Cellphone giants MTN and Vodacom are taking Icasa to court over the communication regulator's plans to slash mobile termination rates.
The two companies approached the Johannesburg high court on an urgent basis to stop the Independent Communications Authority of South Africa (Icasa) from implementing a regulation on mobile termination rates. They have complained about the process followed, and how the proposed rates have been decided.
As yet, no one appears to have asked questions about how this complaint is consistent with a rights framework, and what the implications of the constitution are. Is there a right to communicate? And if there is, what are the implications of the refusal to lower the costs of communication?
The original basis for a human right to communicate derives from the Universal Declaration of Human Rights (United Nations, 1993), adopted in 1948. The centerpiece of the declaration with regard to communication is Article 19, which states:
"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." (United Nations, 1997)
Article 19 is buttressed by two other articles. Article 27 section 1 states:
"Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits." (United Nations, 1997)
The right to communicate can be seen a basic universal human right. Rights are basic "only if enjoyment of them is essential to the enjoyment of all other rights" . The exercise of other rights is not possible if it compromises a basic right; indeed, other rights may have to be sacrificed to preserve a basic right.
However, recognition of communication as a universal basic right has only been seriously discussed in the context of significant technological innovation.
The rights to information and freedom of expression are not just for rich people. Amnesty International in its latest report put it this way:
We can demand that states ensure that all the people they govern have meaningful access to the digital world – preferably through high-speed and truly affordable internet access whether via a portable hand-held devise such as a mobile phone, or a desktop computer. In doing so they would be fulfilling one of the principles of human rights as articulated in Article 15 of the International Covenant on Economic, Social and Cultural Rights: “To enjoy the benefits of scientific progress and its applications.” And Article 27 of the Universal Declaration of Human Rights says: “Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.”
How does this relate to the case in hand? The two companies are basically litigating to keep a regulated cost higher. The regulator wants the cost to be lower. A lower cost is a more reasonable and justifiable limitation on the right to communicate, if we agree it exists. The question of dignity is always central in our constitution. It seems to us that the ability to connect with other people in order to live in the world we find ourselves is becoming more and more fundamental. Will the court, and the parties, consider this in this case?