Right2Know Campaign

Briefing: What’s wrong with the FPB censorship Bill and FPB’s online regulations

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​This week the Right2Know Campaign made submissions to Parliament on the Films & Publications Amendment Bill. This comes after the FPB published final regulations for online content. This briefing note, ​prepared by R2K’s Micah Reddy, unpacks the Bill, and the FPB’s new regulations — and the risks they may pose of internet censorship in South Africa. The Films and Publications Amendment Bill was gazetted last year and is currently before Parliament​ – and open for public comment until 26 May​. Download R2K’s submission on the Bill.

Contents

Background & Context

State censorship was a crucial way in which the apartheid regime maintained control and restricted dissent. During apartheid books, plays, music and films that were considered “subversive” were banned and newspapers that were critical of the regime were shut down (for example, see: Black Wednesday).

In order to censor, the apartheid-era Publications Act used sweeping definitions of what was “undesirable”. If something was deemed “blasphemous” or “harmful to public morals” or prejudicial to “good order” and so forth, it could be banned.

With the coming of democracy, the apartheid system of censorship was dismantled. In the 1990s the Films and Publications Act (FP Act) was passed and the Film and Publications Board (FPB) was instituted as a statutory body. The FPB replaced the apartheid censors. Its duty has been to classify, not censor; to inform people of the content of films and certain other publications (though “publications” is vaguely defined) under the slogan “we inform, you choose”. The FPB’s tasks used to be quite straightforward and it was concerned with traditional media, especially applying age restrictions on films and videos.

But with the expansion of internet connectivity in South Africa the FPB’s role became a lot less certain. Suddenly, we were downloading and uploading all sorts of content, watching movies and videos from around the world on our cellphones, generating our own content and streaming it on social media and blogs and so forth. For South Africans who can afford to be connected to the internet, the amount of content that is available at their fingertips is limitless. Take Youtube for example: hundreds of hours of video are uploaded every minute! And with digital convergence – the movement of content onto new platforms and ability to interact with the same multimedia content on different devices – the ability of the FPB to classify and enforce its regulatory power has been undermined further.

In response, the FPB wants to give itself greater authority to regulate online content. It claims that this is necessary to combat harmful content online such as racism and hate speech, and in particular to protect children from “child pornography” (a more appropriate term would be “child abuse content”). Like during apartheid, the FPB is feeding into a moral panic and using the pretext of protecting to public to implement a system that would lead to internet censorship. The FPB has also been sharing experiences with other classification and censorship bodies in other parts of Africa, such as the Kenyan censors who have a notoriously homophobic agenda (Right2Know has submitted a PAIA request for information of the MOU signed between the FPB and its Kenyan counterparts).

In March 2015, the FPB released its draft online regulations which Right2Know has said amount to an attempt to censor the internet. After a round of public consultations, the FPB has now amended its regulations, though they still contain serious flaws. In order to bring the regulations in line with the law, the government has also gazetted an amendment bill to amend the Film and Publications Act, which governs the functions of the FPB, and make the Act applicable to online content. The Films and Publications Amendment Bill was gazetted last year and is currently before Parliament. Download R2K’s submission on the Bill.

The Film and Publication Board’s 2016 regulations for online content (revised regulations)

The initial regulations have been considerably revised and are no longer presented in draft form. This document will deal specifically with the revised regulations. See more on the initial draft regulations here.  So what’s in the FPB’s new regulations?

  • Improvements on 2015 draft regulations:

The 2016 revised regulations are much less heavy-handed but still require that all online films or games distributed or to be distribution in South Africa must be classified prior to distribution

  • Distributors must register and pay:

The Board requires online content distributors to register with it in order to distribute online films and games. They will have to pay the registration fee and possibly other fees to be determined by the Minister

  • Permits:

The regulations state that until the law is amended to “allow for the practical regulation of online content”, the Board will issue exemption permits that will apply to certain “classes” of films or games. These permits will be subject to conditions set by the Board.

The permits will be based on agreements between Board and distributor, and the agreement will state that the online distributor is exempted from submitting films and games for online distribution to the Board for classification. Distributors will either have to classify content themselves in accordance with a classification system accredited by the Board, or through self-classification after undergoing training with the Board and using the Board’s Classification Guidelines.

  • User-generated content:

In an improvement from the previous regulations, the Board now acknowledges that without the sort of surveillance and censorship system that the Chinese state uses, it is impossible to regulate and classify all user-generated content (UGC), most of which is produced and hosted in foreign countries and distributed from those countries.

The Board, however, will be allowed to regulate specific instances of UGC where, for instance, a complaint is received or a publication contains sexual conduct which violates or shows disrespect for the right to human dignity of any person, degrades a person, and so forth.

  • Powers:

The Board will be able to issue a “classify” or “restrict” access notice to content providers/distributors and order that offending content be taken down; classify content and review original classification decisions; lay criminal charges where appropriate; conduct audits of content that is supposed to be classified; and revoke the license to self-classify and exemption permits and order that all content by the offending party be sent to the Board for classification

What’s still wrong with the FPB regulations?

  • The regulations are still too sweeping and vague

For example: the regulations apply to any person who distributes or exhibits any film or game or certain publications in South Africa. The policy does not distinguish between major players like international video streaming companies such as Netflix and minor players like a person with a multimedia blog. The usage of terms like “distribution” and “content” is unclear – exactly what content needs to be classified and what doesn’t? And what are the cost implications? Will small players be charged the same as big ones? (The Minister has already set the price of license fees for online distribution at nearly R800,000.)

Where free expression is at stake, overly broad and poorly defined wording creates potential for abuse. Definitions and wording need to be very specific because any regulations that might limit free expression must be tightly defined.

  • It is still impractical and costly

The regulations still attempt to regulate content in SA and elsewhere without the necessary capacity to effectively do so. Effective classification of online content is hugely costly and requires large numbers of people to be employed to oversee, enforce and train – energy and resources that could be better spent elsewhere (for instance, in promoting digital literacy to empower people to protect themselves online).

  • It is still unconstitutional

The requirement to register with the FPB and to pre-classify (I.e. demanding that publishers first withhold content to ensure it meets the Board’s standards) is a form of censorship. It restrains the free flow of information and violates free expression and the right to both impart and receive information. These are constitutionally enshrined rights. The Constitutional Court has found this form of pre-publication censorship to be unacceptable with regards to newspapers and publications governed by the Press Council – that those entities should enjoy the right to ‘publish and be damned’ (i.e. be free to publish but suffer the consequences of expression that is not constitutional). Why should things be different with online distributors and users? If you publish something illegal (like child abuse content) you would have committed a criminal offence, but you are not guilty until you have committed a crime. As the Constitutional Court has said: “the free flow of constitutionally protected expression is the rule and administrative prior classification should be the exception.”

What’s wrong with the new Films and Publications Amendment Bill?

This new Bill seeks to amend the Film and Publications Act to make it applicable to online content. It has to be read together with the FPB’s new regulations. Parliament has invited public submissions on the Bill until 26 May – download R2K’s submission on the Films & Publications Amendment Bill here. So what’s wrong with it?

  • Again, vague definitions

The Bill contains a number of over-broad definitions, e.g. ‘online distributor’ and ‘distribution’, ‘publications’, ‘child pornography’ as well as the overlapping definitions of ‘film’ and ‘digital film’. The definition for ‘digital film’ for example is so broad that it would include any video uploaded, including Vines, GIFs, and snippets of personal videos.

  • Could penalise small publishers and ordinary users

The definition of online distributors of content is vague: “…a person who conducts business in the selling, hiring out or exhibition of films including the streaming of content through the internet, social media and other electronic mediums’’. That wide definition catches a lot of different individuals and entities in its net. It could mean just a small-scale user, and there is nothing to distinguish between “distributors” who can afford to pay and those who can’t.

  • It will create confusion in regulation

Content streamed online by broadcasters that are regulated by ICASA will be subject to the authority of the Board. So if a TV station regulated by ICASA now shows its programmes online and is deemed “non-compliant” by the Board, ICASA could be compelled to not renew that TV station’s license.

  • It is unconstitutional and ultra vires (it goes beyond its legal boundaries)

Importantly, by forcing ICASA to cancel licenses for non-compliance the Bill is unconstitutional (in terms of s192 of the Constitution)

  • It could duplicate offences in other legislation

Other proposed legislation for governing the internet (e.g. the draft Cybercrimes and Cybersecurity Bill) is currently in the pipeline. The Bill will create confusing overlap and duplication of offences in legislation such as the draft Cybercrimes Bill (which deal with, among others, issues of hate speech, racism and child abuse material on the internet)

  • It could lead to invasion of privacy and threaten legitimate sexual expression

Distributors of adult content are compelled to keep registers of all instances where access was granted to a user, whose name, address and verifiable age must be noted in a register. This information could easily fall into the wrong hands, and adults should have the right to remain anonymous when it comes to legitimate sexual expression. In other countries on the continent we have seen people “outed” and persecuted for their sexuality and in South Africa there is a great deal of homophobic and anti-LGBTI sentiment.

– Micah Reddy, R2K organiser on media freedom & diversity, 25 May 2016

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