However, this has also led to an increase in hate speech, fear mongering, the spread of fake news, cyberbullying and privacy violations. This chapter explores the internet – as a key foundational component of the 4IR – and its relationship to human rights. A central right in this regard is the right to freedom of expression, which is explored in detail in this chapter in relation to its new modalities in the digital online age, particularly in relation to hate speech on social media platforms. In particular, this chapter details and discusses applicable

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provisions set out in the newly adopted Declaration of Principles on Freedom of Expression and Access to Information in Africa in relation to the digital age.

Regulation of the internet Internationally, there have been calls to implement resolutions of several international and regional bodies, and to advocate for improved regulations governing the use and misuse of the internet. This is not to advocate or justify censorship; instead, it is to create boundaries regarding misusing the internet to the detriment of the rights of others or of democracy. Management of the internet through regulations and policies is an important aspect of ensuring the delicate balance between internet rights and responsibilities. One such document that addresses the surge of the digital age in Africa is the African Declaration on Internet Rights and Freedoms (Adirf), developed by a consortium of African civil society actors. This document provides useful principles and guidelines for the formulation of internet policies for African governments. It builds on principles already established in prior declarations regarding the protection of human rights online. According to Adirf, 13 principles should guide internet usage in a democratic society. These are: 1) openness; 2) access and affordability; 3) freedom of expression; 4) right to information; 5) freedom of assembly and association; 6) cultural and linguistic diversity; 7) right to development and access to knowledge; 8) privacy and personal data protection; 9) security, stability and resilience of the internet; 10) marginalised groups and groups at risk;

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11) right to due process; 12) democratic multistakeholder internet governance; and 13) gender equality. While countries have a positive obligation to protect the people living in their territories, access to and affordability of the internet are tools to foster communication, democracy, expression, equality, transparency, universality and so on. Nations are also encouraged to develop guidelines and practices that protect the expression of those who shape public debates, especially journalists, as noted below in respect of the Declaration of Principles on Freedom of Expression and Access to Information in Africa.

Freedom of expression Freedom of expression (a foundational right for democratic governance) is enshrined in international human rights instruments, including Article 19 of the Universal Declaration of Human Rights, 1948 and Article 19 of the ICCPR: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Section 16 of the Constitution guarantees the right to freedom of expression, which in turn guarantees everyone the right to freedom of the press and other media, to receive or impart information or ideas, of artistic creativity, and of academic and scientific research. These freedoms do not extend to expression that might constitute propaganda for war; incitement of imminent violence; or advocacy of hatred based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. Section 16 guarantees the right to freedom of expression in broad and generous terms, and constrains the ability of any government to

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prohibit or censor forms of expression. Nevertheless, contestation continues about the ‘contours of free expression and about what kinds of expression are worthy of protection’ (De Vos 2017: 362). Moreover, Section 16 is unique among the civil and political rights enshrined in the Bill of Rights in that it contains an express exclusionary clause to be applied in addition to the generally applicable limitations clause set out in Section 36. The exclusion in Section 16(2) can be attributed to South Africa’s history of apartheid, which was based on discrimination bolstered by hate speech and harassment. The framers of the Constitution were aware of this history and considered it prudent and necessary expressly to balance freedom of expression with responsibility.

Declaration of Principles on Freedom of Expression and Access to Information in Africa The Declaration of Principles on Freedom of Expression and Access to Information in Africa was adopted by the ACHPR in November 2019.10 Its adoption was a significant development, as it contains good practice standards with detailed provisions that help to clarify the significance of these two rights and freedoms in relation to the internet, and provides detailed practical guidance regarding their scope and permissible limitations. The declaration is a soft-law instrument that elaborates on the provisions of Article 9 of the ACHPR, to which South Africa is a party, having ratified the charter in 1996. The declaration was prepared pursuant to Article 45(1) of the charter which requires the African Commission on Human and Peoples’ Rights to promote human and peoples’ rights, among others, by formulating principles and rules to help resolve legal problems relating to human and peoples’ rights and fundamental freedoms, and on which African states may base their legislation. The declaration provides a wide range of good practice standards and innovative guidance of relevance to many of the weaknesses and gaps identified in South African law and policy relating to access to information, privacy and freedom of expression in the digital age.

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Part I of the declaration sets out several general principles. Freedom of expression is broadly conceived as indispensable for individual human development, to enable the exercise of other rights (civil, political and socioeconomic) and for sustaining open, democratic societies. In addition, Principle 5 emphasises that there should be no distinction between the exercise of the rights to freedom of expression and access to information online and offline: ‘The exercise of the rights to freedom of expression and access to information shall be protected from interference both online and offline.’ This principle is the focus of substantial elaboration in Part IV of the declaration (discussed further below). Under Principle 9, the justifiable limitations of the rights to freedom of expression and the right of access to information are set out. The provisions of this principle are elaborated in extensive detail, highlighting the necessity of clearly defining and delineating limited ways in which it is permissible to depart from the ideal of freedom in a democratic society. In particular, the provisions include the legal principles of clarity and precision, necessity, proportionality, least restrictive means and a harm test. Thus: • States may only limit the exercise of the rights to freedom of expression and access to information if the limitation (i) is prescribed by law, (ii) serves a legitimate aim, and (iii) is a necessary and proportionate means to achieve the stated aim in a democratic society. • States shall ensure that any law limiting the rights to freedom of expression and access to information (i) is clear, precise, accessible and foreseeable, (ii) is overseen by an independent body in a manner that is not arbitrary or discriminatory, and (iii) effectively safeguards against abuse, including through the provision of a right of appeal to independent and impartial courts. • A limitation shall serve a legitimate aim where the objective of the limitation is (i) to preserve respect for the rights or reputations of others, or (ii) to protect national security, public order or public health.

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• To be necessary and proportionate, the limitation shall (i) originate from a pressing and substantial need that is relevant and sufficient, (ii) have a direct and immediate connection to the expression and disclosure of information, and be the least restrictive means of achieving the stated aim, and (iii) be such that the benefit of protecting the stated interest outweighs the harm to the expression and disclosure of information, including with respect to the sanctions authorised. Given the reality of human fallibility, the declaration acknowledges the need to regulate the media (including online media) but it encourages a collaborative, non-criminal-law-oriented approach to, preferably, self-regulation in a region where authoritarian tendencies remain common and many young democracies are still fragile. In a similar vein, Principle 22 on ‘Criminal measures’ recognises the widespread practice on the continent of using harsh criminal sanctions to suppress critical voices (oftentimes voiced through online platforms), often under the pretext of state security, perceived ‘insult’ and ‘false news’. The principle provides clear guidance on permissible conduct in robust democratic societies, and provides for the decriminalisation of sanctions for prohibited forms of freedom of expression. The subsequent Principle 23 on ‘Prohibited speech’ provides equally clear standards, akin to the exceptions to the right to freedom of expression in Section 16 of the Constitution, for the unacceptable and impermissible exercise of this freedom. Consistent with previous principles in the declaration, the guidance discourages criminalisation of forms of prohibited speech except in ‘the most severe’ instances, requires that context be taken into account and stipulates a harm test with stringent criteria. In this regard, Subprinciple (1) provides that states ‘shall prohibit any speech that advocates for national, racial, religious or other forms of discriminatory hatred which constitutes incitement to discrimination, hostility or violence’ and must take into account certain specific criteria. In terms of Subprinciple (2) these criteria include: • prevailing social and political contexts;

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• status of the speaker in relation to the audience; • existence of a clear intent to incite; • content and form of the speech; • extent of the speech, including its public nature, size of the audience and means of dissemination; and • real likelihood and imminence of harm. Part IV of the declaration sets out principles relating to ‘Freedom of expression and access to information on the internet’. Principle 37 on ‘Access to the internet’ requires generally that states ‘shall facilitate the rights to freedom of expression and access to information online and the means necessary to exercise these rights’. The phrase ‘the means necessary’ can be interpreted as referring to access to the necessary technology infrastructure and reasonably priced data that are essential for enabling the exercise of online rights. Such an interpretation would be consistent with the provisions of Subprinciple (2), which stipulates that states ‘shall recognise that universal, equitable, affordable and meaningful access to the internet is necessary for the realisation of freedom of expression, access to information and the exercise of other human rights’. Subprinciple (4) further recognises the need for special measures to ensure equitable access to the internet. It therefore requires states to ‘take specific measures to ensure that marginalised groups have effective exercise of their rights online’. Subprinciple (5) extends the requirement for these special measures to children, but seeks to establish a balance given their special needs. It therefore requires states to ‘adopt laws, policies and other measures to promote affordable access to the internet for children that equips them with digital literacy skills for online education and safety, protects them from online harm and safeguards their privacy and identity’. The provisions of Principle 37 are aimed at balancing the broad right to internet access with the protection of children and their wellbeing. Succeeding principles seek to strike a similar balance between ensuring online freedom of expression and access to information,

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with appropriate protections from the acknowledged risks, including those arising from the harmful ways in which social media have come to be used. These provisions are of increasing importance given some of the features of the 4IR, which entails a growing dimension of online engagement, learning and education. Of additional relevance is Subprinciple (1) of Principle 38 on ‘Noninterference’, which provides that states ‘shall not interfere with the right of individuals to seek, receive and impart information through any means of communication and digital technologies, through measures such as the removal, blocking or filtering of content, unless such interference is justifiable and compatible with international human rights law and standards’. In addition, in response to a number of recent repressive responses by governments to pro-democracy protests in several countries, Subprinciple (2) clearly stipulates that states ‘shall not engage in or condone any disruption of access to the internet and other digital technologies for segments of the public or an entire population’ (Darch, Adams & Ke 2018). Indeed, in the Joint Declaration on Freedom of Expression and the Internet of 2011, the then Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights Advocate Pansy Tlakula co-declared: Cutting off access to the Internet, or parts of the Internet, for whole populations or segments of the public (shutting down the internet) can never be justified, including on public order or national security grounds. The same applies to slow-downs imposed on the Internet or parts of the Internet. (UN Special Rapporteur on Freedom of Expression & Others 2011a: Para 6b)

Furthermore, Principle 39 on ‘Internet intermediaries’ includes a nondiscrimination clause that [states] shall require that internet intermediaries (e.g. information exchange platforms or data service providers) enable access to all internet traffic equally without discrimination on the basis of the type or origin of content or the means used to transmit content and that internet intermediaries shall not interfere with

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the free flow of information by blocking or giving preference to particular internet traffic.

This provision is intended to prevent, for example, the kind of realtime online censorship or blocking of certain websites that the Chinese government requires of Google. Subprinciple (2) goes further and prohibits states from requiring internet intermediaries to ‘proactively monitor content which they have not authored or otherwise modified’. This provision appears to inhibit states from preventing the posting of, for example, seditious or defamatory content or ‘revenge porn’. However, Subprinciple (3) seeks to introduce a degree of balance by stipulating that states ‘shall require internet intermediaries to ensure that [when] moderating or filtering online content, they mainstream human rights safeguards into their processes’. It is clear from these provisions that reactive moderation and removal of illegal or objectionable content is permissible, but must be transparent and incorporate mechanisms for appeal. Intermediaries must also ‘offer effective remedies where rights violations occur’, whether those violations arise from unreasonable delay or failure to remove legitimately objectionable or illegal content, or from inappropriate and unjustified filtering or removal of content. In line with one of the key objectives of the declaration to provide clear guidance on narrowly defined exceptions to the broad right to freedom of expression, the provisions of Subprinciple (4) of Principle 39 stipulate stringent procedural and substantive criteria for the removal of content, including judicial oversight. Subprinciple (6) contains provisions of particular relevance to freedom of expression on the internet, especially the need for ‘agile’ and ‘anticipatory’ governance (discussed in Chapter 1 of this book). Overall, the provisions of this principle recognise the dynamism of the internet as a digital medium that enables the rapid sharing of information, the development and production of knowledge, and the related sharing of opinions and products. Critically,

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Subprinciple (6) recognises the risk of rights abuses and therefore also provides that states shall ensure that the development, use and application of artificial intelligence, algorithms and other similar technologies by internet intermediaries are compatible with international human rights law and standards, and do not infringe on the rights to freedom of expression, access to information and other human rights.

UN special rapporteur on the promotion and protection of the right to freedom of opinion and expression: Special report on the internet The UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (Special Rapporteur) found, in a special report on the internet, that the internet has become one of the most important vehicles by which individuals exercise their right to freedom of opinion and expression, and it can play an important role to promote human rights, democratic participation, accountability, transparency and economic development. However, as with all technological innovations, the Internet can also be used to cause harm, which has raised concerns among Governments as to whether to regulate content online. (2011a: Paras 78 and 79)

The Special Rapporteur concluded that the ‘general rule’ should be to maintain openness and the free flow of information over the internet, with limitations, which should conform to the criteria established under international human rights law, as the exception (Paras 78 and 79). The standard exceptions to openness are ‘prescription by unambiguous law; pursuance of a legitimate purpose; and respect for the principles of necessity and proportionality’ (Para 81).11 Legitimate grounds for limiting the free flow of expression and information are likewise limited to certain activities that can be criminalised: child pornography; direct and public incitement to

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commit genocide; advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence; and incitement to terrorism. The Special Rapporteur also found that states have a ‘positive obligation to create an enabling environment for all individuals to exercise their right to freedom of opinion and expression’ (Para 80). He therefore recommended that states ‘are obliged to guarantee a free flow of ideas and information and the right to seek and receive as well as to impart information and ideas over the Internet’ (Para 81), subject to the limitations noted above. Furthermore, states should provide ‘full details regarding the necessity and justification for blocking’ (Para 70) a particular website and that the determination of which content should be blocked must be undertaken by a ‘competent [independent] judicial authority or [other] body’ (Para 82). Other key recommendations in the report included ‘enabling individuals to effectively use the content made available via the Internet’, which requires internet literacy skills (Para 85). Special attention should be given to translation into minority and indigenous languages, to ensure fair gender access, as well as widely available affordable broadband access (Paras 85 and 88).

Freedom of expression online As highlighted above, the exercise of freedom of expression on the internet poses significant opportunities and risks for the enjoyment of human rights and the preservation of democracy. As Davis (2016) points out, expanded access or connectivity has unfortunately not entirely led ‘to expanded or more diverse worldviews’, which are important sources of checks and balances in a democratic society. The existing design of the most widespread and influential AI algorithms has meant that ‘the dynamics of social media use can serve to narrow available news sources’ (2016). In addition, controversial or antiestablishment views can be artificially undermined or strengthened ‘by states and other actors willing to use new technologies and

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platforms to restrict speech and harass citizens’ (WEF 2016), thereby unduly manipulating freedom of expression. It will be critical to ensure that 4IR technologies are used to promote diversity and social cohesion, rather than drive polarisation (2016). Section 16(2) of the Constitution clearly acknowledges that certain forms of speech are not worthy of protection. Freedom of expression thus explicitly does not include propaganda for war; incitement of imminent violence; or advocacy of hatred based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. In Islamic Unity Convention v Independent Broadcasting Authority 2002 (4) SA 294, the Constitutional Court explained in its judgment that ‘certain expression does not deserve constitutional protection because, among other things, it has the potential to impinge adversely on the dignity of others and cause harm’. De Vos (2017: 359) points out that this clearly indicates that the possible regulation of the guarantee of freedom of expression protection cannot be based entirely on the idea of ‘content neutrality’ – a key concern for the online exercise of the right to freedom of expression. Thus, ‘certain forms of expression that clearly threaten constitutional values – dignity, equal worth and freedom – is not protected by the Constitution at all’. De Vos (2017:  370) argues that this is even more applicable ‘in the digital age, in which individuals can produce and publish content on the internet’ and in principle ‘have access to vast digital resources on social media platforms and through search engines like Google’. The problem is that so many people are producing content that audiences are bombarded with vast amounts of information ‘which they must collate, sort, filter, and block’ (2017:  370). But collating, sorting, filtering and blocking information are not conducted only by individuals, but also by sorting algorithms deployed by the platform providers (such as Google and Facebook). This means that those who organise, sort, filter and limit access to information wield enormous cultural power – power that is emphasised by ‘the fact that not all actors have equal power to influence the debate’ (2017: 368–369).

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It remains important to protect individuals against the many undesirable limits placed on freedom of expression by the state and private individuals. Thus, the ‘negative’ duty to protect the right to freedom of expression requires continued critical scrutiny of the ways in which actions by the state and private individuals can limit or suppress access to information and ideas, or limit or suppress individuals’ ability to share information and ideas with others. However, the ability of individuals to receive and impart information is ‘also limited in other profound and damaging ways not easily captured by the conceptualisation of free expression as a purely negative right’ (De Vos 2017: 377). De Vos (2017: 377) provides the following example: In the digital age, internet intermediaries have enormous power to decide what kinds of information most people will access. Thus, search engines like Google have the ability to influence the speech environment by skewing search results in profound ways. This might be done for valid reasons, for example, to assist users to access the most credible and relevant information searched for.12 But it could also potentially be done for profoundly problematic reasons, for example to influence the political views and voting choices of users or to steer users towards websites promoting discrimination on various prohibited grounds.

Following from the above quote, the rise and spread of fake news are increasingly a factor of consideration vis-à-vis freedom of expression. Indeed, news that is intentionally false is not a new phenomenon. Satirical news shows have existed for some time and can represent ‘fake [news that] parodies the news at the same time as critiquing it’; however, here the intention is not to mislead the audience. Of concern is the deliberate creation of fake content with ‘the express aim to mislead and shift political or social discourse’ (Wasserman 2020:  6). Often ‘fake news’ can be identified from headlines that function as ‘clickbait’; however, fake news can make its way into the mainstream media, as was the case with South Africa’s largest newspaper, the Sunday Times. Over a two-year period, the newspaper ran a story

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about a supposed South African Revenue Service ‘Rogue Unit’ of corrupt officials that turned out to have been fabrications planted at the newspaper (2020: 8). In South Africa, where news is increasingly politicised, this loss in the credibility of traditional news sources, coupled with the rise of intentionally misleading fake news websites, functions to the detriment of the journalistic profession and may be harmful to the public. To ‘progressively advance the free expression rights of all individuals, the state may have to take positive steps to limit the power of the owners of search engines (as well as social media and news websites) to sway election results or to influence attitudes’ (De Vos 2017: 377). In addition, simple examples of widely accessible technology available on many smartphones include FaceApp or FaceTune. These software programmes enable the user to alter or substitute the appearance of images, or the sound of an audio recording, including in photographs or live video feeds, through the use of a range of filters or add-ons such as cartoon facial expressions and features. This readily accessible technology can be used for harmless entertainment such as changing the hair or eye colour of the subject, or for the development with malicious intent of ‘deep fakes’ aimed at deliberately misrepresenting reality, and can be used to manipulate political or social attitudes. Indeed, in 2019, in what may be the first reported cybercrime of its type, criminals used AI-based software to impersonate a CEO’s voice to effect a fraudulent transfer of US$243 000. According to a Wall Street Journal report, it is believed that commercial-voice generating software was used to create deep fake recordings mimicking the CEO’s voice, which was then used to convince a subordinate to transfer the money to a fictitious Hungarian supplier (Stupp 2019). Going forward, if the use of such technologies becomes widespread in South Africa, it will be necessary to review this practice against the parameters of freedom of expression and ‘artistic creativity’. Indeed, in terms of the internal exclusionary and general limitations clauses, it would be unlawful to edit an audio recording or

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transmission or an image in a manner that has the effect of breaching the limitations set out in Section 16(2): advocacy, incitement or propaganda that promotes hatred, violence and war.

Hate speech In addition to the direct impact on diversity of opinion and thought, and on the preservation of democracy, the exercise of the right to freedom of expression online has been shown to have serious implications for hate speech. Article 20 of the ICCPR states that ‘any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law’. Article 26 goes further by providing that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

In South Africa, hate speech works in tandem with freedom of expression and is prohibited by Pepuda. In Islamic Unity Convention v Independent Broadcasting Authority and Others 2002 (4) SA 294, the Constitutional Court further interpreted hate speech as follows: Section 16(2)(c) is directed at what is commonly referred to as hate speech. What is not protected by the Constitution is expression or speech that amounts to ‘advocacy of hatred’ that is based on one or other of the listed grounds, namely, race, ethnicity, gender or religion and which amounts to ‘incitement to cause harm’. There is no doubt that the state has a particular interest in regulating this type of expression because of the harm it may pose to the constitutionally mandated objective of building the non-racial and

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non-sexist society based on human dignity and the achievement of equality. There is accordingly no bar to the enactment of legislation that prohibits such expression. Any regulation of expression that falls within the categories enumerated in s 16(2) would not be a limitation of the right in s 16. Where the State extends the scope of regulation beyond expression envisaged in s 16(2), it encroaches on the terrain of protected expression and can do so only if such regulation meets the justification criteria in s 36(1) of the Constitution. (Paras 34 and 35)

In addition, one of the purposes of Pepuda is to ‘prevent and prohibit hate speech’ by providing measures to eradicate, educate and provide remedies on matters involving hate speech. Section 10 refers to the prohibition of hate speech. However, the recent landmark case of Qwelane v South African Human Rights Commission and Another 2020 (2) SA 124, which focused on the tension between freedom of expression and hate speech in relation to Pepuda, resulted in a significant change to the definition of hate speech in terms of Section 10. The Supreme Court of Appeal declared Section 10 of Pepuda unconstitutional, which declaration must be confirmed by the Constitutional Court to be of any effect. At the time of writing, confirmation proceedings before the Constitutional Court have been postponed sine die. In considering Section 10 in light of Section 16 of the Constitution, the Supreme Court of Appeal made the point that to accept unreservedly that harm envisaged in s 16 of the Constitution and contemplated in the provisions of s 10(1) of PEPUDA need not necessarily be physical harm, but can be related to psychological impact. However, the impact has to be more than just hurtful in the dictionary sense. What is clear is that s 10, as best as can possibly be discerned, travels far beyond the limitation envisaged by s 16(2)(c) of the Constitution. One must be careful not to stifle the views of those who speak out of genuine conviction and who do not fall within the limitation set by s 16(2)(c) and where there is no justification for such

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limitation in an open and democratic society based on human rights, dignity, equality and freedom. (Para 70)

Based on the above reasoning, it can be deduced that the harm caused by hate speech in the digital space can have a psychological impact and should be subject to the same regulations. The use of hate speech online poses a number of concerns, above and beyond deciphering the parameters of what speech constitutes hate speech. The Prevention and Combating of Hate Crimes and Hate Speech Bill should prove useful in this regard and, more importantly, provide recognisable grounds for identifying and prosecuting such offences. Furthermore, certain actions that might not constitute hate speech could nevertheless still amount to online harassment. In instances of harassing behaviour where one’s rights are infringed, a complainant may rely on the Protection from Harassment Act (No. 17 of 2011) to obtain a protection order. Importantly, electronic communication is expressly recognised as a form of written communication capable of being used for the purposes of harassment. A concern in the digital space is that perpetrators are often not easily identifiable, hiding behind a mask of anonymity. In addition, platform providers (which are in almost all instances internationally domiciled multinationals) have their own rules governing what content can and cannot be taken down. Thus, questions of jurisdiction and network neutrality become critical. Indeed, conduct codes for online behaviour have been largely left to the private organisations administering social media/online accounts, and minimal enforcement has been carried out against those who violate human rights. The equality courts and the SAHRC are mandated to handle matters of hate speech and have dealt with numerous matters relating to hate speech, including where it takes place online. However, there can be uncertainty about how human rights violations that take place online are best processed and remedied. Emphasis must be placed on the fact that the fundamental principles governing human rights,

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as well as the measures put in place to promote and protect rights, do not change because the ‘environment’ changes. The rights and responsibilities that apply in the real world have the same application in the virtual/digital world.

Accessibility, content and internet responsibilities An increasingly popular viewpoint of human rights practitioners is that access to the internet should now be regarded as a basic right that must be afforded to everyone if no one is to be left behind by the 4IR. Of particular concern is the content that is available online and who has access to that content. Questions of content also pertain to ensuring that internet content is available in a range of local languages. With regard to accessibility, this includes taking steps to ensure that the internet is accessible to people with disabilities by, for example, offering transcribed audio content, audio recordings of written content and websites in a range of font sizes. Accessibility, too, relates to the responsibilities associated with internet rights and the content in the digital space. Access to the internet is also significantly constrained by affordability. Although the internet is an enabler of the full enjoyment and realisation of many other rights, it is not a priority for those whose daily struggle is to secure access to water, quality education, sanitation and healthcare, and there is a need to assess priority levels in securing rights. To develop a safer digital space in South Africa, there needs to be a broader awareness of how the internet can be misused and what responsible civic behaviour looks like online. The SAHRC, as an NHRI, can play an important role in promoting education and understanding online rights and responsibilities, and ensuring that these are upheld. William Bird of Media Monitoring Africa (MMA 2019) emphasises the absolute necessity of ‘critical literacy and digital skills’ so that the internet can be used by everyone, including to lift themselves out of poverty and to engage effectively with our

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democracy. Free access to information and a wide range of opinions are fundamental to a healthy democracy, but disinformation poses a ‘clear and present danger’ to all democracies because all rights are mutually interdependent. Social media organisations can engage with NHRIs like the SAHRC to help frame appropriate codes of conduct, policies and terms for online activities from a human rights-based approach and in line with the provisions set out in the Declaration of Principles on Freedom of Expression and Access to Information in Africa (discussed above). Through such engagements, preventative and remediation measures can be ensured in the long term. If NHRIs and the social media sector have a history of substantive collaboration, matters relating to hate speech versus freedom of expression can be handled more effectively and efficiently. It also contributes to a more socially conscious marketing strategy for both organisations, and can foster a significant qualitative difference in how social media users approach online behaviour. Furthermore, while the T&Cs (including those on privacy) that come with accessing content online are an attempt to regulate conduct, these documents can be onerous, legalistic and convoluted. There is no incentive for users to pay heed to these T&Cs, and they tend to suffer from ‘consent fatigue’ unless they become affected personally. If not affected by ‘consent fatigue’, users face the equally problematic issue of the ‘privacy paradox’ – here, particularly in relation to e-commerce and social networking, users regularly participate in online behaviour that routinely compromises their privacy even if their attitude towards the protection of their privacy would indicate otherwise (Barth & De Jong 2017: 1039). Discussions on internet responsibilities in the digital space have included whether there is a responsibility for companies that operate in this space to have T&Cs that are more user-friendly (Zuboff 2018). Samkelo Mokhine of FXI has emphasised the importance of the role of regulatory bodies in ensuring that private companies like Google and Facebook are drawn into meaningful consultations on how best to proactively manage or

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regulate the balance between rights and responsibilities in the digital space. Indeed, there is already proven efficacy of co-regulation of media both locally and around the world. Finally, as is discussed in the following chapter, companies should be required to translate their T&Cs into local languages, and video and audio for the illiterate and differently abled should be made available.

Conclusion The rise of internet technologies, as a central component of the 4IR, raises new questions about the enjoyment of rights online. In particular, as this chapter has shown in detail, the right to freedom of expression is implicated in new ways, and extensive regulatory guidelines have been developed at a regional level to guide states in how to balance rights online. In terms of the state’s provision of affordable and readily accessible internet access and the regulation thereof, the SAHRC – in conjunction with other oversight bodies in South Africa – could be involved in monitoring the state’s progress in realising internet access rights, which include drafting legislation, regulations and policies establishing minimum standards in the provision of free access to the internet. The SAHRC is in a position to ensure collaboration between all the stakeholders in making sure that internet rights, freedoms and responsibilities are sustained.

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Socioeconomic rights in the 4IR: Transparency, accountability and the role of non-state actors

It is well noted that AI has significant implications for the realisation of socioeconomic rights. As this chapter explores, technologies associated with the 4IR can help to advance, for example, medical breakthroughs and remote access to educational resources. However, the hype surrounding the possibilities of new technologies must not detract from the fact that many South Africans still do not enjoy basic rights. Within this context, the right of access to information is a critical right to enable the realisation of socioeconomic rights by promoting the transparent and accountable use of technology. Moreover, this chapter looks at the role of private actors in the use of advanced technologies to support service delivery, and highlights the need to promote accountability and transparency in partnerships and the technological systems designed and used.

Regulatory framework Socioeconomic rights are broadly set out under Sections 24 to 27 and 29 of the Constitution: housing, healthcare, food, water, social security and education. Given the economic implications of the realisation of these rights in South Africa, the Constitution predominantly places an obligation on the state to – at the very least – ensure everyone has access to them. In addition, Section 32 of the Constitution provides for the right of access to information and for legislation to be developed to give effect to this right. Paia was adopted in 2000. This Act gives effect to Section 32 of the Constitution by putting in place legislated channels whereby individuals and groups can request access to information

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held by both public and private bodies. It was one of the first access to information laws globally to provide a right of access to information held by private bodies (Calland 2013). This is qualified insofar as access to information held by a private body must be demonstrated as being necessary for the promotion of the protection of other human rights. The most significant obligations placed upon private bodies by Paia are the development and publication of a manual that assists people in understanding the types of records held by such a body, the ways in which these records can be accessed (Section 51) and the voluntary disclosure of information (Section 52). Paia is one of the only freedom of information laws in the world to extend this right to the private sector, placing obligations on businesses to provide access to information. The advances made by Paia with regard to the extension of obligations to the private sector are echoed in the Model Law on Access to Information in Africa, which was passed by the African Commission on Human and Peoples’ Rights in 2013. In line with Section 32 of the Constitution on the right of access to information, the preamble to Paia states that the purpose of the Act is to • foster a culture of transparency and accountability in public and private bodies by giving effect to the right of access to information; and • actively promote a society in which the people of South Africa have effective access to information to enable them to more fully exercise and protect all their rights. The Act sets out various provisions for accessing information and for the protected categories of information that may or must be withheld from disclosure, for both public and private bodies. The SAHRC will continue to be the oversight body charged with monitoring compliance with the Act, until Popia becomes fully effective and Irsa takes over this statutory role. However, Paia is outdated in several respects and requires various amendments to bring it in line with the transparency and informational needs of the 4IR. In addition, Paia is inconsistent with other principles for access to information

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set out in the African Model Law on Access to Information and the Declaration of Principles on Freedom of Expression and Access to Information. With respect to the need to modernise Paia, it has been noted widely that the following are required: • Paia has to be aligned with the ACHPR’s Model Law on Access to Information and other evolving international standards for access to information. • There have been severe administrative problems regarding compliance with Paia and access to information requests over the past 20 years, which could be addressed through digitisation. • Paia’s enforcement mechanisms need to be strengthened. • Inconsistencies between Paia, Popia and other legislation governing information in South Africa must be resolved. • Proactive disclosure as set out in Sections 15 and 52 of Paia must be made mandatory rather than voluntary. • Paia must be updated to provide for digital record management and online access to information requests. • Paia must provide for data portals, open data standards and e-government. • Universal online access to information should be conceived as a basic right, with measures for realisation. • Paia should provide special access measures for certain groups and for certain types of information, in line with the Protective Disclosures Act (No. 26 of 2000) and Popia. One of the key ways in which Paia requires modernisation is through alignment to new standards regarding transparency and access to information. The Declaration of Principles on Freedom of Expression and Access to Information in Africa, which was adopted by the ACHPR in 2019, stands as the most recent comprehensive regional standard for both the right of access to information and the right to freedom of expression, particularly in relation to their enjoyment in the digital age (as discussed in detail in the previous chapter).

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Part III of the declaration contains principles relating specifically to the ‘Right of Access to Information’. Many of the principles echo standards contained in the South African Constitution, but the principles contain several welcome innovations and detailed elaboration on and clarification of standards, the absence of which have long hindered widespread, simple, quick and cost-effective enjoyment of this right in South Africa. The declaration clarifies the definition of a public body as one that is ‘owned partially or totally, or is controlled or financed directly or indirectly by public funds, or a body that carries out a statutory or public function or a statutory or public service’ (Principle 26[2]). Under Principle 27, the primacy of access to information laws is set out as taking ‘precedence over any other laws that prohibit or restrict the disclosure of information’. The declaration further provides a ‘Principle of Maximum Disclosure’ (28) to promote the restriction of disclosure only by narrowly defined exemptions, and places a duty on public and private bodies ‘to create, keep, organise and maintain information’ in ‘a manner that facilitates the exercise of the right of access to information’ (Principle 30). Notably, Principle 29 on ‘Proactive disclosure’ introduces a welcome proactive international digital open data standard requirement that goes beyond the requirement of Section 14 of Paia that South African public entities must proactively publish a manual on their internal structure and functions as well as a description of the subjects on which the entity holds information. Thus: • Public bodies and relevant private bodies shall be required, even in the absence of a specific request, to proactively publish information of public interest, including information about their functions, powers, structure, officials, decisions, budgets, expenditure and other information relating to their activities. • Proactive disclosure by the relevant private bodies shall apply to activities for which public funds are used or public functions or services are performed.

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• Information required to be proactively disclosed shall be disseminated through all the available mediums, including digital technologies. In particular, states shall proactively publish information in accordance with internationally accepted open data principles. Proactive disclosure of this kind will require the introduction of standards for prescribed formats and standards for online disclosure as part of e-government and other open data services. Some work on this has already been done as part of South Africa’s Open Government Partnership (OGP) commitments to establish open data portals (e.g. Vulekamali and Municipal Money), but South Africa still needs to deliver on a number of commitments made in its various OGP national action plans. As discussed in Chapter 7, the SAHRC and Irsa can support this work under their mandates to promote and protect informational rights in South Africa. In addition, the declaration provides that the procedure for accessing information must be ‘as expeditiously and inexpensively as possible, and in accessible formats and technologies’ (Principle 31). Should Paia be revised in this regard, it would be significantly more aligned to the informational and transparency needs of society in the 4IR.

Obligations of non-state actors Given the increasing role of private actors in facilitating access to socioeconomic rights, the question of accountability needs to be critically extended to the private sector, as it is – at least partially – with respect to transparency. Speaking about the ways in which individuals engage with powerful actors, Alison Tilley (a recently elected commissioner of Irsa) stated during the 1999 parliamentary deliberations on Paia that there is often not a substantial difference when dealing with the private or public sectors. A person dealing with a bank or a department over a welfare grant usually experiences that the two are similar. The divide between what is government and what is not is eroding and the relationship a person has with one is not necessarily different to that which they have with the other. It has

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become merely a question of power relations and the focus should be on the balance of power rather than whether a body is public or private. (PMG 1999)

This point is critically important in the context of the 4IR. What resulted from the deliberations in Parliament was the extension of the right of access to information to the private sector, empowering information requesters with a rights claim against businesses to compel the disclosure of information where it relates to the protection or enjoyment of another right. Despite the limitations of Paia in the digital age, the point is significant. For, going back to the historical conceptualisation of human rights, they were designed to protect individuals against abuses of power by the state. Recognising that, in contemporary society, corporations can often hold as much power (both politically and socially, as well as economically) as the state, human rights obligations for the promotion, protection, fulfilment and respect of human rights must also be extended to non-state actors. Within the South African context, there is already a legal framework in place that promotes this idea. Section 8 of the Constitution provides that juristic persons, including corporations, have direct responsibilities with regard to the Bill of Rights.13 This provision was further interpreted by the Constitutional Court in Allpay Consolidated Investments Holdings (Pty) Ltd and Others v Chief Executive Officer of the South African Social Security Agency and Others 2014 (4) SA 179 (see the case study below) to denote that corporations have positive responsibilities to ‘respect, protect, promote and fulfil the rights in the Bill of Rights, when acting as an organ of state by fulfilling services derived from the Constitution’ (Para 49). However, in a broader sense, Section 8 also lays out the constitutional framework for all businesses to respect, protect, promote and fulfil the Bill of Rights within their sphere of influence. This has not yet been duly noted by the business community and further advocacy efforts in this regard are needed. The Companies Act (No. 71 of 2008) is the primary Act governing the operations of private companies in South Africa, and is geared

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towards promoting the understanding of a company as a corporate social citizen. It stresses a company’s responsibility towards local communities and encourages social transformation in the workplace. Notably, Section 7(a) of the Companies Act lists the promotion of compliance with the Bill of Rights and the Constitution as one of the Act’s core objectives. Furthermore, the Act establishes a provision for social and ethics committees for large businesses and stateowned companies. These committees are mandated to monitor the companies’ compliance with the relevant laws and codes, particularly the Promotion of Equality and Prevention of Unfair Discrimination Act (No. 4 of 2000), the Employment Equity Act (No. 55 of 1998) and the Broad-based Black Economic Empowerment Act (No. 53 of 2003). They are further mandated to bring matters to the attention of a board consisting of both executive and non-executive directors, and to report to shareholders on relevant social and ethical issues. In short, the Companies Act encourages corporate accountability and transparency, although in a limited sense, in that many of these measures are aimed at promoting transparency to shareholders rather than to a broad stakeholder base. In terms of these measures, the Act may be an important regulatory framework from which to promote the socially responsible, ethical, transparent and accountable development and use of 4IR-related technologies. The role of the Social and Ethics Committee should include provisions for oversight of a company’s use of technology and its impacts on societies, including the processing of personal data.

Socioeconomic rights in the 4IR There are myriad ways in which technological advancements associated with the 4IR can assist with, or affect, the realisation of economic and social rights. In relation to the use of algorithmic processing and human rights, Murray (2020: 310) states that the range of contexts in which algorithms are used also generates other less studied threats to human rights. For instance,

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automated credit scoring can affect employment and housing rights; the increasing use of algorithms to inform decisions on access to social security potentially impacts a range of social rights; the use of algorithms to assist with identifying children at risk may impact family life; algorithms used to approve or reject medical intervention may affect the right to health; while algorithms used in sentencing decisions affect the right to liberty.

The use of algorithmic processing in relation to digital justice is explored further in Chapter 3; however, there are a number of ways in which the technologies associated with the 4IR can promote the realisation of socioeconomic rights specifically. As noted in the quotation above, algorithmic processing can be used in the administration of social security through digital identification systems for the disbursement of social grants. This can have potential consequences for the enjoyment of other rights, as highlighted above and as explored in detail in the case study below. However, it can also improve the system by eliminating duplicates, reducing fraud and leakages as well as corruption. In addition, 4IR technologies can support the promotion of the right to education through massive open online courses, the use of smart boards in classrooms, and other online and digital resources that allow learners to access teaching materials remotely. Jantjies (2020: 2) explains in a recent policy brief on AI, data and education in South Africa: From remote teaching and intelligent tutoring to learner management and automated grading systems, digital technologies have been implemented to mitigate some of the resource challenges facing educational institutions while enabling better decision-making in administrative and management processes. Now, emerging data-driven tools, including artificial intelligence (AI) and sub-fields like machine learning (ML), promise a new level of insight and automation for these digital education initiatives.

In addition to promoting access to educational opportunities and supporting new methods for optimising learning and pedagogical

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engagement, the technologies associated with the 4IR are considered to support food security. This includes the use of AI technologies for early pest and disease detection, the use of satellite imagery and predictive technologies for anticipating crop yields and drought, as well as support to smallholder farmers using databases with assistance from the state and private sector. AI and the 4IR are thought to be particularly beneficial for furthering advancements in healthcare through diagnoses, 3D printing, health systems databases and remote robotic surgery. The latter is considered of particular benefit to rural and inaccessible parts of the country where health facilities are limited (Singh 2020). The COVID-19 pandemic has also raised the profile of biotechnology – a set of technologies considered critical in the WEF’s original conceptualisation of the 4IR (Schwab 2016). The potential for gene editing techniques, such as clusters of regularly interspaced short palindromic repeats (Crispr), to be used for the editing of human genomes (Nicholson & Pepper 2016) and which may support significant advances in health, raises the necessity for developing regulations that protect human rights while enabling beneficial applications of biotechnology (Van Harmelen 2017). Some jurisdictions, such as China, allow limited human genome editing while other jurisdictions prohibit it in any form. South Africa needs to articulate a clear position, taking into account the health applications that may be unlocked as well as the material and ethical risks (which include the relationship between gene editing and the potential for eugenics). Another set of regulatory challenges are related to the processes by which agricultural biotechnology applications move from the laboratory and into the market. On the one hand, strict testing and approval processes for genetically modified agricultural products are critical for ecological and human protection. On the other hand, where such processes become an unsurmountable obstacle, they have the potential to prevent life-saving technologies from reaching the public (Thomson 2018). Human rights principles play a key role in

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balancing competing interests and concerns regarding the use of such advanced technologies. When considering the fulfilment of broad socioeconomic rights, the question of ecological sustainability also becomes critical. While AI and 4IR technologies are intended to play a key role in reducing carbon emissions and furthering renewable energy and resources, the drive to digitisation may compromise the rights of future generations if not realised in a sustainable manner. It is therefore imperative that industry 4.0 be harnessed to shift manufacturing towards a more sustainable trajectory (Carvalho et al. 2018; Stock et al. 2018; WEF 2017a) and the reduction of carbon emissions (Unido 2017). Further research is needed to better understand how the 4IR may impact the environment in South Africa and how 4IR technologies can better serve to protect against environmental damage.

Service delivery and access to local government AI and advanced data and algorithmic processing hold the potential to support efficiency in service delivery. Data systems can monitor, track and ultimately prioritise service delivery needs and outcomes in relation to water and sanitation, and even inform land-use planning. These technologies are especially important for local government where there is a poor history of service delivery, particularly in outlying areas due to a lack of capacity, skills and management systems. In addition, the automatic collection of data at a municipal level on service delivery can support transparency, accountability and anticorruption efforts, where they are made open and available as per the guidelines set out in the Declaration of Principles on Freedom of Expression in Africa. In addition, AI technologies can be used to support engagement between citizens and local government that can promote responsive service delivery as well as transparency and accountability. In 2018, the Department of Cooperative Governance and Traditional Affairs (Cogta) partnered with a private technology company to launch the use

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of an AI-enabled application called ‘GovChat’ for online citizenship engagement to promote accountability in local government (Plantinga et al. 2019). Plantinga et al. (2019: 216) explain: GovChat is an online application that allows users to submit queries about public services to councillors and public officials through a variety of electronic channels, including websites, WhatsApp and USSD … The expectation from CoGTA is that through GovChat, government will be ‘instantly accessible to over 16 million people’ and ‘citizens will be able to access over 10,000 public representatives supporting over 30,000 public facilities and services in communities across the country’ (CoGTA, 2018). Importantly, the planned pipeline for GovChat includes the integration of Artificial Intelligence responses, Predictive Trend mapping (in its Version 2 roll-out in 2019) and Natural Language query input (Version 3, 2020).

GovChat is a good example of where the state has outsourced technological capabilities to a private company in order to support the delivery of rights, and in this case public participation at a local level. While GovChat may have a number of benefits for improving access and responsiveness, these systems must be designed in ways that provide transparency and ensure accountability so that there can be recourse where rights are indeed violated. Clear guidelines should be set regarding the use of the personal data to which private companies partnering with the public sector have access – this is of critical importance in the case study below. In addition, local communities and local government officials should be skilled and empowered to use such technology effectively and (for government officials) to prevent abuse of power (Plantinga et al. 2019). For GovChat specifically, this must include the promulgation of the platform in local languages and not just in English. The availability of text and language-based technologies in all the official languages is key, too, for education and upskilling programmes. Of note is that this is part of a wider problem when it comes to supporting local languages on technology platforms. For example, an investigation by Reuters revealed that while

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Facebook offered its users official support in 111 different languages, an additional 31 widely spoken languages on the platform did not have official support. Furthermore, of those 111 languages, only 41 contained detailed rules about its ‘community standards’ – the rules that provide guidance on what constitutes offensive material such as hate speech. As noted in the Reuters investigation, this language deficit across its support and moderation functions made it difficult to ‘rein in harmful content and the damage it can cause, including to the company itself’ (Fick & Dave 2019). With this in mind, it becomes difficult to provide transparency and ensure accountability when the technology itself may not be capable of, for example, identifying rights violations being perpetrated (or reported) in unsupported languages.

Case Study 4 South African Social Security Agency (Sassa) The year 2014 was the beginning of what was to become an extended controversy involving Sassa, its service providers and the payment of beneficiaries. One such incident involved Cash Paymaster Services (CPS), the service provider charged with ensuring that social grant beneficiaries received their grants. CPS had access to one of the largest biometric databases in the country held by Sassa to assist in the administration of social grants. This database contained the fingerprints, photos and other pertinent personal information of about 2.8 million beneficiaries, which was used as part of CPS’s automated payment system. In addition, Net1 UEPS Technologies (Net1) – the parent company of CPS – had access to the biometric database of personal information. Net1 decidedly and repeatedly exploited access to this information by partnering with credit providers to market

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financial services to Sassa beneficiaries, based on social profiles developed from the data (Beharilal 2017). This raises serious concerns about the vulnerability of social grant beneficiaries to further exploitation of rights where the provision of social grants becomes automated. Given that this group of people are already rendered vulnerable due to the structural modalities of poverty, their increased vulnerability is a serious cause for concern and requires specific action to remedy where violations occur and to prevent against further rights violations. In terms of privacy (which will be discussed further in the next chapter), this incident raised the following concerns: • Section 69 of Popia strictly prohibits the use of personal information for direct marketing purposes, unless the data subject gives consent; is a customer of the responsible party; has not previously withheld consent; or if she/he is not a customer, has only been approached once. • CPS’s mandate was solely for the provision of social grants and not for marketing purposes. • CPS and Net1 were aware that beneficiary information was personal and private. • Consent was not sought from the Sassa beneficiaries. • The information was used repeatedly. In the 2017 case of Black Sash Trust v Minister of Social Development and Others (Freedom Under Law NPC Intervening) 2017 (3) SA 335 involving Sassa, the Constitutional Court inserted provisions in the service provider contract to ensure that the protection of the beneficiaries’ privacy remained paramount: The terms and conditions shall: (a) contain adequate safeguards to ensure that personal data obtained in the payment process remains private and may

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not be used for any purpose other than payment of the grants or any other purpose sanctioned by the Minister … and (b) preclude anyone from inviting beneficiaries to ‘opt in’ to the sharing of confidential information for the marketing of goods and services. It is declared that SASSA is under a duty to ensure that the payment method it determines: 10.1 contains adequate safeguards to ensure that personal data obtained in the payment process remains private and may not be used for any purpose other than payment of the grants or any other purpose sanctioned by the Minister … (Para 76)

This judgment is in line with the principle(s) contained in Popia regarding ‘purpose specification’. The information collected by Sassa and used by CPS was intended specifically and exclusively for the payment of social grants and not for further marketing by Net1. Every responsible party processing personal information has a duty to protect that information and only use it for what it was intended. This case study gives further clarity to the ways in which the right to privacy intersects with other rights in the context of the 4IR. The exploitation of private information (gathered for the administration of social grants) for commercial gain can often fall by the wayside when contrasted with access to basic rights like food, sanitation, water and service delivery. The matter is also critically indicative of the low levels of understanding regarding privacy rights and the work that must be done – in partnership with the SAHRC – to promote advocacy of rights awareness in the digital age. This is explored further in the following chapter.

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Conclusion As noted above, while the 4IR brings a number of significant benefits for the realisation and enjoyment of human rights, we must not lose sight of the responsibility to ensure that basic rights – such as access to healthcare, education, water, sanitation and food security – are realised. Indeed, South Africa has to keep up with the growing technological and associated developments while ensuring that basic development and service delivery continues, particularly to the most impoverished in the country. Leapfrogging the realisation of these basic rights in the drive to keep up with the 4IR may simply exacerbate existing inequalities in terms of access to rights and leave those who already suffer from structural violations to their basic rights further behind. In addition, partnering with the private sector to promote service delivery and access to rights through the development and use of advanced AI and 4IR technologies must be done in a manner that is accountable and transparent, and with meaningful oversight, in order to mitigate against potential exploitation and bias.

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The way forward

As South Africa develops its policies on the 4IR, this is a critical opportunity to influence policy-making and ensure that national responses to the 4IR are developed and promulgated from a human rights-based approach. Thus, this chapter sets out the way forward for addressing human rights concerns raised by 4IR technologies and thinking through how 4IR technologies can be harnessed for the realisation of human rights. This chapter is structured following the three main recommendations to (i) develop a human rights-based approach to the 4IR; (ii) clearly define the roles of constitutional and statutory bodies in relation to the 4IR and human rights, and further capacitate them; and (iii) promote awareness and understanding of the 4IR and human rights in communities across South Africa. Thereafter, this chapter lists other specific recommendations and suggested areas for further research. For Murray (2020: 58), the 4IR requires ‘a change in thinking … if human rights law is to more effectively inform decision-making processes from the outset’. How this change in thinking applies to the regulatory space in South Africa is the key focus of this chapter.

A Human rights-based approach to the regulation of the 4IR If the 4IR is to be harnessed in pursuit of improving the quality of life for all and not to the detriment of the enjoyment of human rights, then human rights should play a central role in regulating this new technological era. As Schwab (2016) states, national responses to the 4IR must ‘take a stance on social values’ and seek to enhance and protect, rather than erode, such values through the development and use of the technologies associated with the 4IR.

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The emphasis placed globally on ethics frameworks as the key regulatory response to AI and the 4IR has, in places, been criticised for promoting privatisation and neoliberalism at the expense of human rights (Gurumurthy & Chami 2019). This is largely because of the major role played by private sector bodies in developing the codes to which they are then held to account. In addition, unlike human rights that have a long history of jurisprudence and experience in balancing competing rights and interests, ethics guidelines offer a legitimate framework on which to base decisions that can more easily be aligned to corporate interests. However, given the extent to which AI and other 4IR-related technologies are set to impact society, there is a critical need to ensure that the use and development of such technologies do not hinder or infringe the realisation or enjoyment of rights. Thus, in broad terms, a human rights-based approach to the regulation of AI and the 4IR that takes into account the lived realities and local needs of South Africa would include the following key elements: • Emphasise non-discrimination. • Emphasise realising substantive equality and recognising the differential experience of enjoyment of, or access to, rights in the digital era. • Promote awareness of rights in the digital and 4IR context. • Draw on national, regional and international jurisprudence on human rights, particularly in balancing competing rights. • Require powerful non-state actors to take positive steps to realise and protect human rights in line with Section 8 of the Constitution. • Put in place meaningful mechanisms for redress and remedy where violations occur. • Emphasise meaningful public consultation and public participation. • Focus on creating inclusive futures and designing and appropriating inclusive technologies.

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• Understand the interdependence of rights such that, for example, the right to privacy is understood alongside dignity, freedom of movement and freedom of expression, among many others. The strong culture of constitutionalism in many African countries (especially South Africa but including Uganda, Kenya and Ghana) is a significant foundation on which to build a human rights culture around the 4IR in ways that enhance social justice together with inclusive national development. As described in the previous chapter, in South Africa the application of the Constitution extends to the private sector, which, given the extent of the private sector’s involvement in the development of 4IR technologies (whether or not they are ultimately used in society by public or private sector actors), is a critical factor for ensuring transparency and accountability throughout the value chain of technology development and deployment. Another useful framework for developing a human rightsbased approach to the regulation of the 4IR is the UN Common Understanding on a Human Rights Based Approach to Development Cooperation (hereafter the UN Common Understanding) developed in 2003 by the UN Development Group. The aim of the document was to generate a common understanding of a human rights-based approach to development initiatives between a multistakeholder group consisting of states, international donors, businesses, civil society and local communities. Accordingly, the UN Common Understanding is centred upon three main principles relating to the centrality of the realisation of human rights to all development projects, which is pertinent for developing a human rights-based response to the 4IR. It outlines the core human rights principles of a human rights-based approach as follows: • Universality and inalienability. Emanating from Article 1 of the Universal Declaration of Human Rights: ‘All human beings are born free and equal in dignity and rights’, the universality and inalienability principle states that everyone is entitled to all human rights, equally and without distinction.

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• Indivisibility. All rights are inherent to human dignity, and cannot be understood as distinct from one another. As such, this requires a holistic realisation of all rights. • Interdependence. The realisation of one right often depends on the realisation of another right. • Equality and non-discrimination. All human beings are equal by virtue of their inherent dignity. As such, all human beings are entitled to the equal enjoyment of their rights without discrimination. • Participation and inclusion. Everyone is entitled to equal, free and active meaningful participation in the implementation and enjoyment of all rights. • Accountability and rule of law. All duty-bearers (both state and non-state) hold obligations with regard to the realisation of human rights. As such, they must comply with the legal norms and standards on human rights that have been set out at a national and international level. Where they fail to do so, aggrieved parties have the right to effective remedy or redress. The principles set out in the UN Common Understanding provide a useful framework for understanding what a human rights-based approach to the regulation of the 4IR in South Africa should look like. Indeed, a human rights-based approach seeks, overall, to position the realisation of human rights as fundamental to the overall project at hand. Murray (2020: 159) additionally sets out that, when it comes to a human rights-based approach to the 4IR and good governance in the use of technologies by the public sector, governments should be accountable for the deployment of advanced technologies in the first instance by examining why a deployment is ‘necessary’, and what alternative approaches are available, states can more clearly explain their intentions, act more transparently, and better engage with any subsequent challenges and debates, legal or otherwise. [emphasis added]

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Moreover, Murray (2020: 159) states that, in deciding whether to use advanced technologies, governments must take into account that a central objective of the law is to protect individuals against arbitrary rights interferences. This requires clarity and certainty vis-à-vis the scope of state authority. To protect against arbitrariness and determine the legitimacy of any deployment, states should typically conduct a three-part test. The measure in question should: (a) be in accordance with the law, (b) pursue a legitimate aim, and (c) be necessary in a democratic society. These features in turn require states to conduct a pre-deployment impact assessment. This is not an explicit human rights law requirement, but it is implicit: if states must ensure that their activities do not result in human rights violations, they must identify the potential impact of those activities.

Indeed, as mentioned in earlier chapters, one of the key ways in which a human rights-based approach to the regulation of the 4IR could be pursued is through the provision, development and rollout of human rights impact assessments. Such impact assessments may have to be developed as a collaborative effort between the SAHRC and Irsa given the critical linkages with the right to information privacy engendered by almost all technologies associated with the 4IR. While the GDPR (discussed in Chapter 2) provides that the rollout of new technologies that may have a risk for the enjoyment of rights and freedoms must be preceded by a data protection impact assessment to gauge, measure and address the risks to human rights prior to deployment, no such provision exists – in these terms – in Popia. Instead, Popia gives Irsa the power to conduct assessments on the level of compliance with the Act by a public or private body (Section 40[1][a][vi]), which is further detailed in Section 89. In addition, Popia provides that Irsa may examine whether the public or private body in question has conducted a risk assessment in relation to their processing of personal information as a determining factor in setting a fine for non-compliance (Section 109[3][g]). None of these

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provisions explicitly references the new risks to human rights posed by new and advanced technologies, largely associated with the 4IR. In this respect, human rights impact assessments would need to be promoted under a best practice standard for the regulation of the 4IR in South Africa. In terms of the private sector, this could be linked to two existing provisions: one in national law and one in international soft law. In terms of national law, the Companies Act (as noted) provides for social and ethics committees to undertake assessments of the social and ethical impacts of business enterprises. This can encompass undertaking human rights impact assessments to gauge the impact of, in particular, the use of 4IR-related technologies on human rights. In terms of international law, the UN Guiding Principles (UNHRC 2011a: 20) provide for ‘assessing human rights impacts [that] can be incorporated within other processes such as risk assessments or environmental and social impact assessments’ and that such assessments ‘should include all internationally recognized human rights as a reference point’. In his report to the UNHRC, the UN Special Rapporteur on the Right to Food Professor Olivier de Schutter (UNHRC 2011c:  14–15) identifies six steps of a human rights impact assessment in terms of the UN Guiding Principles:14 1) Screening: ‘A preliminary analysis of which human rights are most likely to be affected, with respect to which population groups.’ 2) Scoping: ‘Determine the set of questions that will have to be addressed and the methodology to be applied, including the use of indicators, for the full assessment in the areas identified at the screening stage.’ 3) Evidence gathering: ‘The use of both quantitative (including economic modelling and regression analysis) and qualitative research (including consultations with rights holders or their representatives, and where feasible using participatory research methodologies), in order to determine the impacts as precisely as possible.’

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4) Analysis: ‘The impacts of the trade or investment agreement on the ability of the State to respect, protect and fulfil human rights should be assessed, taking into account what has been said above about trade-offs.’ 5) Conclusion and recommendations: Presentation of conclusions and recommendations to the appropriate bodies that can be held accountable. 6) Evaluation mechanisms: ‘Appropriate follow-up should be given to the conclusions and recommendations adopted at the final stage of the impact assessment, by organising a monitoring and evaluation mechanism assessing the extent to which these conclusions and recommendations were in fact taken into account.’ The above sets out a comprehensive framework from which to begin to build a regulatory instrument for assessing – and ultimately addressing – the adverse human rights implications of technologies associated with the 4IR. In the next section, the role of human rights institutions (such as NHRIs) in promoting, protecting and respecting human rights in the 4IR, as well as other relevant state institutions, is examined.

Building capacity in state institutions to promote human rights in the 4IR SAHRC NHRIs established in accordance with the UN General Assembly resolution15 and their respective national laws are increasingly seen as a major player in the promotion and protection of human rights at national, regional and international levels. With the right orientation, such institutions are critically placed to make a significant contribution in responding to human rights challenges brought about by the 4IR and in exploiting developments in new technologies for the advancement of human rights.

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These institutions play a unique role in ensuring the implementation of international and regional human rights standards at national levels while also being in a good position to influence regional and international human rights development from a national perspective. NHRIs are therefore better placed than most human rights institutions to respond to national, regional and global challenges of the 4IR and new technologies if appropriately empowered. In the context of South Africa, the role of NHRIs in response to the challenges and opportunities of the 4IR can be played by the SAHRC (an independent constitutional body established to strengthen South Africa’s constitutional democracy through the promotion and protection of human rights) and other independent constitutional and statutory bodies established to protect and strengthen the country’s constitutional democracy. The SAHRC is an NHRI established under Chapter 9 of the Constitution. It is an independent body created to support constitutional democracy through the exercise of its mandate (as set out in Section 184 of the Constitution) to promote, protect and monitor the observance of human rights. The SAHRC is empowered to investigate and report on human rights, seek redress for victims of human rights violations, carry out research and educate. Section 184(3) of the Constitution bestows on the SAHRC a specific mandate to monitor the government’s efforts in realising the socioeconomic rights contained within the Bill of Rights. As such, socioeconomic rights have historically been a core focus area for the SAHRC, and one which has been intimately connected to facilitating state accountability to the poor. Through its work in promoting accountability, the SAHRC has demonstrated that, for an institution to be accountable, it must (i) be responsive to the needs of the people it serves in order to build a relationship between the institution and the people to which it is accountable; (ii) provide access to timely and accurate information in a way that is easily comprehended;

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and (iii) there must be some kind of independent oversight of the institution to ensure that it meets its obligations. With regard to human rights in South Africa, the SAHRC plays this oversight role. The SAHRC’s constitutional mandate is further elaborated on in the South African Human Rights Commission Act (No. 40 of 2013) (hereafter the SAHRC Act). This Act details the powers and functions of the commission under Section 13 and includes the competencies to make recommendations to all organs of state regarding the fulfilment of human rights, reviewing government policies on human rights and making recommendations, undertaking studies on human rights issues, and monitoring the implementation of and compliance with internationally agreed laws and standards. The SAHRC’s legislative mandate is in line with the Principles Relating to the Status of National Institutions (hereafter the Paris Principles) adopted by the UN General Assembly as Resolution 48/134 in 1993. The Paris Principles were developed to direct NHRIs in the fulfilment of their duties and responsibilities. They pertain specifically to the competencies, functions, composition and independence of NHRIs. The Paris Principles also constitute the guidelines under which the UN International Coordinating Committee of NHRI’s Subcommittee on Accreditation certifies NHRIs. The SAHRC is currently accredited with ‘A’ status by the subcommittee, meaning that it is fully compliant with the Paris Principles. As a constitutionally established body, the SAHRC is accountable to the National Assembly of Parliament and periodically reports on its performance and activities in fulfilment of its mandate. Chapter 9 of the Constitution provides for the establishment of six institutions to ‘strengthen constitutional democracy’ in South Africa (Section 181). These institutions are afforded a vital set of protections and powers that render them effective in the performance of their mandates. In particular, they ‘are independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice’ (Section 181[2]); all other ‘organs of state,

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through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions’ (Section 181[3]). The SAHRC is responsible for promoting respect for and a culture of human rights among the general public, state organs and private actors. The SAHRC fulfils this mandate through its advocacy programmes, including awareness campaigns such as public roadshows and capacity-building workshops (SAHRC 2019). The SAHRC retains these overarching responsibilities in respect of all rights, despite the particular responsibilities given to Irsa in terms of Popia regarding the right to access to information and the right to privacy, noted below. In terms of the SAHRC’s statutory powers under the SAHRC Act, it can investigate and report on the observance of human rights, take steps to secure appropriate redress where human rights are violated, carry out research and educate the public. The SAHRC’s aspiration for its findings and recommendations to be considered binding have arguably been bolstered by the Constitutional Court’s decision in the Nkandla matter involving the commission’s sister Chapter 9 institution, the Office of the Public Protector and the president. While the court did not make specific mention of the SAHRC’s powers, its judgment held that ‘no decision grounded on the Constitution or law may be disregarded without recourse to a court of law’ (Economic Freedom Fighters v Speaker of the National Assembly and Another [CCT76/17] [2017] ZACC 47: Para 74). The judgment dealt with the decision-making powers of constitutionally established bodies generally, such as those established by Chapter 9, and found that the decisions and remedial action of the public protector were binding. It is reasonable to interpret the judgment to have a similar effect with regard to decisions and remedial action by the SAHRC. The powers and functions of the SAHRC include those set out in the Constitution, the SAHRC Act and ‘any other law’ (SAHRC Act 13[1]), and include making recommendations for law and policy reform where weaknesses are identified through the exercise of its mandate.

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Two examples of relevance in the present context are the SAHRC’s role in Paia and Popia reform, with the former requiring more urgent attention (as discussed in the previous chapter). Thus, Section 83 of Paia provides that the SAHRC may make recommendations for (i) the development, improvement, modernisation, reform or amendment of this Act [i.e. Paia] or other legislation [e.g. Popia] or common law having a bearing on access to information held by public and private bodies, respectively; and (ii) procedures in terms of which public and private bodies make information electronically available.

These examples of the SAHRC’s mandate highlight, in Section 13(1)(b), the need for close collaboration between the two institutions. Indeed, as set out in the SAHRC Act, the SAHRC must as far as is practicable maintain close liaison with institutions, bodies or authorities with similar objectives to the Commission in order to foster common policies and practices and to promote co-operation in relation to the handling of complaints in cases of overlapping jurisdiction or other appropriate instances.

Similarly, Irsa has a duty to consult and cooperate with other persons and bodies concerned with the protection of personal information (Section 40[1][c][ii] of the Popia), which includes the SAHRC’s overarching mandate in respect of all rights. In summary, the key roles of the SAHRC in relation to the human rights implications of the 4IR are as follows. • Promotion/Education: Educate the public as well as state and private actors on digital rights (particularly data rights) and the human rights implications of the 4IR (see further on this below), and facilitate dialogue between stakeholders (including the government, technology developers, civil society and local communities). • Monitoring/Research: Monitor human rights concerns lodged in relation to new technologies; conduct further in-depth

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research on the impact on human rights of the use of 4IRrelated technologies in society; develop technical systems (see further on this below) to support analysis of human rights trends; develop monitoring mechanisms for redress where digital rights violations occur; review human rights impact assessments in advance of the rollout of new technologies; report and monitor the implementation of international standards pertaining to human rights and technology, and human rights in the digital age. • Protection/Complaints handling/Mediation and conciliation: Raise awareness of SAHRC complaints handling competencies relating to digital rights; handle complaints relating to negative human rights impacts of the deployment of 4IR technologies in South Africa; cooperate with other suitable complaints handling bodies; work closely with the judiciary to promote access to justice for victims of 4IR-related human rights violations. Furthermore, the SAHRC should use its alternative dispute resolution mechanisms such as mediation and conciliation in handling 4IR-related human rightsrelated matters, which may require multistakeholder engagements. Critically, too, the SAHRC needs to be adequately capacitated to fulfil its broad mandate and to fully support the promotion, protection and monitoring of human rights in South Africa in the 4IR era. This includes building capacity within NHRIs, both for staff to use technologies in the furtherance of their mandates and in understanding how human rights are implicated in the digital age. In addition, there needs to be investment by NHRIs in digital tools (such as deep analysis tools) and security and data protection tools, to protect their systems and the information they carry. In South Africa, the SAHRC is well placed (together with Irsa) as a connector between the various multistakeholder arrangements often involved in the deployment and use of 4IR, AI and digital technologies to facilitate dialogue and establish a shared understanding of how human rights can be protected and advanced within the 4IR.

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In addition, under Section 11 of the SAHRC Act, the commission can establish advisory committees on particular issues of concern. These committees consist of independent experts from a range of stakeholders and provide strategic guidance on issues relating to the portfolios of the different commissioners. They also assist in ensuring that the commission keeps abreast of developments in civil society and at grassroots level. It is recommended that the SAHRC establishes a Section 11 committee to advise on human rights in the 4IR. Lastly, an important consideration for the SAHRC as an NHRI is how to harness the benefits of digital technologies to support access to its functions and to better deliver on its institutional mandate. Advanced data analytics can be used to analyse complaints received and identify human rights trends, and technologies can be used to monitor human rights situations such as the data analytics used by the Kenya National Commission on Human Rights to monitor human rights violations during the 2017 elections. In addition, data analytics can be used to generate data visualisations that can serve as advocacy tools in communities and to tell the story of aggregate human rights situations.

Irsa Irsa should play a key role in the regulation of the 4IR and should cooperate with the SAHRC to promote a human rights-based approach in this regard. Irsa is established in terms of Section 39 of Popia as a juristic person that ‘(a) has jurisdiction throughout the Republic; (b) is independent and is subject only to the Constitution and the law and must be impartial and perform its functions and exercise its powers without fear, favour or prejudice’. This provision is similar to the provision of Section 181(2) of the Constitution applicable to Chapter 9 institutions. However, Adams and Adeleke (2020: 12) observe that, as a statutory body rather than a constitutional institution, Irsa’s independence is ‘arguably not

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guaranteed to the same extent as the independence of the SAHRC’ and that effective independence ‘is integral to the effectiveness of the institution and its ability to protect human rights and hold violators of human rights to account’. However, the provisions of Section  41 of Popia provide standards for the appointment and removal of members of Irsa that rise to a level similar to the protections of the independence of Chapter 9 bodies. Section 40 of Popia sets out the powers and functions of Irsa, which include providing education on and promoting understanding and acceptance of the lawful processing of personal information (Section 40[1][a]); monitoring and enforcing compliance by public and private bodies with Popia and Paia, including by reporting on compliance to Parliament and conducting assessments on the lawfulness of personal information processing by a public or private body (Section 40[1][b]); consulting with interested parties, including cooperating with national and international persons or bodies, acting as mediator between opposing parties regarding personal information matters, issuing enforcement notices (Section 40[1][c]) and where necessary fines (Section 105), and settling disputes (Section 78); handling complaints (Section 40[1][d]); conducting research and reporting to Parliament on the findings of such research (Section 40[1][e]); issuing codes of conduct (Section 40[1][f]); and facilitating the cross-board transfer of personal information (Section 40[1][g]). All of these functions will become ever more pertinent in the context of the 4IR and the massive data processing it is set to bring about. The establishment of the IR has been welcomed, particularly for its enforcement powers, including the imposition of fines for noncompliance. Popia prescribes that the IR has the status of a High Court, and its remedial actions will thus be binding on all parties (Section 50[2]). Used strategically, the IR’s ‘soft power’ instruments may be as significant as its enforcement powers. Thus, for example, mutually agreed codes of conduct within various sectors and industries have

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the potential to provide important proactive standards to guide the dynamism of the 4IR. As noted above, ‘anticipatory governance’ could be a vital tool to insert ‘data ethics’ as early as the design stage of new technologies. Sewlal (2020) of Irsa defines data ethics as follows: Data ethics is an ‘emerging area that promotes the ethical handling of personal information. The Regulator can play a material role in promoting data ethics. The mass abuse of personal information has led to public distrust in data management. This is the very reason why data ethics are obligatory. A collaborative multi-stakeholder approach is necessary to safeguard personal information enabling a culture of good data governance and ethics. Respect for information that belongs to others is a fundamental ethic. Failure to adopt a culture of data governance and ethics will limit the benefits of a digital economy.

Overall, Irsa is set to play a significant role in the governance of the 4IR in relation to the processing of personal data and in promoting data ethics, as set out above. In addition, in line with its responsibilities under Paia, Irsa can promote open data and access to information, which is both critical to ensuring transparency and accountability in the development and use of 4IR-related technologies and as an enabler for data-based entrepreneurship and development.

IEC Freedom of expression, freedom of speech, freedom of assembly and freedom of association are intimately associated in the context of democratic political processes, especially during an election campaign. As discussed in Chapter 5, in particular, these rights are implicated by online engagements and social media. The IEC is established by Section 181(1)(f) of Chapter 9 of the Constitution as one of the independent bodies to strengthen

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constitutional democracy in South Africa. The Constitution mandates the IEC to manage elections of all national, provincial and municipal legislative bodies; to ensure that they are free and fair; and to declare the results. The Electoral Commission Act (No. 51 of 1996) prescribes the additional powers of the IEC, which include to ‘promote conditions conducive to free and fair elections’ (Section 5[1]). Additional responsibilities of the IEC are prescribed in terms of the provisions of the Electoral Act (No. 73 of 1998). Among others, Section 87 proscribes the exercise of undue influence and Section 88 prohibits the impersonation of voters, officials or candidates. The IEC is responsible for developing, revising and upholding the Code of Conduct contained in Schedule 2 of the Electoral Act. Among other things, the code prohibits registered parties and candidates from using language or acting in a way that may provoke violence during an election, or the intimidation of candidates, members of parties, representatives or supporters of parties, candidates or voters. They are also prohibited from publishing false or defamatory allegations about an election in respect of a party, its candidates, representatives or members, or a candidate or the candidate’s representatives. These are significant legitimate limitations of freedom of speech and expression, especially given the level of politically related violence in South Africa; although it is not always related to elections and is often tied more to contestation over access to the resources linked to public office. However, thus far, little attention has been paid to assessing or managing the risk of online actors undermining free and fair elections in South Africa. As the COVID-19 pandemic has shown, the government considered it necessary to legislate against and criminalise the deliberate dissemination of false information (‘fake news’) about the disease and the government’s efforts to manage it.16 In an interconnected age, local or remotely based ‘bad actors’ with malicious intent may easily spread ‘fake news’ during an election

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campaign, impersonate candidates, or deploy AI-enabled ‘bots’ to create a false impression of support for particular views, policies, statements or actions – as was the case during the 2016 US presidential election and during the UK’s ‘Brexit’ referendum campaign, as revealed by the Cambridge Analytica Scandal of 2018. As discussed in Chapter 5, South Africa has not been immune to its own brand of ‘fake news’ which ‘in its various guises in the South African mediascape has become highly politicised’ (Wasserman 2020: 12) – perhaps none more so than the ‘white monopoly capital’ campaign conjured up by Bell Pottinger during which a number of fake Twitter accounts were used to counter allegations made against former president Jacob Zuma and the Guptas (2020: 7). Of equal importance to citizens’ full enjoyment of the rights of access to information and freedom of expression are the provisions of Section 8 of the Code of Conduct that require parties and candidates to ‘respect the role of the media before, during and after an election’; to allow them access to ‘public political meetings, marches, demonstrations and rallies’; and to ‘take all reasonable steps to ensure that journalists are not subjected to harassment, intimidation, hazard, threat or physical assault by any of their representatives or supporters’. These and other provisions of the Electoral Act and Code of Conduct constitute legitimate constraints or limitations on freedom of speech or expression. In such circumstances, the SAHRC’s expertise in balancing various rights and freedoms could be of assistance to the IEC as it seeks to uphold the code and take enforcement measures before the electoral court (Section 95 of the Electoral Act). Irsa can play an important role by advising the IEC on what constitutes legitimate exercise of freedom of expression. A related advisory role of both the SAHRC and Irsa may be helpful in respect of the privacy provisions of the Electoral Act, which include the prohibition on the infringement of the secrecy of the ballot and of the use of voters’ personal information for purposes other than those legitimately related to an election (Section 93). Freedom House’s most recent

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report (2019) shows that there have been ‘some cases of extra-legal intimidation or violence reported against bloggers, journalists, and online users during the coverage period’. Thus, there is a clear role for the SAHRC in supporting the IEC to manage the risks to the enjoyment of rights during elections in the digital age effectively; to educate voters, candidates and voters about their rights and responsibilities; and to assist the IEC in monitoring conduct and identifying infractions in order to support its ability to uphold legislated standards of conduct effectively during elections. More broadly, it may be pertinent for the SAHRC to undertake a joint research project with the IEC on the impact of digitisation and 4IR technologies on political rights and elections. In addition, Irsa plays an important role in support of the IEC’s mandate, perhaps most urgently in respect of the risks associated with AI-enabled online efforts to undermine the IEC’s ability to ensure free and fair elections. Irsa’s research and assessment responsibilities in respect of the various dimensions of freedom of expression and privacy, together with its mandate to develop mutually agreed codes of conduct, render it a key stakeholder in the ability of the IEC to ensure the effective management of elections so that they can be declared free and fair. Given the rights implications, the SAHRC has a mandate here too.

Competition Commission The Competition Commission is established in terms of the Competition Act (No. 89 of 1998), which provides for the establishment of the commission that is ‘responsible for the investigation, control and evaluation of restrictive practices, abuse of dominant position, and mergers’ (preamble). The preamble to the Act states that the ‘people of South Africa recognise’ among other things that ‘the economy must be open to greater ownership by a greater number of South Africans’ and that ‘an

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efficient, competitive economic environment, balancing the interests of workers, owners and consumers and focused on development, will benefit all South Africans’. To this end, the Competition Commission is established in terms of Section 19, while Section 20 provides that it (a) is independent and subject only to the Constitution and the law; and (b) must be impartial and must perform its functions without fear, favour, or prejudice.

In terms akin to those applicable to independent institutions established in terms of Chapter 9 of the Constitution, Section 20(3) provides that ‘[e]ach organ of state must assist the Commission to maintain its independence and impartiality, and to effectively carry out its powers and duties’. In terms of existing jurisprudence involving the Office of the Public Protector, these provisions are likely to have the effect of enhancing the binding nature of the commission’s findings and recommendations unless overturned on review by a court of law. The Competition Commission is mandated, among other things, to conduct investigations, initiate market inquiries and conduct impact studies; issue guidelines regarding its approach to matters that fall within its jurisdiction (Section 79); and give advisory opinions (Section 79A). Given the prevalence of monopolisation in the technology industry globally, the Competition Commission may play an important role in promoting inclusivity in the regulation of the 4IR. Indeed, a key concern of the widespread adoption of algorithms (e.g. pricing algorithms) in the economy is the possibility of collusive behaviour without any formal agreement or human interactions in place. The Act in its current form may not serve adequately to guard against algorithmic collusion where horizontal and vertical practices, as well as abuse of a dominant position, may occur tacitly at the whim of the algorithm, without any human involvement or decision-making.

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Case Study 5 Recent market inquiry regarding internet access As noted in Chapter 6, access to the internet is recognised as an important enabler for realising other rights, including access to information such as news and information about public services; freedom of expression and speech; access to the right to education, such as distance education; and, increasingly, freedom of trade, occupation and profession such as information about available educational, vocational and commercial opportunities. In this context, data prices become a critical consideration; and data prices in South Africa have been especially high, in part driven by the limited competition in the market between a few large telecommunications companies – a matter that was discussed at length at the SAHRC workshop. These high costs have served to exclude a large number of people living in South Africa from internet access, leading to broad-based campaigns advocating for a reduction in data prices such as #DataMustFall. After an inquiry, the Competition Commission released its final report on 2 December 2019. The commission found, among other things, that the two major mobile telecommunications companies operating in South Africa (Vodacom and MTN) had prepaid data packages whose prices were unreasonably high compared to their postpaid packages, that their prices in South Africa were unreasonably high compared to those they offered in other African countries and that the overall effect was that their pricing structures resulted in unfair discrimination against poorer customers (Competition Commission 2019: 15–17). The commission also found that an unfair market structure

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had been stubbornly persistent, despite the presence of some competitors. One of the Competition Commission’s most notable recommendations was a free ‘lifeline’ data allowance to give poorer users access to essential information, including software updates required to keep the device operable. Arthur Goldstuck, a technology journalist, describes the decision as entailing an ‘implicit recognition that the providers of smartphones and the services that run on them have a responsibility to enable the use of those devices. If they are selling a device that needs data simply for it to function, they have a duty to provide at least the basic level of data that the devices need’ (Mathe 2019). The Competition Commission (2019:  13) ‘identified a provisional package of recommendations that provide immediate relief [from] high data prices, especially for lowincome consumers, combined with initiatives to improve mobile price competition and greater infrastructure alternatives to consumers over the medium term’. The report (dtic 2019) makes several far-reaching recommendations: • a proposed reduction in data prices charged by the telecommunications companies, by a third to half of the existing rates; • reduction in the price differentials on prepaid data that discriminate against low-end, largely poorer users; • a minimum package of daily free data for prepaid customers (as noted above); • zero-rating of content for educational institutions and public benefit organisations’ website downloads to enable students and citizens to access key information; and

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• alternate (i.e. publicly funded) infrastructure provision such as Wi-Fi, with incentives to speed up their rollout. In its recommendations, the Competition Commission (2019: 29) explicitly took into account the implications of the 4IR, declaring that full implementation of this package of remedies will not only lower prices for all consumers, and particularly the poor, but will lead to greater economic and social inclusion moving forward as the country moves into the digital age. The full implementation of the package of remedies is also essential to provide the necessary building blocks for South Africa to participate fully in the Fourth Industrial Revolution and take advantage of the opportunities that revolution presents. Participation in the future digital economy requires low data prices to support a broader consumer and industrial demand required to make digital platforms and solutions commercially viable. It also requires competitive mobile and fibre infrastructure markets to ensure prices remain low as investment and development of new technologies, such as 5G, are rolled out.

Vodacom and MTN were required to reach separate agreements with the commission to reduce their prepaid data package prices by between 30 and 50%, and both subsequently did so (Competition Commission 2020). Both agreements included free data ‘lifeline’ packages. The Competition Commission has an ongoing responsibility to ensure full implementation of its recommendations and these agreements in particular, as well as continued monitoring of the conduct of telecommunications companies as enablers of access to information intermediaries such as Google, Facebook and Twitter. Equally, the role of Irsa (noted above) in terms of providing agile proactive governance will be of increasing significance.

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Promoting awareness of the 4IR and digital rights As has been researched by the HSRC, there is limited understanding among the South African population regarding the 4IR, its components and its social impacts (Roberts et al. 2019). This book has set out in various chapters the importance of strengthening communities’ understanding of the 4IR and its effects on human rights. Critically, the SAHRC must work with Irsa to promote awareness of digital and data rights, how individuals’ data are used, and which mechanisms exist for redress where exploitation and violation take place. Internet education is also an important factor in addressing internet rights and the enjoyment of rights in the digital space. While affordability and accessibility for all citizens are at the forefront of the state’s initiative, education and awareness should be a priority too. Communities need to be educated on the uses of the internet. Thus, awareness programmes about the digital space are necessary for community development, especially regarding when to identify and report rights violations. Young people should be offered guidance on entering any online platforms, and on communal values of respect for others online and those in the community. Lastly, as part of the advocacy tools needed to support an inclusive 4IR for South Africa, capacity has to be built in communities to use new technologies for their benefit. This includes developing relevant and accessible digital upskilling programmes.

Further advisory recommendations Legislative amendments • Paia has to be amended in accordance with the Declaration of Principles on Freedom of Expression and Access to Information in Africa in order to bring the Act in line with the 4IR and the informational demands of industry 4.0. • Popia has to be brought into effect urgently.

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• The effective implementation of Popia and the effective establishment of Irsa with all the necessary resources to carry out its mandate, as provided under the Act, should be a central objective of South Africa’s response to the 4IR. Not only will ensuring that a strong data protection regime is in place protect the rights of individuals against exploitation of their data rights, but it is also necessary if South Africa wishes to share data with any country within the EU. This is because the EU’s data protection regulation (the GDPR) only allows for extraterritorial data-sharing where the other jurisdiction has a strong data protection regime. Without a strong data protection regime, the personal data of those living in South Africa will be vulnerable to exploitation by powerful international groups. • Popia should be revisited to strengthen the provisions relating to the processing of personal information by state bodies (Loideain 2017). • The government should expressly recognise its commitments under international human rights law in terms of the right to work and take steps to ensure the realisation of the right, in line with the Concluding Observations of the UN Committee on Economic, Social and Cultural Rights. • The state should prioritise the alignment of the Cybercrimes Bill with national, regional and international human rights standards, ensuring that safeguards are in place that mitigate any potential violations. In addition, the state must sign and ratify the African Union Convention on Cyber Security and Personal Data Protection. • The SAHRC should, in consultation with Irsa, give thorough consideration to the text of the Declaration of Principles on Freedom of Expression in Africa and the guidance provided by its detailed principles. Careful consideration should be given to the principles and standards that may help to address some of the key weaknesses and gaps identified in access to information and privacy law and practice/implementation. These principles and standards may also help both institutions to provide the agile, proactive governance necessary for the

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dynamic and rapidly growing influence on human society of technologies that form part of the 4IR.

Public participation in policy responses to the 4IR • Technological change, if directed primarily by free market capitalism and the dynamics of unequal social power structures, is likely to lead to inequality and low levels of social justice. It is imperative that technology policy development is participatory and that innovation be steered towards inclusive development. • In all stages of the government’s national response to the 4IR and AI, public participation must be promoted and the outcomes of meaningful consultations with communities and all stakeholders must be taken into account in the development of South Africa’s emerging strategies and policies in this regard.

Promoting diversity and inclusivity in the 4IR • The government should take the lead in promoting diversity in Stem and in the technology industry. • The rollout of language-based AI systems should be in all the official languages. • Recent studies (as outlined in Chapter 4) have shown that while the digital divide in Africa is lessening, the digital divide between men and women is increasing, with women having gradually less access to the internet and digital-based technologies than their male counterparts. This is a cause for concern and specific programmes for enhancing women’s access to digital technologies and women’s digital skills should be developed, in line with the provisions of the Science, Technology and Innovation White Paper of 2019.

Labour and the future of work • Various measures should be introduced to prevent job losses and minimise the risk to socioeconomic wellbeing due to

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automation, including reduced working hours or part-time consulting and retaining workers through reskilling. • Labour conditions in the ‘gig economy’ must be closely monitored so that precarious working conditions do not compromise workers’ rights.

Internet governance • In line with the Declaration of Principles on Freedom of Expression and Access to Information in Africa, internet intermediaries must ensure that when moderating or filtering online content, they mainstream human rights safeguards into their processes. • Although non-binding, the UN resolution on ‘The promotion, protection and enjoyment of human rights on the internet’ should be used as a benchmark for ensuring that the state affords its citizens the same rights in an online environment that they have offline.

Recommendations to business • Encourage public accountability over the state–business nexus by ensuring all contracts between the state and private companies are publicly available, particularly to those communities that may be directly impacted by the private company. Contracts can be posted on the relevant government’s website for ease of access. This is particularly relevant where a state body outsources technological capabilities, infrastructure and processing to a private company. • The role of the social and ethics committees under the Companies Act should include provisions for oversight of a company’s use of technology and its impact on societies, including processing personal data. • Use data impact assessment tools when rolling out new technologies to large segments of the population where data processing takes place, in line with the provisions of the GDPR.

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• Develop mentorship and scholarship programmes to encourage women in technology companies into Stemrelated jobs. • Ensure that the use of algorithmic processing is transparent and accountable, and that automated decision-making is not relied on unlawfully.

Conclusion and further areas of research The 4IR constitutes a critical moment of reflection for the progress of human rights in South Africa. Human rights are the cornerstone of South Africa’s post-democratic identity in the community of sovereign states. The 4IR poses a risk precisely to the democracy of South Africa and even to the country’s standing as a sovereign state through its potential to undermine the enjoyment and realisation of human rights. In both promoting the centrality of human rights to South Africa’s developmental progress (in line with the government’s Medium-Term Strategic Framework 2014–2019) and protecting human rights as the fundamental basis of a thriving democratic society, South Africa can arrive at a response to the 4IR that is genuinely – and substantially – inclusive. Through exploring the salient human rights implications of the 4IR (including predictive policy, digital justice, surveillance, privacy, data governance, cybersecurity, fake news, internet access, the digital divide, bias and discrimination), this book has sought to open meaningful dialogue about how South Africa can respond to the 4IR in a manner that protects and promotes human rights. In total, this book has sought to provide a comprehensive introduction to human rights and the 4IR in South Africa; to provide a detailed overview of the current regulatory framework governing technologies, technological advancements and fundamental rights and freedoms as they pertain to South Africa; and to engage with the key human rights implications – both positive and negative – of the 4IR in the context of our constitutional democracy.

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As described in the previous chapter, this book offers three major recommendations to shape South Africa’s response to the 4IR: (i) a human rights-based approach to the regulation, particularly policy development, of the 4IR; (ii) the need to capacitate existing state institutions with mandates to promote, protect and respect human rights so that they can meaningfully address adverse impacts and human rights violations where they occur; and (iii) promoting awareness of the 4IR in South Africa and the adverse and beneficial implications it holds for our communities, publics, and the individual enjoyment and access to fundamental rights and freedoms. Critically, as this book offers an introductory overview of human rights and the 4IR in South Africa, it raises many questions and makes visible the many areas of research where further, in-depth understanding of the complexity and intersectionality of the human rights implications of the 4IR can be better understood. Such research is essential for developing and ensuring evidence-led policy responses. In the following sections, further key areas of research highlighted by this book are briefly set out.

Data sovereignty as the right to development Given the extent to which privacy is implicated in the 4IR era, there has been a move to consider the ways in which individuals can be empowered to own, use and sell their data – an idea broadly known as data sovereignty. More critically for a growing digital economy like that of South Africa, data sovereignty has been identified as a part of the right to development, insofar as individuals and groups of individuals within communities can make decisions about how their data is used for the benefit of the social, cultural and economic development of their communities. At present, there is not enough literature or research to fully understand the implications of this idea and the extent to which it would support the developmental goals of South Africa.

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Group privacy and collective rights One of the unique features of the African system on human and peoples’ rights is the emphasis on group rights – a notion that does not arise in the human rights models of any other region or jurisdiction. Alongside this is the growing concern that some violations to the right to privacy caused by the digital age are experienced as a group (i.e. that the right to privacy of particular groups of people are violated together on the basis of a categorical discrimination against the group, for example a postal code). Thus, further research is needed to better understand how the African human rights notion of group or community rights could be brought to bear in protecting the right to privacy.

Foreign direct investment in 4IR technologies and human rights The 4IR is a global, and thus transjurisdictional, issue. As argued by Hogarth (2018), the drive towards AI and the 4IR creates a new kind of nationalism with potentially disastrous effects for countries not leading in developing their own technology. For countries like South Africa, which has a growing technology economy but receives significant foreign direct investment and uses multinational technology providers, there is a need to examine how human rights are protected when faced with mounting foreign economic pressure. The recent example in Zimbabwe, where it was reported that a Chinese company bought the biometric databases of photos of individual faces from the government, is an example of an imbalance in power that invariably led to the violation of individual rights (White 2019).

Contracting between public and private entities for the provision of technological services As noted in this chapter, many of the 4IR-related technologies used by state actors have been developed by the private sector. The key way in which this relationship is governed is through the contract between the

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public entity and the private service provider. While we can readily say that such contracts must include provisions relating to a human rightsbased approach to the development and rollout of a new technology, there is a need to conduct a human rights impact assessment ex ante and ex post, and to ensure that questions of accessibility are taken into account. Further research is needed to develop a fair contractual and audit framework to ensure that such contracting is implemented and with oversight.

4IR, AI and democracy In other parts of the world, technologies associated with the 4IR – specifically social media platforms and their underlying AI systems, profiling, targeting and algorithmic processing – have been shown to have a potentially serious effect on democracy. This was largely brought to light following the Cambridge Analytica scandal in 2018 and the use of data from social media platforms to influence election outcomes. In South Africa, where almost 50% of the population uses social media (Statista 2020), it will be critical to ensure that social media and other 4IR-related technologies do not create unfair influences on electoral processes, for example through the manipulation of social media content and the generation of ‘deep fakes’ and fake news (Susarla 2018). Further research is needed to understand, more broadly, the effect 4IR technologies are having, and may have, on democracy in South Africa.

Children and the 4IR It is becoming increasingly evident that the implications of the 4IR and related technologies on children – their wellbeing, rights and development – are significant. In other parts of the world, reports have been published on the effect of screen time and the internet on children’s wellbeing, particularly for young children in their first 1 000 days of life. Further research will be necessary to understand this.

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Endnotes 1 Preamble of the 1776 US Declaration of Independence. 2 Para 1 of Part I of the Vienna Declaration. 3 See Section 7 of the Constitution of the Republic of South Africa, 1996, which provides that the Bill of Rights is the cornerstone of the country’s democracy and that the state must ‘respect, protect, promote and fulfil the rights in the Bill of Rights’. 4 The US is said to have sprayed more than 20 million gallons of herbicides in Vietnam and Cambodia between 1961 and 1971. The herbicide Agent Orange contained the chemical dioxin, which caused cancer, birth defects, and severe psychological and neurological problems. See https:// www.history.com/topics/vietnam-war/agent-orange-1. 5 Para 11 of Part I of the Vienna Declaration. 6 Article 10, Protection of Privacy: ‘No child shall be subject to arbitrary or unlawful interference with his privacy, family home or correspondence, or to attacks upon his honour or reputation, provided that parents or legal guardians shall have the right to exercise reasonable supervision over the conduct of their children. The child has the right to the protection of the law against such interference or attacks.’ 7 For example, by 2030, Africa faces having up to 100 million children with no recorded proof of their identity. 8 For more information on the process of the Cybercrimes Bill, see https://pmg.org.za/bill/684/. 9 See, for example, the features of the software developed by the legal technology company Gavelytics, which seeks to provide ‘unparalleled judge information’: https://www.gavelytics.com/#features. 10 The introduction to the declaration contextualises its history and objectives: ‘The Declaration was adopted by the African Commission on Human and Peoples’ Rights (the African Commission) at its 65th Ordinary Session which was held from 21 October to 10 November 2019 in Banjul, The Gambia. The Declaration establishes or affirms the principles for anchoring the rights to freedom of expression and access to information in conformance with Article 9 of the African Charter … The Declaration therefore forms part of the soft-law corpus of Article 9 norms developed

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139 by the African Commission, including the Model Law on Access to Information for Africa as well as the Guidelines on Access to Information and Elections in Africa, adopted by the Commission, respectively, in 2013 and 2017.’ This declaration replaces the 2002 declaration in order to address major developments during the subsequent two decades, notably ‘in relation to access to information and the interface between Article 9 rights and the internet’. 11 Regarding online content regulation, see also the Special Rapporteur’s Report A/HRC/38/35, 6 April 2018, at Paras 5 to 8. 12 For example, it was recently reported that in an effort ‘to contain the spread of false information about COVID-19, Facebook will start alerting users who have engaged with posts that contain harmful misinformation about the disease. The new policy only addresses false claims about cures or information that physical distancing is not effective. So far, Facebook has removed these posts from the platform. The new policy, in addition to removing such posts, will direct users who liked, shared, or commented on posts with misinformation to a “myth busters” page available on the World Health Organization (WHO) website’. See https:// dig.watch/updates/facebook-alerts-users-about-covid-19-misinformation. 13 8. Application (1) The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state. (2) A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right. 14 The UN Special Rapporteur’s recommendations were made in relation to trade or investment agreements. 15 Resolution 48/134 on ‘National institutions for the promotion and protection of human rights’. 16 Regulation 11(5): ‘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.’

See https://www.lexisnexis.co.za/__data/assets/pdf_file/0003/753843/ DISASTER-MANAGEMENT-ACT,-2002.pdf.

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Glossary 3D printing:   Printing technology that makes a physical object from a three-dimensional digital model, ordinarily through the process or action of laying down numerous layers of a particular material in succession. Algorithm:   A finite list of instructions, most often used in solving problems or performing tasks (comparable to following a recipe) and commonly used in computer science and programming processes. Artificial intelligence:  A term typically applied today in reference to neural-network-based learning systems that process big data according to algorithmic models, artificial intelligence names and data processing digital systems that function to produce results and decisions with a level of machine autonomy. Automated decision-making:  The process of making a decision without human involvement. The decision is usually based on a collection of data and made by means of an algorithm. Automation:   The process whereby tasks ordinarily carried out by human beings are replaced by autonomously functioning machines and software. Big data:   The computational analysis of extremely large datasets to reveal patterns, connections and trends. Biometrics:   Technology that reads individual physical characteristics (such as facial, gait, emotion, retina and fingerprint recognition technologies) for authentication or identification. Biometrics are replacing traditional methods of identification authentication such as passwords and personal identification numbers (PINs). Blockchain:   The digital archive of online transactions and engagements, protected by cryptographic information technology. It takes the form of a distributed ledger. Cloud technologies:  An on-demand internet-based platform where information can be stored and shared within a global network. Commercialisation:  The process by which a product is introduced into commerce and marketed for mass production.

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141 Content moderation:  The process of sorting and filtering content/ information submitted by users, based on predetermined guidelines or rules, before publication. This is usually used on online platforms where comments considered explicit or obscene are removed and/or deleted. Corporate governance:  The process by which corporations detail and create the framework of rules and codes that aid them in operating, regulating and controlling their business. Corporate good governance refers to a corporate system of governance that promotes economic and social sustainability in both the business and its external stakeholder group. Corporate social investment:  The monetary support of a company actively to bring about social benefits above and beyond profit-making. Corporate social responsibility:  A loosely defined concept that refers to corporate behaviour which is mindful of the social impact of enterprises or corporate behaviour designed to benefit society, particularly in relation to communities directly affected by their business operations (including employees and their families). Corporatisation:  The development of control over and conversion of government agencies or other organisations into one privately owned corporation. Crypto-assets:  Digital assets, typically held as investments, that are virtually protected through cryptography using blockchain technologies and listed on a public ledger. Data subject:  The natural person from whom personal data are collected, as prescribed under data protection law, including the South African Protection of Personal Information Act (No. 4 of 2013). Deep fakes:   Synthetic media, ordinarily in the form of videos or audio recordings in which a person is replaced with someone else’s likeness so that they look and/or sound just like the other person. This is done through using learned image synthesis in artificial intelligence systems, which serve to alter one’s original state to resemble that of another. Deep learning: A complex form of machine learning that uses a multilayer algorithmic neural network to train artificial intelligence systems. Due diligence: The process of taking reasonable steps through research, analysis and careful consideration to ensure that a corporation

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or other entity does not commit an offense or violate any laws when undertaking any sort of business venture. Extraterritorial jurisdiction: This gives the government of a country the legal right to exercise authority and judgment over and beyond the territorial limits of its home state. Facial recognition technology: Artificial intelligence enabled technology, often embedded in CCTV cameras, that identifies and processes the characteristics of a human face against a database. Fake news (disinformation): This is a form of news consisting of deliberate disinformation/hoaxes spread via social media, fake news websites or traditional news media (thereby lending legitimacy to such disinformation). Filter bubbles: An algorithm tailored to expose an online user to information and opinions that exclusively reinforce their personal beliefs and views. They are often referred to as ‘intellectual isolation’ and are similar to targeted advertising. Fourth Industrial Revolution: The Fourth Industrial Revolution was originally defined by the World Economic Forum following the publication of the same name in 2016 by Klaus Schwab, and is considered the fourth major industrial epoch since the initial industrial revolution of the 18th century, set to have a major impact on all aspects of society and industry. Its key characteristic is the digitisation of the physical and biological worlds and the primacy of technological advancement for human and social development. Gender responsive budgeting: A mechanism for investigating budgets and the efficient use of resources in ways that support the relationship between economic goals and social commitments to advance gender equality and women’s rights within government planning schemes. Gig economies: These use digital platforms to connect demand and supply in services markets. Human rights-based approach: A methodological approach to conceptualising and implementing a project that takes into account both the human rights impact of the project and the ways in which human rights can be promoted through its implementation. In particular, a human rights-based approach ensures the prioritisation of groups identified as vulnerable to

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human rights violations, such as women, children and persons with disabilities. Internet of things: Internet-enabled sensors and wireless tags embedded in real-world objects that enable remote monitoring and tracking. Juristic persons: A legal entity that consists of a group of people or a person, a corporation or partnership that can be held legally responsible for their conduct. Machine learning: A subset of artificial intelligence that uses neuralnetwork algorithms to enhance the self-learning capacity of machines trained on big data sources. National human rights institution: A national body established by the state to promote, protect and monitor the realisation and enjoyment of human rights. Natural language processing: A subset of artificial intelligence technology that works to understand, interpret and generate human language. Pattern analysis tools: These are systems that use pattern recognition consisting of whatever is known about a particular problem/ environment and available data about any patterns/classes of patterns that exist within them, and then use data analysis techniques to uncover certain structures present in the data. Precision medicine: This refers to healthcare uniquely developed for a group of individuals who share certain characteristics, based on genetic, environmental and lifestyle factors. Privatisation: This is the process of an organisational change from a government or public controlled sector into a privately owned entity. Public–private partnership: A contract or partnership between a government agency and a private sector business to work together to create and fund projects intended to serve the public. Soft law:  Legal instruments passed at the regional or international level that do not have binding legal power, but stand as regionally or internationally agreed standards on a particular issue or topic. Sustainable development: The protection of natural resources and the environment through economic development policies. Transnational corporation: These are corporate entities that are registered and operate in several countries.

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References Access Now (2018) Human rights in the age of artificial intelligence. Accessed 23 December 2020, https://www.accessnow.org/cms/assets/ uploads/2018/11/AI-and-Human-Rights.pdf Adams R (2020) The gendered impact of artificial intelligence and the Fourth Industrial Revolution in South Africa: Inequality, accessibility and skills development. In W Pearson & V Reddy (Eds) Social justice and education in the 21st century – Research from South Africa and the United States. New York: Springer Adams R & Adeleke F (2020) Protecting information rights in South Africa: The strategic oversight roles of the South African Human Rights Commission and the Information Regulator. International Data Privacy Law 10(2): 146–159 Adams R & Ni Loideain N (2019) Addressing indirect discrimination and gender stereotypes in AI personal assistants: The role of international human rights law. Cambridge International Law Journal 8(2): 241–257 African Union (2014) African Union Convention on Cyber Security and Personal Data Protection. Accessed 15 February 2021, https:// au.int/sites/default/files/treaties/29560-treaty-0048_-_african_union_ convention_on_cyber_security_and_personal_data_protection_e.pdf AfriSIG (African School on Internet Governance) (2019) African women face widening technology gap. Accessed 21 December 2020, https://www.apc. org/en/news/african-women-face-widening-technology-gap After Access (2018) Understanding the gender gap in the Global South. Accessed 21 December 2020, http://afteraccess.net/wp-content/ uploads/2018-After-Access-Understanding-the-gender-gap-in-theGlobal-South.pdf APC (2019a) African women face widening technology gap. Accessed 4 May 2020, https://www.apc.org/en/news/african-women-face-wideningtechnology-gap APC (2019b) Global Information Society Watch 2019 – Artificial intelligence: Human rights, social justice and development. Accessed 4 April 2020, https://www.apc.org/en/pubs/global-information-society-watch2019-artificial-intelligence-human-rights-social-justice-anddevelopment

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145 Banga K & Te Velde DW (2018) Digitalisation and the future of manufacturing in Africa. London: Supporting Economic Transformation. Accessed 4 May 2020, https://set.odi.org/wp-content/uploads/2018/03/SET_ Digitalisation-and-future-of-African-manufacturing_Final.pdf Barnes J (2018) Repositioning the future of the South African automotive industry. Paper presented at the SA–EU Strategic Partnership Dialogue Conference on Disruptive Technologies and Public Policy in the Age of the Fourth Industrial Revolution, CSIR International Convention Centre, Pretoria (10–12 December) Barnes J, Black A, Comrie D & Hartogh T (2018) Geared for growth: South African automotive industry masterplan to 2035. Accessed 22 December 2020, http://www.afsa.org.za/Downloads/SA_Auto_Masterplan.pdf Barth S & De Jong (2017) The privacy paradox: Investigating discrepancies between expressed privacy concerns and actual online behavior – A systematic literature review. Telematics and Informatics 34(7): 1038–1058 Beharilal S (2017) The SASSA controversy: Aspects related to the protection of personal information. Accessed 4 May 2020, https://www.ppmattorneys. co.za/sassa-controversy-aspects-related-protection-personal-information/ Benbouzid B (2019) To predict and to manage. Predictive policing in the United States. Big Data & Society 6(1): 1–13 Benjamin R (2019) Race after technology. Cambridge: Polity Press Bostrom N, Dafoe A & Flynn C (2016) Policy desiderata in the development of machine superintelligence. Oxford: Future of Humanity Institute, University of Oxford. Accessed 22 December 2020, http://www.fhi. ox.ac.uk/wp-content/uploads/Policy-Desiderata-in-the-Developmentof-Machine-Superintelligence.pdf Boulamwini J & Gebru T (2018) Gender shades: Intersectional accuracy disparities in commercial gender classification. Proceedings of Machine Learning Research 81: 1–15 Bradshaw-Martin H & Easton C (2014) Autonomous or ‘driverless’ cars and disability: A legal and ethical analysis. European Journal of Current Legal Issues 20(3). Accessed 20 April 2020, http://webjcli.org/article/ view/344 Breckenridge K (2014) Biometric state: The global politics of identification and surveillance in South Africa, 1850 to the present. Cambridge: Cambridge University Press Bristow T (2017) Post African futures: Positioning the globalized digital within contemporary African cultural and decolonizing practices. Critical African Studies 9(3): 281–301

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b.telligent Industry 4.0. Accessed 25 January 2021, https://www.btelligent. com/en/portfolio/industry-40/ BusinessTech (2020) Standard Bank on closing branches: We can’t stop the progress of technology. Accessed 20 November 2020, https://businesstech.co.za/ news/banking/369488/standard-bank-on-closing-branches-we-cant-stopthe-progress-of-technology/ C4IR-SA (Centre for the Fourth Industrial Revolution South Africa) (n.d.) Accessed 4 May 2020, https://www.c4ir-sa.co.za/ Calland R (2013) The right of access to information: The state of the art and the emerging theory of change. In F Diallo & R Callard (Eds) Access to information in Africa. Leiden: Brill Campbell C (2019) ‘The entire system is designed to suppress us.’ What the Chinese surveillance state means for the rest of the world. Time, 21 November. Accessed 4 May 2020, https://time.com/5735411/chinasurveillance-privacy-issues/ Cann O (2020) ‘Fourth Industrial Revolution Tech Can Fast Track 70% of Sustainable Development Goals’. Accessed 8 February 2020, https://www. weforum.org/press/2020/01/fourth-industrial-revolution-tech-can-fasttrack-70-of-sustainable-development-goals/ Cannataci J (2020) Report of the special rapporteur on the right to trivacy A/ HRC/43/52. Accessed 30 November 2020, https://undocs.org/en/A/ HRC/43/52 Carvalho N, Chaim O, Cazarini E & Gerolamo M (2018) Manufacturing in the Fourth Industrial Revolution: A positive prospect in sustainable manufacturing. Procedia Manufacturing 21: 671–678 Civilian Secretariat for Police (2016a) White Paper on Policing. Accessed 4 May 2020, http://www.policesecretariat.gov.za/downloads/bills/2016_White_ Paper_on_Policing.pdf Civilian Secretariat for Police (2016b) White Paper on Safety and Security. Accessed 4 May 2020, https://www.saferspaces.org.za/uploads/files/2016-WPSS.pdf Competition Commission (2019). Data services market inquiry final report. Accessed 30 April 2020, http://www.compcom.co.za/newsletter/datamarket-inquiry/ Competition Commission (2020) Commission reaches agreement with MTN on reduction of data prices. Accessed 1 May 2020, http://www.compcom.co.za/ wp-content/uploads/2020/05/COMMISSION-REACHES-AGREEMENTWITH-MTN-ON-REDUCTION-OF-DATA-PRICES.pdf Craido-Perez C (2019) Invisible women: Exposing data bias in a world designed for men. London: Penguin Press

HSRC 2020 HR and 4IR in SA final.indd 146

2021/03/05 10:46:13 AM

References

147

Darch C, Adams R & Ke Y (2018) Taking back control through openness and inclusivity? The case of internet governance in South Africa. In D Oppermann (Ed.) Internet governance in the Global South: Theory, history and contemporary debates. São Paulo: NUPRI-USP Darch C, Darch R, Majikijela Y, Adams R & Rule S (2020) AI, biometrics and securitisation in migration management: Policy options for South Africa. Accessed 22 December 2020, https://policyaction.org.za/ai-data-topicalguide-series Davis N (2016) What is the fourth industrial revolution? World Economic Forum, Global Agenda, 19 January. Accessed 15 April 2020, https://www.weforum. org/agenda/2016/01/what-is-the-fourth-industrial-revolution/ Deeks A (2020) Introduction to the symposium: How will artificial intelligence affect international law? American Journal of International Law Unbound 138. Accessed 30 November 2020, https://papers.ssrn.com/sol3/ papers.cfm?abstract_id=3586988 Deva S & Bilchitz D (2013) Human rights obligations of business: Beyond the corporate responsibility to respect? Cambridge: Cambridge University Press De Vos P (2017) Rejecting the free marketplace of ideas: A value-based conception of the limits of free speech. South African Journal of Human Rights 33(3): 359–379 Digital Watch (2020) Facebook alerts users about COVID-19 misinformation. Accessed 30 November 2020, https://dig.watch/updates/facebook-alertsusers-about-covid-19-misinformation Donoghue J (2017) The rise of digital justice: Courtroom technology, public participation and access to justice. Modern Law Review 80(6): 995–1025 Dorfling H, Lockhat Z, Pretorius S, Steyn M & Oettlé A (2018) Facial approximations: Characteristics of the eye in a South African sample. Forensic Science International 286: 46–53 DSI (Department of Science and Innovation) (2019) White Paper on Science, Technology and Innovation. Pretoria: Government Printer dtic (Department of Trade, Industry and Competition) (2018) Industrial Policy Action Plan 2018/19–2020/21. Accessed 21 December 2020, http://www. thedtic.gov.za/wp-content/uploads/IPAP.pdf dtic (2019) Competition Commission market inquiry into South African mobile data services finds evidence of higher prices. Accessed 20 April 2020, http://www. thedtic.gov.za/competition-commission-market-inquiry-into-southafrican-mobile-data-services-finds-evidence-of-higher-prices DTPS (Department of Telecommunications and Postal Services) (2016) National Integrated ICT White Paper. Accessed 23 December 2020, https://

HSRC 2020 HR and 4IR in SA final.indd 147

2021/03/05 10:46:13 AM

148

human rights and the 4th industrial revolution in south africa

www.dtps.gov.za/images/phocagallery/Popular_Topic_Pictures/ National_Integrated_ICT_Policy_White.pdf DTPS (2017) National E-Government Strategy and Road Map. Government Gazette No 40772. Accessed 22 December 2020, https://www.dtps.gov.za/images/ phocagallery/Popular_Topic_Pictures/national_e-Gov_Strategy.pdf DTPS (2018) Invitation to nominate candidates for the Presidential Commission on Fourth Industrial Revolution, Notice 764 of 2018. Accessed 4 May 2020, https://www.gov.za/sites/default/files/gcis_ document/201812/42078gen764.pdf Duncan J (2018) Stopping the spies: Constructing and resisting the South African surveillance state. Johannesburg: Wits University Press Easton C (2014) Driverless cars could change lives for disabled people, if we let them. Accessed 4 May 2020, https://theconversation.com/driverless-carscould-change-lives-for-disabled-people-if-we-let-them-30286 European Commission (2018) General Data Protection Regulation 2016/679. Accessed 4 May 2020, https://gdpr-info.eu/ European Commission (2019) Trustworthy AI: Brochure. Accessed 24 April 2020, https://ec.europa.eu/digital-single-market/en/news/trustworthy-ai-brochure/ EU (n.d.) General Data Protection Regulation: Recitals ‘Privacy Impact Assessment’. Accessed 21 December 2020, https://gdpr-info.eu/issues/ privacy-impact-assessment FAT/ML homepage (n.d.) Accessed 4 May 2020, https://www.fatml.org/ Fenwick MD, Kaal WA & Vermeulen EPM (2017) Regulation tomorrow: What happens when technology is faster than the law. American University Business Law Review 6(3): 561–594 Fick M & Dave P (2019) Facebook’s flood of languages leaves it struggling to monitor offensive content. BusinessLive. Accessed 21 December 2020, https://www.businesslive.co.za/bd/world/2019-04-23-facebooks-flood-oflanguages-leaves-it-struggling-to-monitor-offensive-content/ Fin24 (2019) Standard Bank closures – Here’s how you will be affected. Accessed 4 May 2020, https://www.fin24.com/Companies/FinancialServices/standard-bank-branch-closures-heres-how-you-will-beaffected-20190604 Freedom House. (2019) Freedom of the Net 2019. Accessed 10 May 2020, https://freedomhouse.org/country/south-africa/freedom-net/2019 Frey CB & Osborne MA (2017) The future of employment: How susceptible are jobs to computerisation? Technological Forecasting and Social Change 114: 254–280. Accessed 4 May 2020, www.oxfordmartin.ox.ac.uk/ downloads/academic/The_Future_of_Employment.pdf

HSRC 2020 HR and 4IR in SA final.indd 148

2021/03/05 10:46:13 AM

References

149

FXI (Freedom of Expression Institute) (2014) Internet freedom and freedom of expression in South Africa. Accessed 4 May 2020, https://www.fxi.org.za/ docs-resources/Module_Internet_Freedom_and_Freedom_of_Expression_ in_South_Africa.pdf Gan N (2020) China is installing surveillance cameras outside people’s front doors … and sometimes inside their homes. Accessed 4 May 2020, https://edition. cnn.com/2020/04/27/asia/cctv-cameras-china-hnk-intl/index.html Garvie C (2019) Garbage in, garbage out: Face recognition on flawed data. Accessed 4 May 2020, https://www.flawedfacedata.com/ Gastrow M (2020) Policy options for the Fourth Industrial Revolution in South Africa, HSRC Policy Brief. Pretoria: HSRC Press Gillwald A (2019) South Africa is caught in the global hype of the fourth industrial revolution. Accessed 4 May 2020, https://theconversation.com/south-africais-caught-in-the-global-hype-of-the-fourth-industrial-revolution-121189 Gurumurthy A & Chami N (2019) Radicalising the AI governance agenda. In Global Information Society Watch 2019 – Artificial intelligence: Human rights, social justice and development. Accessed 4 May 2020, https://www.academia. edu/41162458/Global_Information_Society_Watch_2019_Artificial_intelligence Hogarth I (2018) AI nationalism. Accessed 28 February 2020, https://www. ianhogarth.com/blog/2018/6/13/ai-nationalism Huws U (2014) Labour in the global digital economy: The cybertariat comes of age. New York: Monthly Review Press IBM Security (2019) Cost of a data breach report. Accessed 28 February 2020, https://www.all-about-security.de/fileadmin/micropages/ Fachartikel_28/2019_Cost_of_a_Data_Breach_Report_final.pdf IDRC (International Development Research Centre) (2018) Artificial intelligence and human development: Toward a research agenda. Accessed 21 December 2020, https://www.idrc.ca/sites/default/files/ai_en.pdf Institute of Directors Southern Africa (2016) King IV Report on Corporate Governance for South Africa. Accessed 28 February 2020, https://cdn.ymaws. com/www.iodsa.co.za/resource/collection/684B68A7-B768-465C-8214E3A007F15A5A/IoDSA_King_IV_Report_-_WebVersion.pdf IOL (2019) Standard Bank to close branches across the country. Accessed 20 April 2020, https://www.iol.co.za/business-report/companies/standard-bankto-close-branches-across-the-country-25021118 ITU (International Telecommunication Union) (2018) ITU’s approach to bridging the digital gender divide. Accessed 5 February 2021, https://www. itu.int/en/myitu/News/2020/05/22/11/16/ITU-s-approach-to-bridging-thedigital-gender-divide

HSRC 2020 HR and 4IR in SA final.indd 149

2021/03/05 10:46:13 AM

150

human rights and the 4th industrial revolution in south africa

Jantjies M (2020) AI and data in education: Policy considerations for South Africa. Accessed 21 December 2020, https://policyaction.org.za/sites/ default/files/PAN_TopicalGuide_AIData3_Education_Elec.pdf Jobin A, Ienca M & Vayena E (2019) The global landscape of AI ethics guidelines. Nature Machine Intelligence 1: 389–399. Accessed 4 May 2020, https://www.nature.com/articles/s42256-019-0088-2 Joh EE (2017) Feeding the machine: Policing, crime data & algorithms. William & Mary Bill of Rights Journal 26: 287–303 Kanza ES (2016) In Africa, girls will lead the Fourth Industrial Revolution. Accessed 4 May 2020, https://www.weforum.org/agenda/2016/03/inafrica-girls-will-lead-the-fourth-industrial-revolution/ Karg I (2019) The future of work. Accessed 4 May 2020, http://www.nstf.org. za/wp-content/uploads/2019/09/4IR-Presentations-innovation-summit2019-v2-IK-final.pdf Kruss G (2018) Towards participatory design, adoption and diffusion of innovation in local settings: Responding to South Africa’s developmental challenges in the era of the Fourth Industrial Revolution. Paper presented at the SA–EU Strategic Partnership Dialogue Conference on Disruptive Technologies and Public Policy in the Age of the Fourth Industrial Revolution, CSIR International Convention Centre, Pretoria (10–12 December) Labuschaigne M & Staunton C (2020) COVID-19: State of disaster in South Africa. Accessed 4 May 2020, https://verfassungsblog.de/covid-19-stateof-disaster-in-south-africa/ Lawrence R (2018) The future of manufacturing employment. Johannesburg: Centre for Development and Enterprise Leicht KT & Jenkins JC (2017) State investments in high-technology job growth. Social Science Research 65: 30–46 LexisNexis (2020) Covid pushes courts to new era. Accessed 21 December 2020, https://www.lexisnexis.co.za/news-and-insights/virtual-working/ covid-19-pushes-courts-to-new-era Li, Hou & Wu (2017) Fourth Industrial Revolution: Technological drivers, impacts and coping methods. Chinese Geographical Science 27(4): 626–637 Loideain NN (2017) Cape Town as a smart and safe city: Implications for governance and data privacy. International Data Privacy Law 7(4): 314–334 Loideain NN & Adams R (2020) From Ava to Siri: The gendering of virtual personal assistants and the role of data protection law. Computer Law and Security Review

HSRC 2020 HR and 4IR in SA final.indd 150

2021/03/05 10:46:13 AM

References

151

Lui H, Lin C & Chen Y (2019) Beyond State v. Loomis: Artificial intelligence, government algorithmization, and accountability. International Journal of Law and Information Technology 27(2): 122–141 Makarova E, Aeschlimann B & Herzog W (2019) The gender gap in STEM fields: The impact of the gender stereotype of math and science on secondary students’ career aspirations. Frontiers in Education 4: 60 Mantello P (2019) The machine that ate bad people: The ontopolitics of the precrime assemblage. Big Data & Society July–December, 111 Mathe T (2019), ‘From data must fall to data for all’. Mail & Guardian 6th December 2019. Accessed 15 February 2021, https://mg.co.za/ article/2019-12-06-00-from-data-must-fall-to-data-for-all/ McGregor L, Murray D & Ng V (2019) International human rights law as a framework for algorithmic accountability. International and Comparative Law Quarterly 68(2): 309–343 Mensah SO (2019) Emerging technologies: Bridging the digital gap in Africa. Accessed 28 February 2020, https://www.internetsociety. org/blog/2019/01/emerging-technologies-bridging-the-digital-gapin-africa/ Milaj, J & Bonnici JPM (2014) Unwitting subjects of surveillance and the presumption of innocence. Computer Law & Security Review 30: 419–428 Mimecast (2020) Threat intelligence report – RSA conference edition 2020. Accessed 28 February 2020, https://www.mimecast.com/resources/ white-papers/dates/2020/2/threat_intelligence_report_rsac_2020/ Mlamla S (2020) Ex-UCT student arrested for posting how to rob a liquor store in Delft gets bail. Accessed 4 May 2020, https://www.iol.co.za/ capeargus/news/ex-uct-student-arrested-for-posting-how-to-rob-aliquor-store-in-delft-gets-bail-47081288 MMA (Media Monitoring Africa) (2019) Universal access to the internet and free public access in South Africa: A seven-point implementation plan. Johannesburg: ALT Advisory Morachimo M (2019) Privacy is security: An op-ed from Peru. Accessed 28 February 2020, https://privacyinternational.org/long-read/3278/ privacy-security-op-ed-peru Morrar R, Arman H & Mousa S (2017) The Fourth Industrial Revolution (Industry 4.0): A social innovation perspective. Technology Innovation Management Review 7(11): 12–20 Munck R (2013) The precariat: A view from the south. Third World Quarterly 34(5): 747–762

HSRC 2020 HR and 4IR in SA final.indd 151

2021/03/05 10:46:13 AM

152

human rights and the 4th industrial revolution in south africa

Murray D (2020) How will artificial intelligence affect international law: Using human rights law to inform state’s decisions to deploy AI. American International Law Journal Unbound Vol. 114 Nedlac (National Economic Development and Labour Council) (2017) Futures of work in South Africa. Accessed 5 May 2020, https://nedlac.org.za/wpcontent/uploads/2017/10/Futures-of-Work-in-South-Africa-Final-ReportMarch-2019.pdf Nicholson SA & Pepper MS (2016). CRISPR-Cas: Revolutionising genome engineering. South African Medical Journal 106(9): 870–871 NPC (National Planning Commission) (2012) National Development Plan: 2030. Our future – Make it work. Accessed 13 June 2015, http://www.poa.gov. za/news/Documents/NPC%20National%20Development%20Plan%20 Vision%202030%20-lo-res.pdf Noble SU (2018) Algorithms of oppression. New York: New York University Press OECD (Organisation for Economic Co-Operation and Development) (2019) OECD principles on AI. Accessed 22 December 2020, https://www.oecd.org/ going-digital/ai/principles/#:~:text=The%20OECD%20Principles%20on%20 Artificial,Council%20Recommendation%20on%20Artificial%20Intelligence Open Data Institute (2018) What is a data trust. Accessed 21 December 2020, https://theodi.org/article/what-is-a-data-trust/ Pasquale F (2015) The Blackbox Society: The secret algorithms that control money and information. Cambridge, MA: Harvard University Press Pillay K, Ori A & Merkofer P (2017). Industry 4.0: Is Africa ready for digital transformation? A case study of Deloitte South Africa – White Paper Report. Accessed 3 February 2021, https://www2.deloitte.com/content/ dam/Deloitte/za/Documents/manufacturing/za-Africa-industry-4.0-reportApril14.pdf Plantinga P, Adams R & Parker S (2019) Artificial intelligence technologies for responsive local government in South Africa. In Finlay A (Ed.) Global Information Society Watch 2019: Artificial intelligence: Human rights, social justice and development. Melville, Australia: APC, ARTICLE 19 and SIDA. Accessed 22 December 2020, https://www.apc.org/sites/default/files/ gisw2019_artificial_intelligence.pdf PMG (1999) Joint Ad Hoc Committee on the Open Democracy Bill: Hearings on the Open Democracy Bill, Meeting Report, 15 October. Accessed 10 July 2020, https://pmg.org.za/committee-meeting/6825/ PMG (2019) State of Nation Address impact on Department of Small Business Development, with deputy minister. Accessed https://pmg.org.za/ committee-meeting/27881/

HSRC 2020 HR and 4IR in SA final.indd 152

2021/03/05 10:46:13 AM

References

153

Popescu LD (2018) Employee–employer relationships in the gig economy: Harmonizing and consolidating labor regulations and safety nets. Contemporary Readings in Law and Social Justice 10(1): 144–150 Popović A (2020) Implications of the Fourth Industrial Revolution on sustainable development. Economics of Sustainable Development 4(1): 45–60 Press M (2018) Of robots and rules: Autonomous weapon systems in the law of armed conflict. Georgetown Journal of International Law 48: 1337 Privacy International (n.d.) Cybersecurity webpage. Accessed 4 May 2020, https://privacyinternational.org/learn/cyber-security Ramaphosa C (2019) 1st South African Digital Economy Summit [Online], 5 July, Gallagher Convention Centre, Johannesburg. Accessed 4 May 2020, https://www.gov.za/speeches/president-cyril-ramaphosa-south-africandigital-economy-summit-5-jul-2019-0000 Robbins S (2019) A misdirected principle with a catch: Explicability for AI. Minds and Machines 29(4): 1–20 Roberts B, Bohler-Muller N, Struwig J and Gordon S (2019) Rise of the robots: South Africans generally positive about technological advancements, but deeply concerned about job losses. HSRC Review 17(4):12–14 Roff HM (2018) The folly of trolleys: Ethical challenges and autonomous vehicles. Accessed 4 May 2020, https://www.brookings.edu/research/the-folly-oftrolleys-ethical-challenges-and-autonomous-vehicles/ Ross, A (2016). The industries of the future. London: Simon & Schuster SAHRC (2017) Submission to Parliament on the Cybercrimes and Cybersecurity Bill. Accessed 4 May 2020, https://www.ellipsis.co.za/wp-content/ uploads/2017/09/Cybercrimes_Cybersecurity_Bill_2017_SAHRC.pdf SAHRC (2019). Annual Report 2018/2019. Accessed 4 May 2020, https://www. sahrc.org.za/home/21/files/Annual%20Report%202019.pdf Schwab K (2016) The Fourth Industrial Revolution: What it means, how to respond. World Economic Forum, Global Agenda, 14 January. Accessed 15 April 2020, https://www.weforum.org/agenda/2016/01/the-fourthindustrial-revolution-what-it-means-and-how-to-respond Selbst A, Boyd D, Sorelle D, Friedler, A, Venkatasubramanian S & Vertesi J (2019) Fairness and abstraction in sociotechnical systems. Paper presented at the Conference on Fairness, Accountability, and Transparency (FAT* ’19), Georgia, US (29–31 January) Sewlal V (2020) The Right to Data Privacy and the Information Regulator in the Fourth Industrial Revolution. Presentation at the South African Human Rights Commission and Human Sciences Research Council

HSRC 2020 HR and 4IR in SA final.indd 153

2021/03/05 10:46:13 AM

154

human rights and the 4th industrial revolution in south africa

Workshop on ‘The Human Rights Implications of the Fourth Industrial Revolution in South Africa: The Role of National Human Rights Institutions, 5-6th March 2020, Sandton, Johannesburg. Siemens (2017) African Digitalization Maturity Report 2017: Driving African development through smarter technology. Accessed 22 December 2020, https://assets.new.siemens.com/siemens/assets/api/uuid:342ebb4f8c35 96edb6ead62987e60ae6bea10e0d/siemens-african-digitalization-report. pdf Singh V (2020) AI and data in South Africa’s health sector. PAN AI and Data Series. Accessed 5 May 2020, https://policyaction.org.za/sites/default/ files/PAN_TopicalGuide_AIData6_Health_Elec.pdf Smith M & Neupane S (2018) Artificial intelligence and human development: Toward a research agenda. White Paper. Ottawa: International Development Research Centre South Africa (2019) Public Financial Management Act,1999, Ministerial Task Team on the Fourth Industrial Revolution in Post School Education and Training, Government Gazette No. 893: 42518 of 7 June South Africa (2020) Minister Ronald Lamola appoints Justice Kate O’Regan as coronavirus COVID-19 designate judge, Media Statement, 03 April. Accessed 10 July 2020, https://www.gov.za/speeches/minister-ronaldlamola-appoints-justice-kate-o%E2%80%99regan-coronavirus-covid-19designate-judge-3 South African Judiciary (2019) OCJ E-filing court modernisation: Caselines application system. The Judiciary (Q2): 16–19 Spacenews (n.d.) How can space support the Fourth Industrial Revolution? Accessed 23 December 2020, https://spacenews.com/sponsored/ industrial-revolution/ SSA (State Security Agency) (2015) The National Cybersecurity Policy Framework. Accessed 4 May 2020, https://www.gov.za/sites/default/files/ gcis_document/201512/39475gon609.pdf Statista (2020) Digital population in South Africa as of January 2020. Accessed 10 July 2020, https://www.statista.com/statistics/685134/south-africa-digitalpopulation/ StatsSA (2019) Inequality trends in South Africa: A multidimensional diagnostic of inequality. Accessed 15 June 2020, http://www.statssa.gov.za/ publications/Report-03-10-19/Report-03-10-192017.pdf Staunton C, Adams R, Dove ES, et al. (2019) Ethical and practical issues to consider in the governance of genomic and human research data and data sharing in South Africa: A meeting report. AAS Open Research 2: 15

HSRC 2020 HR and 4IR in SA final.indd 154

2021/03/05 10:46:13 AM

References

155

Steyn M, Pretorius M, Briers N, Bacci N, Johnson A & Houlton TMR (2018) Forensic facial comparison in South Africa: State of the science. Forensic Science International 287: 190–194 Stock T, Obenaus M, Kunz S & Kohl H (2018) Industry 4.0 as enabler for a sustainable development: A qualitative assessment of its ecological and social potential. Process Safety and Environmental Protection 118: 254–267 Stone K (2020) Responsible use of artificial intelligence for crime prevention in South Africa, Policy Action Network Topical Guide Series on AI and Data. Accessed 4 May 2020, https://policyaction.org.za/sites/default/files/PAN_ TopicalGuide_AIData2_CrimePolicing_Elec.pdf Stupp C (2019) Fraudsters used AI to mimic CEO’s voice in unusual cybercrime case. Wall Street Journal. Accessed 21 December 2020, https:// www.wsj.com/articles/fraudsters-use-ai-to-mimic-ceos-voice-in-unusualcybercrime-case-11567157402 Susarla A (2018) How artificial intelligence can detect and create fake news. Accessed 4 May 2020, https://msutoday.msu.edu/news/2018/howartificial-intelligence-can-detect-and-create-fake-news/ Sutherland E (2017) Governance of cybersecurity – the case of South Africa. The African Journal of Information and Communication 20: 83–112 Tegmark M (2017) Life 3.0: Being human in the age of artificial intelligence. New York: Vintage Books Tehillah N (2018) Five massive data breaches affecting South Africans. Mail & Guardian Online. Accessed 4 May 2020, https://mg.co.za/article/201806-19-five-massive-data-breaches-affecting-south-africans/ Thomson J (2018) The role of gene editing using CRISPR in new generation agriculture. Paper presented at the SA–EU Strategic Partnership Dialogue Conference on Disruptive Technologies and Public Policy in the Age of the Fourth Industrial Revolution, CSIR International Convention Centre, Pretoria (10–12 December) UN (2019) The age of digital interdependence. Report of the UN SecretaryGeneral’s High-Level Panel on Digital Cooperation. Accessed 21 December 2020, https://www.un.org/en/pdfs/HLP%20on%20Digital%20 Cooperation%20Report%20Executive%20Summary%20-%20ENG.pdf UNCRPD (2016) Enhancing the accessibility of information and technology and inclusive development. Paper presented at the Conference of States Parties to the Convention on the Rights of Persons with Disabilities, New York (14–16 June). Accessed 4 May 2020, https://www.un.org/disabilities/documents/COP/9/RT3/CRPD_ CSP_2016_4-1603540E.pdf

HSRC 2020 HR and 4IR in SA final.indd 155

2021/03/05 10:46:13 AM

156

human rights and the 4th industrial revolution in south africa

UNHRC (UN Human Rights Council) (2011a) Guiding principles on business and human rights: Implementing the United Nations ‘Protect, Respect and Remedy’ framework UNHRC (2011b) Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression: Addendum, Mission to Republic of Korea, 21 March 2011, A/ HRC/17/27/Add.2. Accessed 15 February 2021, https://www.refworld. org/docid/50f3de182.html UNHRC (2011c) Report of the Special Rapporteur on the Right to Food, Professor Olivier de Schutter. Addendum Guiding principles on human rights impact assessments of trade and investment agreements. A/HRC/19/59/Add.5. Accessed 15 February 2021, https:// undocs.org/pdf?symbol=en/A/HRC/19/59/Add.5 t UNHRC (2019) Resolution on the Right to Privacy in the Digital Age (September 2019). A/HRC/RES/42/15. Accessed 10 July 2020, https:// digitallibrary.un.org/record/3837297/files/A_HRC_RES_42_15-EN.pdf Unido (UN Industrial Development Organisation) (2017) Accelerating clean energy through Industry 4.0: Manufacturing the next revolution. Accessed 4 May 2020, https://www.unido.org/sites/default/ files/2017-08/REPORT_Accelerating_clean_energy_through_ Industry_4.0.Final_0.pdf UN Special Rapporteur on Freedom of Expression & Others (2011a) Special Report on the Internet, A/66/290, 10 August 2011 UN Women (2011) Agreed conclusions on access and participation of women and girls in education, training, science and technology, including for the promotion of women’s equal access to full employment and decent work. Accessed 4 August 2019, www.un.org/womenwatch/daw/csw/csw55/ agreed_conclusions/ AC_CSW55_E.pdf Van Harmelen J (2017) Human genome editing with CRISPR-Cas9: South African legal perspective. International Law Office. Accessed 28 February 2020, https://www.internationallawoffice.com/Newsletters/ Healthcare-Life-Sciences/South-Africa/ENSafrica/Human-genomeediting-with-CRISPR-Cas9-South-African-legal-perspective Verhaege J (2018) Data and information utilisation in real-time at the mine stope would alter paradigms. Paper presented at the SA–EU Strategic Partnership Dialogue Conference on Disruptive Technologies and Public Policy in the Age of the Fourth Industrial Revolution, CSIR International Convention Centre, Pretoria (10–12 December)

HSRC 2020 HR and 4IR in SA final.indd 156

2021/03/05 10:46:13 AM

References

157

Warren S & Brandeis LD (1890) The right to privacy. Harvard Law Review 4(5): 193–220, http://www.lawrence.edu/fac/boardmaw/Privacy_brand_ warr2.html Wasserman H (2020) Fake news from Africa: Panics, politics and paradigms. Journalism 21(1): 3–16 Watcher S, Mittelstadt B & Russel C (2017) Counterfactual explanations without opening the black box: Automated decisions and the GDPR. Harvard Journal of Law and Technology 31(2): 841–887 WEF (World Economic Forum) (2016) Global risks report 2016. Accessed 28 February 2020, https://www.weforum.org/reports/the-global-risksreport-2016 WEF (2017a) Accelerating sustainable production. Geneva WEF (2017b) Pathways to Africa’s production future dynamic briefing. Geneva WEF (2017c) Shaping the future of production in South Africa. Country Readiness Hand-out. Geneva WEF (2017d) The future of jobs and skills in Africa: Preparing the region for the Fourth Industrial Revolution. Geneva Western Cape Government (2014) Towards a safer Khayelitsha: Report of the Commission of Inquiry into Allegations of Police Inefficiency and a Breakdown in Relations between SAPS and the Community of Khayelitsha. Accessed 21 December 2020, https://www.westerncape.gov.za/police-ombudsman/ files/atoms/files/khayelitsha_commission_report_0.pdf White C (2019) Chinese companies use Zimbabweans as guinea pigs to identify black faces: Report. Accessed 28 February 2020, https://nationalinterest.org/ blog/buzz/chinese-companies-use-zimbabweans-guinea-pigs-identifyblack-faces-report-101447 World Bank (2019) World development report 2019: The changing nature of work. Washington, DC: World Bank. Accessed 28 February 2020, http://www. worldbank.org/en/publication/wdr2019 Yilma KM (2017) The quest for information privacy in Africa: A review essay. Journal of Information Policy 7: 111–119 Zhang X, Peek W, Pikas B & Lee T (2016) The transformation and upgrading of the Chinese manufacturing industry: Based on German Industry 4.0. Journal of Applied Business and Economics 18(5): 97–105 Zuboff S (2018) The age of surveillance capitalism: The fight for a human future at the new frontier of power. London: Profile Books

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Acts Broad-based Black Economic Empowerment Act (No. 53 of 2003) Companies Act (No. 71 of 2008) Competition Act (No. 89 of 1998) Constitution of the Republic of South Africa, 1996 Consumer Protection Act (No. 51 of 2008) Electoral Act (No. 73 of 1998) Electoral Commission Act (No. 51 of 1996) Electronic Communications Act (No. 36 of 2005) Electronic Communications and Transactions Act (No. 25 of 2002) Employment Equity Act (No. 55 of 1998) Labour Relations Act (No. 66 of 1995) National Credit Act (No. 34 of 2005) National Health Act (No. 61 of 2003) Promotion of Access to Information Act (No. 2 of 2000) Promotion of Equality and Prevention of Unfair Discrimination Act (No. 4 of 2000) Protection from Harassment Act (No. 17 of 2011) Protection of Personal Information Act (No. 4 of 2013) Protective Disclosures Act (No. 26 of 2000) Regulation of Interception of Communications and Provision of Communications-Related Information Act (No. 70 of 2002) South African Human Rights Commission Act (No. 40 of 2013) Telecommunications Act (No. 103 of 1996)

Cases Allpay Consolidated Investments Holdings (Pty) Ltd and Others v Chief Executive Officer of the South African Social Security Agency and Others 2014 (4) SA 179 (CC) amaBhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others 2020 (1) SA 90 (GP) Bernstein and Others v Bester NO and Others CCT 1996 (2) SA 751 Black Sash Trust v Minister of Social Development and Others (Freedom Under Law NPC Intervening) 2017 (3) SA 335 (CC) Economic Freedom Fighters and Others v Speaker of the National Assembly and Another 2017 (2) SA 571 (CC)

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Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others, 2016 (3) SA 580 (CC) Islamic Unity Convention v Independent Broadcasting Authority 2002 (4) SA 294 Minister of Police and Others v Kunjana 2016 (2) SACR 473 (CC) NM and Others v Smith and Others 2007 (5) SA 250 (CC) Qwelane v South African Human Rights Commission and Another 2020 (2) SA 124 (SCA)

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About the authors Fadlah Adams is an advocate and senior researcher for parliamentary and international affairs at the South African Human Rights Commission. Rachel Adams is a chief research specialist at the Human Sciences Research Council, South Africa, an associate research fellow at the Information Law and Policy Centre, Institute of Advanced Studies, University of London, and an editor of the South African Journal on Human Rights. Mark Gaffley is an attorney based in Cape Town, South Africa. He is currently reading for his doctorate at the University of Cape Town where his research interest focuses on ethical concerns relating to the jurisprudence of AI. Michael Gastrow is the acting director of the Science in Society research division at the Human Sciences Research Council, and professor of practice at the DST/NRF/Newton Fund Trilateral Research Chair in Transformative Innovation, the 4th Industrial Revolution and Sustainable Development at the University of Johannesburg. Nokuthula Olorunju is an attorney with an LLM in Information and Communication Technology (ICT) Law, and a doctoral candidate at the Institute of Humanities in Africa, University of Cape Town. Gary Pienaar is an advocate and senior research manager in the Developmental, Capable and Ethical State (DCES) research division of the Human Sciences Research Council. Yuri Ramkissoon is the senior researcher for economic and social rights at the South African Human Rights Commission. Tseliso Thipanyane is the chief executive officer of the South African Human Rights Commission. Shanelle van der Berg is the deputy information officer and senior researcher for equality at the South African Human Rights Commission and a research fellow in the Department of Law at Stellenbosch University.

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Index Note: Page numbers in bold refer to figures and tables 3D printing 13–14 4IR definition xix evolvement 13 human rights 134 predictive policing 41 privacy 39–40 A access to information xxxvii Constitution xxxvii Ecta 29–30 Irsa 122 Paia 93–97 private sector 97–98 accountability xxxi, 133 SAHRC 115–116 ACHPR 7–8 Declaration of Principles of Freedom of Expression in Africa 76–82 ACRWC 25 Adirf 74 principles 74–75 ADM xx, xxxvi, xxxvii predictive policing 45–46 Africa Adirf 74 cybercrime 26–27 development challenges 15 internet access 73 African Human Rights System privacy 25–27 agile governance xxvii, xxix, 81, 129, 131 agriculture 9, 63, 101 AI helpful and harmful technologies xxi human development 15–16 AI nationalism xxv–xxvi AI-led development 17

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AI-supported decision-making (ADM) xxxvii algorithms bias towards women 68 Competition Commission 126 COVID-19 34 decision making 55 functions 69 human rights 57, 99–100 influence on 56 predictive policing 46, 47 apartheid 31, 76 automation decision-making 69 financial services sector 19–20 job losses 18 manufacturing 18 awareness promotion 130 B bias 68 AI systems 70 racial 68 strategies for addressing 70–71 women 68, 71 Bill of Rights xxiv, xxxi–xxxii private sector 98 biometrics surveillance 31 biotechnology 101 agriculture 101 COVID-19 101 C Cambridge Analytica Scandal 124, 137 Cape Town surveillance 73 case studies 43 CCTV technology 76–77 Competition Commission 151–153 data prices 151–153 financial services sector 19–20

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internet access 127–129 persons with disabilities 65–67 SASSA 104–106 self-driving cars 65–67 CCTV technology 49 case studies 52–53 ethics 53 censorship 73 internet 74, 81 laws 31, 33 Centre for 4IR 9 child pornography 25 children 21, 137 in-camera proceedings 55 protection 24, 79 rights 2, 25 China AI xxv Commission 8–9 Companies Act 98, 113, 133 Competition Commission 125 algorithms 126 case studies 127–129 establishment 125–126 mandate 126 Constitution xxx, xxxi, 116–117 access to information xxxvii equality 58–59 human rights xxxi, xxxii Pepuda 59 constitutionalism 110 court rooms COVID-19 53–54 digitisation 53–54 video conferencing technologies 54 COVID-19 8 algorithms 34 biotechnology 101 court rooms 53–54 privacy 34 crime prevention surveillance 49–50 criminal justice system NDP 42–43 cyberattacks 37 cyberbullying 25 cybercrimes 26, 38

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Africa 26–27 Ecta 38 Cybercrimes Bill 38, 131 cybersecurity xxxvii, 16, 22, 26, 31 definition 37 laws xxxvii Cybersecurity Bill 131 D data breaches 37 data ethics 122 data governance xxxv data prices 127–129 data protection 28 impact assessments 35, 71, 133 Popia 28 data rights 24 data sovereignty 135 data trusts 36 DBE curriculum 9 DCDT 9, 63 role 10 decision-making automation 69 Declaration of Principles of Freedom of Expression in Africa xxxvi ACHPR 76–82 internet access 79 internet intermediaries 80–81 media regulation 78 non-interference 80 principles 76–82 SAHRC 131 DHET task team 9–10 digital divide 1, 132 definition 60 gender 60, 63 key responses to 64–65 National Integrated ICT White Paper 63–64 overcoming 63–64 digital industrial policy principles 12 digital justice xxxvi digital literacy 24, 60, 79

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Index digital platforms employment 20 gig economies 20 digital technologies xxi digitisation 9 court rooms 53–54 discrimination xxxvii DSBD technology hubs 12 DSI 33 innovation policies 15 dtic 9 Industrial Policy Action Plan 10–11 role 10 E ECA 30 ecological sustainability 102 Ecta 29–30, 38 access to information 29–30 cybercrimes 38 education 100–101 E-Government Strategy 12 employment 20 equality Constitution 58–59 Pepuda 59 ethics xxi CCTV technology 51 frameworks xxvix, 109, 133 standards xxv F Facebook 104 facial recognition technologies 33, 49 ban 51 fairness xxxi fake news 73, 85–86, 123–124 financial services sector 19–20 automation 19–20 unemployment 19–20 food security 101 foreign direct investment 136 four industrial revolutions xx freedom of expression xxxviii, 75–76 fake news 85

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165 online environment 83–87 UN Special Rapporteur 82–83 Future Production Technology Initiative 11 G GDPR xxxv, 25, 28 legislation 35–36 gender digital divide 60, 63 internet 60–61 Stem 68 General Data Protection Regulation xxxv gig economies 20, 132 GovChat 103 government role regulation of the 4IR xxvi–xxviii group rights 135–136 H hate speech 87–90 Pepuda 87–88 healthcare 101 human rights xxiv 4IR 134 algorithms 57, 99–100 Constitution xxxi, xxxii impact assessments xxv, 35, 111, 113, 119 key implications xxii–xxiv NHRIs 114 predictive policing 41 privacy 23 promotion and protection xxvi human rights-based approach 109 constitutionalism 110 framework 113–114 government role 111–112 impact assessments 112 South Africa 109–110 UN Common Understanding 110 I IEC xxxvii, 122 Code of Conduct 124 establishment 122–123

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fake news 123–124 Irsa 125 key roles 123 supported by SAHRC 125 impact assessments 112 data protection 35, 71, 133 human rights xxiv, 35, 111, 113, 119 in-camera proceedings 55 Industrial Policy Action Plan 10 inequality 42 South Africa 58 innovation policies 15 internet xxxvi Africa, access to 73 gender 60–61 regulation 74 South Africa 61–62 UN Special Rapporteur 82–83 women 61 internet access 127–129 internet governance 133 internet rights 90 accessibility 90–92 responsibilities 90–92 education 154 IoT xix, 31 Irsa xxxvii access to information 122 establishment 120 IEC 125 independence 120–121 Popia 112 L job losses 18, 133 K Khayelitsha Commission 48 King IV™ report xxxv, 39 L legislation GDPR 35–36 privacy 52–53 local government 102

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M manufacturing automation 18 media regulation 78 metadata surveillance 31–32 migrant workers 31 N National Integrated ICT Policy White Paper 10, 30 digital divide 63–64 national state of disaster 34 NDP criminal justice system 42–43 NHRIs human rights 114 Paris Principles 116 role 114 social media 91 O OECD Principles 6–7 official languages 103, 132 Open government Partnership 97 P Paia 50, 56, 93–94 access to information 93–97 legislative amendments 130 limitations on disclosure of information 44, 50 proactive disclosure 96–97 requirements for modernisation 95 Paris Principles NHRIs 116 Pepuda Constitution 59 equality 59 hate speech 87–88 personal data 16 personal information 38 Popia 44–45 persons with disabilities case studies 65–67 Popia xxxx, 24, 27, 36, 39, 50, 56

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Index data protection 28 Irsa 112 legislative amendments 130–131 personal information 38, 44–45 predictive policing 45–46 privacy 27–28, 29 predictive policing xxxv 4IR 41 ADM 45–46 algorithms 46, 47 definition 46 human rights 41 misconceptions 49 Popia 45–46 research 47 privacy xxxv, 135–136 4IR 39–40 African Human Rights System 25–27 COVID-19 34 definition 35 human rights 23 legislation 28–29 Popia 27–28, 29 Rica 32–33 UNHRC 23–24 Universal Declaration on Human Rights 22–23 private sector 97, 136 access to information 97–98 Bill of Rights 98 relationship with public sector 136–137 proactive disclosure 96–97 Protection of Personal Information Act xxxv public participation xxxiii, 54, 103, 109, 132 public sector relationship with private sector 136–137 public trust xxxvi public–private partnerships xxxvii, 11 R racial bias 44 regulation of the 4IR xxvi

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167 government role xxviii–xxx Rica 29, 46 privacy 32–33 S SAHRC xxxvii accountability 115–116 advisory committees 120 Declaration of Principles of Freedom of Expression in Africa 131 key roles 21, 118–119, 122 mandate 115, 117 statutory powers 117 supporting IEC 125 SASSA case studies 104–106 Schwab, Klaus xxviii security firms surveillance 33 self-driving cars case studies 65–67 service delivery 102 SMEs 10 social media xxxvi, 137 NHRIs 91 women 61 socioeconomic rights 99–102 South Africa xxxiv Commission 8–9 inequality 58 internet 61–62 South African Human Rights Commission Act 116 Stem 68, 132 scholarship programmes 133 surveillance xxxv, 16 biometrics 31 Cape Town 49 crime prevention 49–50 metadata 31–32 security firms 33 UNHRC 24 Sustainable Development Goals 3 targets, indicators and role of digitisation 4–5, 6

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T technology hubs 12 transparency xxx

V video conferencing technologies court rooms 54

U UN Committee on the Rights of the Child 2 UN Common Understanding principles 110–111 UN special rapporteur 113 freedom of expression 82–83 internet 82–83 unemployment financial services sector 19–20 UNHRC 2 privacy 23–24 surveillance 24 Universal Declaration on Human Rights 22–23

W WEF xxviii, 3, 101 Affiliate Centre for 4IR 9 White Paper on Policing 43 White Paper on Safety and Security 43–44 White Paper on Science, Technology and Innovation 9 women algorithms 68 bias 68, 71 internet 61 social media 61

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