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Non-profit withdraws court application to compel MTN to zero-rate approved websites

MTN’s lawyers provided a letter to DGMT’s legal counsel confirming that 39 government-approved educational websites would be zero-rated by the end of 22 July 2020. (Photo: EPA / Kim Ludbrook)

The DG Murray Trust has withdrawn its court application to compel mobile network operator MTN to zero-rate the 39 local educational websites of public benefit organisations that were officially approved by the Department of Basic Education earlier in 2020, but had not yet been actioned. It seems, however, that at the time of the court application last week, MTN had already zero-rated 8 of the 39 websites it had committed to.

Last week, The DG Murray Trust (DGMT) launched a court application to compel MTN to zero-rate the local educational websites of public benefit organisations (PBOs) that were approved in early May 2020 by Minister of Basic Education Angie Motshekga.  

The application followed three months of engagement between DGMT and South Africa’s three largest network operators – Vodacom, MTN and Telkom Mobile – urging them to zero-rate these sites as a matter of urgency to ensure access to educational resources for less fortunate learners during the Covid-19 lockdown.

Earlier during the lockdown, the Internet Service Providers’ Association of South Africa (ISPA) announced it had issued a call for Internet Service Providers and other Information Technology companies to take steps to support internet users engaged in online education.  

This meant that all South Africans were able to access these websites over fixed or mobile data as long as the country remains in a coronavirus-related State of National Disaster. 

The agreement followed the protracted discussion between the Competition Commission and mobile operators after the Commission initiated the Data Service Market Inquiry (DSMI) and published its final report with findings and recommendations earlier in 2020. 

Remedial steps included zero-rating educational traffic, temporarily increasing data caps for selected customers and providing free lifeline data to consumers.

More recently, IPSA stated that more than 1,000 local websites have already been zero-rated or are currently in the process of being zero-rated. The organisation maintains a full list of zero-rated websites in South Africa, which is updated every Monday.

An application for zero-rating for educational purposes must be approved by the Department of Basic Education or, Department of Higher Education and Training, and a list of 39 PBO educational websites were approved earlier in 2020. 

According to a press statement released by DGMT last week, only Telkom and other fixed-line operators had zero-rated all the PBO sites and that Vodacom had started to comply, and as of 14 July 2020, had zero-rated 19 of the PBO sites. 

It also claimed that MTN was unresponsive, stating the telecoms giant said they had been instructed by the government to prioritise universities, TVET colleges and then schools – “leaving little prospect of zero-rating of PBOs for the foreseeable future”.  

It is for this reason that Dunster Attorneys Inc, acting on behalf of DGMT, had applied to the Western Cape High Court for the case against MTN to be heard on 3 August 2020, but the application has now been withdrawn.

Jacqui O’Sullivan, Corporate Affairs Executive at MTN, says the company is diligently working through the list of 980 approved URLs, but “the coding, vetting and security checking process is complex and we can therefore only complete the zero-rating of a limited number of sites a week,” she says. 

DGMT launched the application on the grounds that the poorest children, who do not have access to online education in their schools, but could benefit from the digital educational resources of PBOs, should not be pushed to the back of the queue in terms of the order in which websites are zero-rated.

David Harrison, CEO of DGMT, says there are at least 50 PBOs whose life’s work is to reach the poorest children with learning resources, books, stories, language and maths. Many have designed their digital content to reach children and young people living in the poorest communities, delivered in bite-sized chunks and supported by SMS or basic chat functions. These PBOs include Nal’ibali, FunDza, Funda Wande and SmartStart.

MTN responded to Business Maverick’s queries with an official statement, confirming that: “MTN along with the other operators, is working with the Department of Basic Education and the Department of Communication and Digital Technologies to zero-rate the URLs that are approved through the Project Management Office (PMO) that has been formed by these two national departments.

“The PMO first prioritised Universities and TVETs and has now directed the operators to prioritise schools.”

Jacqui O’Sullivan, Corporate Affairs Executive at MTN, says the company is diligently working through the list of 980 approved URLs, but “the coding, vetting and security checking process is complex and we can therefore only complete the zero-rating of a limited number of sites a week,” she says. 

“Our efforts have been aligned with that of the government to ensure that students are able to access online educational resources to continue their studies during this difficult time. While we have zero-rated a number of public benefit websites, our priority has been on schools, adding PBOs where possible. 

“MTN has already zero-rated 648 URLs of the 980 approved by the government with more being added each day. 

“Any claims that MTN has not been responsive to the requests from the government in this zero-rating project have been made in extraordinarily bad faith and are a misrepresentation of the facts.” 

Adds O’Sullivan: “On the day the DGMT chose to threaten MTN with legal action, the latest report to the PMO would have shown the DGMT that 8 of the 39 URLs had already been zero-rated, as part of the ongoing process.”   

After confirming its intention to defend, MTN’s lawyers – Webber Wentzel – provided a letter to DGMT’s legal counsel confirming that all 39 websites would be zero-rated by the end of 22 July 2020.  

“We are thrilled with MTN’s accelerated action to zero-rate the websites of PBOs”, says Harrison. “This means that many more poor children will have access to stories, language and maths. It is a strong recognition that PBOs play a crucial role in education in South Africa.”

“On the basis of MTN’s response, DGMT has notified MTN’s lawyers of its intention to withdraw its application,” Harrison adds.   

“We trust the application will be withdrawn, if not, it will be opposed as previously confirmed,” says O’Sullivan, adding that “the zero-rating project requires much time, effort, focus and monitoring, to deliver successful results in the form of free access to health and education sites. 

“This is where our attention needs to be focused, not dealing with a vexatious action that will waste the court’s time and therefore we have acceded to the demands of the DGMT, at the cost of the schools that had been scheduled to have been zero-rated in this period. We are doing all we can to make up those URLs so as not to disadvantage the schools that had to take a backseat to this matter,” says O’Sullivan. 

DGMT says it will keep monitoring the zero-rating of public benefit organisations to ensure full compliance by all network operators. DM/BM

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