Public officials shoudn't be allowed to 'block' on social media. Here's why...
Some cynical public officials block social media users who hold or express divergent political views from their social media account timelines.
In this always-connected internet age, digital technologies are transforming the way basic rights such as freedom of expression, access to information, and active participation in open democratic discourse are exercised, protected and violated, and are also leading to the recognition of new rights.
Also, technology diffusion provides internet platforms that enable legislators to conduct their business remotely (virtual sitting of Parliament and its various committees), including engaging with the public on matters related to politics, policy formulation, and development of legislation. Popular social media platforms such as Twitter and Facebook are the terrain on which digital active citizenry and fierce contestation of rights occur.
Our law hasn't sufficiently adapted to this new era with the development of digital rights and digital citizenship, allowing and regulating access to online information in a secure, transparent, and inclusive manner congruent with the ethos of our open democratic dispensation. At a very minimum, the constitutional right of freedom of speech seems to have not been asserted nor vindicated through the courts.
Let me explain.
Most, if not all, South African politicians, legislators, and public functionaries (public representatives, collectively) use social media platforms, especially Twitter, to engage in political debate and/or to interact with the public on matters related to their official duties.
Twitter, once considered a non-traditional forum for public discourse, is not just a ubiquitous official channel of communication for most public representatives but has become their most important, and effective channel of communication.
Public representatives' social media accounts, Twitter in particular, are now among the most significant forums for discussion of government policy, service delivery related activities, and general dissemination of information to the public.
However, some cynical public officials block users who hold or express divergent political views from their social media account timelines. In most instances, this is done not only to suppress criticism and to stifle public political debate but, crucially, as a way to evade public accountability and transparency – fundamental pillars of our Constitution.
Cardinal principles of public accountability and open democracy – the bedrock of our constitutional framework - demand that no one be excluded from engaging on public forums simply because they hold divergent viewpoints to public representatives. Put differently, public representatives aren't insulated from public criticism nor are they allowed to discriminate on the basis of divergent political viewpoints or association while using public forums to conduct their office or advance political views.
This conduct (blocking users on social media platforms) appears to be in contravention of sections 16 (b) and 32 (a) of the Bill of Rights of the Constitution. There may be further infringements of the Constitution and/or affronts to other laws.
There doesn't seem to exist a precedent in our jurisprudence or pending litigation aimed at enforcing the abovementioned rights.
It appears that the only source of legal authority available is that from a foreign jurisdiction of the United States Court of Appeals for the Second Circuit based in New York in the matter between Knight First Amendment Institute at Columbia University, et al (Plaintiffs-Appellees) and Donald J. Trump, then President of the United States of America, et al (Defendants-Appellants).
In this case the Court was required to consider whether a US public official may, consistent with the US Constitution’s First Amendment, “block” a person from his or her Twitter account in response to the political views that person had expressed, and whether the analysis differs because that public official was the President of the United States.
In his submissions to the Court, Trump tellingly asserted that he, with the assistance of his co-defendant Daniel Scavino, erstwhile White House director of social media and assistant to Trump, used the account frequently “to announce, describe, and defend his policies; to promote his administration’s legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicise state visits; [and] to challenge media organisations whose coverage of his administration he believed to be unfair.”
In what can only be described as a judicial smorgasbord of scathing legal opinions, the Court ruled against Trump and Scavino. It ordered them to unblock anyone affected by their pernicious social media conduct.
Perched atop the list of South Africa’s perennial Twitter "blockists" are transport minister Fikile Mbalula; MPs Julius Malema and Natasha Mazzone; Gauteng education MEC Panyaza Lesufi; and police minister spokesperson Lirandzu Themba.
While these public representatives are wont to unload on their online political protagonists, they appear to be thin-skinned and fickle when the favour is returned.
For perspective, in 2018, then Democratic Alliance party chief whip and current Member of Parliament (MP) Natasha Mazzone evoked public criticism with her appropriation of blackness when she claimed or, rather, insinuated that her father was black and by extension had endured discrimination from the apartheid system.
Criticism
Mazzone's ill-timed and insensitive comments failed to appreciate what it actually meant to be black during apartheid. Pertinently, blackness, or rather "colourism", was a political tool used by the apartheid system to subjugate, denigrate, malign, dehumanise, and bludgeon people of a darker hue.
In short, Mazzone had claimed that her father – "a hard-working European male who didn't benefit from apartheid-era entrenched white privilege and head start - built himself up from nothing to make a good life for his family [in spite of the racial discrimination he was subjected to]."
Of course this was a right royal, white lie. Pun intended!
In an essay, I published in the City Press of May that year and on Twitter, I sharply criticised Mazzone for her political ignorance and challenged her claims of her father’s "blackness" and being discriminated against.
After a fleeting, fiery exchange on Twitter, Mazzone opted for the easy way out and blocked me from her Twitter timeline.
As a public representative, blocking me from her Twitter account simply because I was disagreeable is patently a violation of my constitutional right to freedom of expression and to engage in political discourse on public forums with my public representatives.
For as long as the practice of blocking disagreeable Twitter users by public representatives is prevalent and unlikely to abate, constitutional rights will continue to be trampled upon.
Politicians and functionaries like Mbalula and Themba block users who simply demand public accountability and service delivery.
Public Interest SA is currently soliciting a legal opinion on this insidious practice by public representatives of discriminating and excluding those who hold divergent views from engaging them in public discourse on Twitter. We have requested our attorneys to help set forth our arguments of law and the relevant legal points raised by this nefarious conduct.
To the extent that there may not exist legal precedent in our jurisprudence, we will set forth on a campaign to enforce the public's constitutional rights while seeking to partake in public discourse through digital platforms.
Just as a precedent was made in the US, the time is nigh for our apex Court to consider whether a public representative may, consistent with the foundational values of our world-acclaimed Constitution, “block” a person from his or her Twitter account in response to the divergent political or other views that person may hold.
Until the ones and zeros of public accountability and equity are vindicated, ours shall but remain a skewed, discriminatory, and inequitable democracy.