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The Fourth Industrial Revolution (4IR) has brought in its wake massive technological changes and development, and South Africa has not been exempt. The country has to, inevitably, start adapting its legal and regulatory frameworks to accommodate the 4IR.

It’s for this very reason that the Presidential Commission for the Fourth Industrial Revolution was appointed in April 2019. Its objective is to co-ordinate the development of the country’s national 4IR response action plan. The commission, which is chaired by President Cyril Ramaphosa, is mandated to identify policies, strategies and plans that are needed to position South Africa as a leading country in the 4IR sphere.

While the plans – which include identifying opportunities for South Africa, as well as a re-examination of existing legal and regulatory frameworks – look good on paper, the process is set to be highly complex. To understand this complexity, we need to look at the opportunities the 4IR brings with it, and the accompanying regulatory implications.

Technological convergence and emergence

In its wake, the 4IR introduces two avenues through which cross-sectoral collaboration will be recognised: technological convergence and emergence.

Technical convergence can be described as the ‘joining’ of previously separate and unrelated technologies to create new, integrated and advanced systems. A perfect example of technological convergence is Uber: it has been developed to converge separate technologies (such as geolocation, cashless payments, real-time fare calculations, messaging, and push notifications) into a single, integrated technology: a ground-breaking ride-sharing app.

Emerging technologies are technologies whose development, applications and potential have yet to be realised. In other words, these are technologies that have potential to completely change the way we live, but are still in their nascent phase. These technologies include nanotechnology, biotechnology, cognitive science, psychotechnology, robotics, artificial intelligence (AI), virtual reality (VR), and blockchain, to name just a few.

The legal implications of these new technologies

While these technologies have the potential to profoundly affect the future, convergence and emergence of technologies present highly complex challenges for policy makers, legislators, lawyers, scientists, and even society. The intersectional nature of the 4IR will require solid, yet flexible, legal and policy frameworks which can speak to different sectors. However, this is not a straightforward task. For example:

  • The case of the driverless car that hit and killed a pedestrian in the U.S. in 2018 highlights the overlap of accountability and responsibility between the stakeholders involved, i.e. manufacturer and AI developer.

This, along with many other cases, is an indication of the challenges that loom large, and warns of the possible threats these developments could pose.  

The need for cross-sector collaboration

Governments and regulators alike need to shift from a vertical model to a collaborative one, as most current models no longer work due to the rapid changes within the ICT landscape – yet regulators remain behind with the times. Collaborative regulation involves a number of factors, such as effective co-ordination between stakeholders, the sharing of knowledge and resources, as well as locating possible regulatory overlaps.

Analysts warn that there’s no single answer, however, and a bottom-up approach will be needed, along with experimentation and risk-taking to find what works. Most importantly, regulators will need flexibility, as well as adopting a ‘light touch’ when it comes to easing regulations to advance progress, especially when it comes to app development. Analysts further point out that over-regulation, or incorrect regulation, has the potential to impede technological growth. 

A collaborative regulatory environment is essential; a case study in this regard is Egypt’s National Telecom Regulatory Authority (NTRA), which has – through trial and error – explored national collaborative regulation efforts, which range from telecommunication market players to academia, as well as the national consumer protection authority and working with regional bodies.

The benefits of cross-sector collaboration

Cross-sector collaboration has many benefits: it can be a springboard for ICT development and a boon for consumers (as the ITU points out, a collaborative approach keeps market factors in mind, as there’s a strong focus on efficiency, quality of service, freedom of choice, and consumer rights). In fact, when implemented correctly, collaborative cross-sector regulation can benefit competition and the economy as a whole.

Successful collaborative approaches include Brazil’s sandbox regulatory model (where major government and financial authorities have teamed up to explore new regulatory frameworks for the likes of blockchain), as well as Mexico saving $1,27 billion per year on wages, pensions and social transfers by digitising and centralising its payments to all government workers.

The approach that South Africa needs to take

Strategic triangle theory states that a good policy should be technically correct, politically stable, and organisationally implementable. Most importantly, regulation needs to be highly adaptable due to technologies – both convergent and emerging – continuously changing.

Like much of the world, the current regulatory landscape in South Africa is not adapted to new technological challenges, and slow adaptation is one of the major issues faced by regulatory leaders around the globe. Therefore, the country will need to design a flexible governance system that can handle both future benefits and the risks of emerging technologies, as well as close gaps – however, it does put limits on how specific frameworks can be formulated.

Regulatory bodies need to ditch the red tape and adopt an innovative business-model mindset: they need to be able to develop a regulation, test it, iterate it, and pivot if need be. Instead of going through a protracted legislation process, they should quickly test their ideas through trial and error – this means that a feedback loop needs to be in place, and regulation needs to shift from input-based to output-based.

They also need to consider the five principles for regulating emerging technologies, which include reviewing what’s already in place, updating anything that’s past its sell-by date, and choosing the right approach, as well as to ask the right questions.  

There’s no reason for stakeholders to leave new technologies completely unchecked, but neither should they have a heavy-handed regulatory approach. While it’s a complex and challenging task, a flexible, testable regulatory approach is needed: failure to adapt will result in moving backwards, instead of advancing toward the future.

Pygma Consulting is a Johannesburg-based firm that specialises in ICT policy, regulatory and strategy advisory, and compliance across Africa. Pygma Consulting also has extensive experience in the broadcasting policy and regulatory landscape. Contact us at info@pygmaconsulting.com