ALGORITHMS, MARKETING AND THE CONSTITUTION: A DIGITAL TUG OF WAR
Introduction
South Africa's media industry is under pressure. Traditional publishers are losing advertising revenue, and global digital platforms like Google and Meta are increasingly dominating both content delivery and online advertising. In response, the Competition Commission has launched the Media and Digital Platforms Market Inquiry (MDPMI), investigating whether tech giants are unfairly benefitting from local content without fairly compensating the creators.
However, this goes beyond economics. At the heart of the debate lies a legal balancing act: Can we regulate the market without restricting freedom of expression?
The Landscape
South Africa’s Competition Act 89 of 1998, particularly Section 2, mandates the promotion of fair competition and equitable participation in the economy. The MDPMI is currently analysing whether or not dominant platforms are:
Prioritising their own services over those of local publishers;
Failing to compensate media houses fairly for the use of their content; and
Operating opaque advertising models that disadvantage smaller players.
These concerns are not unique to South Africa as similar debates have played out in Australia, Canada, and the European Union.
The Freedom of Expression Dilemma
While economic regulation is necessary, Section 16 of the Constitution guarantees freedom of expression, including freedom of the press. If regulators start telling platforms how to rank or promote news content, they risk interfering with editorial autonomy even when that “editor” is an algorithm.
The legal risk is that well-intentioned competition rules could be challenged as unconstitutional if they limit expression or favour certain publishers over others. Any such limitation would need to pass the test of Section 36, the Constitution’s limitation clause which requires that restrictions be reasonable, justifiable, and proportionate.
Striking a Legal Balance
To protect both competition and free expression, regulators should consider the following:
Focus on transparency: Platforms should disclose how their ranking and advertising algorithms work without dictating what content must appear.
Support voluntary licensing models: Instead of mandating payments, encourage tech companies to strike fair commercial deals with publishers.
Avoid editorial interference: Regulators should steer clear of directing content decisions or rankings. That’s where freedom of expression is most vulnerable.
Collaborate across regulators: A joint approach involving the Competition Commission, Information Regulator, and civil society could promote accountability while respecting rights.
Conclusion
The Competition Commission's inquiry is timely and vital. The digital economy must be fair, especially to South African media outlets that serve the public good. However, this fairness must not come at the cost of freedom.
As new rules emerge, lawmakers and regulators must ensure they protect both economic inclusion and the constitutional right to free expression. Getting it wrong could silence the very voices we’re trying to empower.
Written by Garion Malherbe
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