On 26 May 2016, Media Monitoring Africa (MMA) and SOS: Support Public Broadcasting Coalition (SOS) put forward a formal written submission on the Film and Publication Amendment Bill, as invited by parliament. As its name implies, the bill aims to amend certain sections of the Film and Publications Act. Importantly for us, it looks to broaden the scope of the Act to include the regulation of digital content. While MMA and SOS both see the need for legislation to be brought in line with the new digital reality and the dangers thereof, we argue that the bill in its current form may obstruct the potential growth and opportunities offered by the internet.

The following unpacks in more detail the legislation and the Amendment Bill as they currently stand as well as presents our position on the Bill with our recommended suggestions and changes.

The Film and Publication Act: Background

The Film and Publications Act, no. 65 of 1996, provides the legislative framework to classify films, games and publications. The Film and Publications Board (FPB), as the statuary body defined in the Act, is the institution that carries out such classifications in South Africa i.e. the FPB are the group that advise whether a program is suitable (or not) to those in a certain age group (younger than 16 years old etc.) and why they think so (strong language, violence, graphic sex etc.).

This Act was a deliberate move away from the Apartheid-era censorship that saw the government in complete control of the content that was broadcast. The FPB therefore aims to supply the public with all the necessary information for them to make their own choice about what films they watch or what games they play.

What does the Amendment Bill look to change?

The Film and Publications Amendment Bill aims to update and modernize the existing legislation: (1) to change certain terms and definitions, (2) to further criminalise activities related to “child pornography” (see note on definitions below) and (3) to extend the regulatory powers of the FBA and the FPB to include digital content. It was formally introduced to parliament on 30 November 2015 and interested parties were given until 26 May 2016 to submit their thoughts and recommendations.

See the full Amendment Bill here:
http://www.parliament.gov.za/content/b%2037%20-%202015%20(films%20&%20publications)~1.pdf

What did we think?
The internet revolution has brought about a myriad of changes to the ways in which the world operates. We recognise that the government has the unenviable task of developing legislation that both mitigates against the potential threats online but that which also promotes freedom of expression and facilitates the widespread and constructive use of the internet. As it stands, we feel that the Amendment Bill focuses almost exclusively on the risks and dangers (such as cybercrime) and downplays how people’s access to the internet is a facilitative right and is integral to us realizing our development potential. We therefore offer multiple recommendations and suggestions in our parliamentary submission. To find our full submission, follow this link:  http://bit.ly/2cvMB2F

For the purposes of brevity, we will focus on three core issues here.

Powers of the FPB
One of our biggest concerns is that the Amendment Bill in its current form seeks to extend the powers of the FPB in such a way that seems to infringe on multiple sections of our Constitution. Specifically, if this Bill were to be legislated, only content that is classified by the FPB would be permitted online. In our view, this system of pre-publication classification is not only impractical but also violates people’s rights both in terms of access to information and in terms of freedom of expression. In our current digital age, this type of regulation would be an express form of online censorship and in MMA’s opinion, could not be found acceptable or appropriate in our context.

The Bill also seeks to provide the FPB with seemingly absolute power. We argue that none of the authorities established under the FPB Act or those that were put forward in the Bill are sufficiently independent autonomous institutions to allow for a free unbiased regulatory broadcasting body. Currently, the FPB Council is appointed by the Minister and our concern is that government, if the Bill passed, would have access to potential interference with online content, which in our view, is unconstitutional.

The impact on user-generated content
One of the primary sources of confusion in the Bill relates to definitions around ‘ online distributor’, ‘content’, ‘digital film’ and ‘conducts business’, among others. The definitions provided for these terms cloud exactly what type of content needs to be classified and what groups are involved. For example, the Minister has already suggested that those that “conduct business” with digital content could pay as much as R800 000 for their “license fee”. But the Bill remains unclear as to who can be defined as “conduct[ing] business”? Are individuals with a part-time blog regarded in the same way as international players such as Netflix whose sole business is online streaming? Can we expect said bloggers to pay such an exorbitant license fee to simply upload a video demonstrating their newest recipe?

Beyond those with potential business interests, the definition of ‘distributor’ is also broad enough to include all user-generated content. Every day, tens of millions of ordinary South Africans upload and share an unthinkable volume of content often through social media networks. How can the FPB expect every internet user who wishes to upload something to be part of an industry classification body? Equally, how can the FPB expect to classify the plethora of videos, links, photos and articles uploaded by private citizens every day? The logistics of attempting to regulate all content uploaded to the internet is simply unworkable and these objectives laid out by the Bill are plainly impractical in the face of the broad spectrum of internet users and the volumes of digital content involved.

We would argue that the FPB would need to re-examine these definitions specifically in order to clarify who would be held accountable for the distribution of their online content.

Children-related issues
It is clear that a major objective of the Amendment Bill is to strengthen the protection of children in the digital space. While this is indeed a concern, there appears to have been a major gap in the public participation process where no children or youth or even children’s rights groups were consulted at all. How can one develop laws and policies without the views of the very people for whom the legislation is developed? We would argue that this is a major oversight on the part of the Film and Publications Board and thorough public participation with children and youth would need to occur before the Bill should be taken further. Such consultation will also bring to light the fact that children are a broad sector of society that represent a diversity of individuals that have their own agency and are of different developing capacities, risk profiles and resource bases. It is critical that such diversity is considered and reflected in this legislation.

We have also taken issue with the use of the term “child pornography” in the bill. We argue that pornography itself is a constitutionally protected right of freedom of speech and it should not be affiliated to or confused with content that depicts sexual exploitation and abuse of children. It must be made clear that the latter content is strictly criminal. We suggest that the term “child abuse material” is a more appropriate phrase in this context.

Where are we now?
The issues raised above are only a handful of those brought up in our submission. Once again, you can find our full submission here: http://bit.ly/2cvMB2F

On the 31 August, 2016, Media Monitoring Africa and the SOS: Support Public Broadcasting Coalition were afforded the opportunity to make an oral submission in parliament, to the Parliamentary Portfolio Committee on Communications. Once the oral presentations are concluded the Committee will deliberate the Amendment Bill, taking into consideration the views expressed in both the written submissions and the oral presentations. We look forward to further opportunities for engagement on this Bill.

For further information, both on our position and our submission, feel free to contact us at:

Thandi Smith
thandis@mma.org.za

Wellington Radu
wellingtonr@mma.org.za

There should also be continuous research and training of IT security personnel, finance services sector personnel, police officers, prosecutors and the judiciary to keep them abreast of advancing computer technology. At the end of the day, a balanced approach that considers the protection of fundamental human rights and the need for the effective prosecution of cybercrimes is the way forward.
Read the full submission below.

In an ever increasingly digital age where platforms not only converge but also where citizens are being swamped by international content the role and importance of local content could not be greater. While the digital world offers almost limitless options for the amount of content there is a need to ensure that we meet the needs of citizens. This means ensuring that people see themselves, their stories, their languages, their realities presented and represented. It means we have an even greater responsibility to our children to ensure that their needs as South Africans and Africans are not marginalised and added as after thoughts. Read the full submission below.

MMA submits that the Draft Regulations in their current form deny children some of their basic rights as enshrined in the South African Constitution, the United Convention on the Rights of the Child and African Charter on the Rights and the Welfare of the Child. Accordingly we call for the withdrawal of the regulations in their current form.

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In this submission, MMA argues that the Regulations in their current form are impractical, illegal, overly broad and will not achieve their stated aims

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2 February 2015

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28 November 2014

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4 November 2014

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10 October 2014

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31 March 2014

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