The Film and Publications Amendment Act: An Internet Censorship Bill or the Prevention of Harmful Digital Content?

The Film and Publications Amendment Act: an internet censorship bill or the prevention of harmful digital content?

Introduction

The Film and Publications Amendment Act 11 of 2019 (FPAA) has, since its enactment, raised many a controversial question as to its limiting of some of our most important constitutional rights, in particular the freedom of expression and the right to privacy. While the Film and Publications Board has expressly stated that the recent amendments to the Act do not censor South African citizens, it is important to bring potential issues with the new legislation to light. In terms of exercising one’s freedom of expression, the following will be examined in more detail: the new amendments and their effect, penalties and prohibited content, how the council of the Film and Publications Board (FPB) is structured, as well as whether the requirement of classification amounts to a quasi-censorship power of the FPB.

The Film and Publications Amendment Act (FPAA) and its amendments

The aim of the legislature is to protect the vulnerable and safeguard minors from threats and information disclosed to them on the internet. The FPAA’s objective is to align the definition of “child pornography” in the Act to that of the Constitutional Court judgment in De Reuck v DPP of 2004 in paragraph 28 (Goba:2019). It also purports to align the definition of “sexual conduct” as set out in the Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007 as well as establish a regulation system for independent bodies to classify their own films, games and publications (Goba:2019). The amendments to the Act focus on extending definitions to encompass the internet and social media as well as amending the structure of the FPB.

Importantly, the definition of “non-commercial online distributor”, which constitutes any person who distributes content on the internet or enables such, has been added to the FPAA (Collet & Leibowitz:2022). Consequently, anyone who feels offended or victimised by said content may issue a complaint to the FPB if they are able to prove that the content is unclassified or prohibited, and the FPB may order that the content be removed (Collet & Leibowitz:2022). In addition, the definition of “film” has been extended to include all recordings, be they commercial or non-commercial videos, in Section 1(h) of the Act, which raises the question as to how the FPB could practically classify all such videos and films on a daily basis (Goba:2019).

Furthermore, internet service providers are obliged to disclose the identity of persons who publish films and photographs containing private sexual content, sexual assault or violence against children, or other prohibited content under Section 18E(2)(b) of the FPAA. This stands in juxtaposition to the right to privacy and contrasts sections under the recently operational Protection of Personal Information Act of 2013 (Collet & Leibowitz:2022).  

Penalties and prohibited content

Prohibited content includes revenge pornography, child pornography and hate speech distributed via any medium (including social media platforms) with the intention of being harmful or propagating war or hatred towards a person or people, according to Section 1(o) of the FPAA. Should either a private party or an internet service provider be found guilty of distributing or publishing such prohibited content, without the prior consent of the party, the content will be removed, and the party fined and/or imprisoned (Sections 24F, 24G and 28). Should a party not be identified or identifiable in a content distribution or publication, the fine can amount to R150 000 or two years’ imprisonment, or both (Section 24E(1) of the FPAA). Should a party be identified or identifiable, the fine can amount to R300 000 or four years’ imprisonment, or a combination of both, as set out in section 24E(2) of the FPAA.

Restructure of the FPB and the threat to independence

Although the Films and Publications Act 65 of 1996 necessitates the independence and impartiality of the FPB, the FPAA has added the amendment that the council may determine the members and the CEO of the FPB (Collet & Leibowitz:2022). The Minister of Communications and Digital Technologies appoints the council, which makes the independence of the FPB questionable. The FPAA therefore extends the FPB’s original mandate of being a classification authority to becoming a regulator that has the ability to impose fines, accredit distributors and issue licenses, among other powers (City Press:2022).

An Enforcement Committee has been introduced to investigate non-compliance to the regulations of the FPAA (referred to the FPB) and adjudicate on such matters (Section 6B(1)). Non-compliance does not amount to a criminal offence (Section 6B(2)) but an Appeal Tribunal may be appealed to should a party feel aggrieved by the Enforcement Committee’s finding under Section 6B(3).

The functions of the FPB have been extended by the FPAA to include the power to accredit commercial online distributers’ classifications under Section 18C(1) and hearing complaints (Section 18E). Search and seizure powers have been extended to compliance officers in Section 15A(1A)(1) of the Act. This includes entering premises with the police or obtaining the consent of the person in charge of the premises where games or films are sold, hired, exhibited or stored.

Classification vs censorship

The FPAA empowers the FPB to regulate practically all online content beyond simply the movie and film publications as was stipulated under the previous Act. The new FPAA obliges content producers and distributers to submit their content to the FPB for classification in order to determine whether such content is permitted to be published online or not (City Press). This limits constitutional rights to privacy and freedom of expression, including the freedom to receive or impart information, the freedom of artistic creativity, and the freedom of the press and other media under Section 16 of the Constitution. The amendments also make room for the FPB to step back into a censorship role, as entertained under the apartheid regime, which naturally causes many concerns.

The FPB’s chairperson, Zama Mkosi, counters that the amendments to the Act strike a fair balance between protecting vulnerable people and minors from harm, through classification and by encouraging freedom of expression while aligning itself to international standards (City Press:2022). Mkosi stresses that classification does not amount to censorship, however this can be disputed (City Press:2022). Furthermore, Mkosi underlines that the amendments of the FPAA allow for self-regulation of online distributors using FPB guidelines and that the distinction between commercial and non-commercial online distributors allows for the registration and regulation of the former, while the latter is not required to do so (City Press:2022). Importantly however, according to the new FPAA, this does not exempt non-commercial online distributors or private parties from publishing harmful, prohibited content online that amounts to hate speech, child or revenge pornography, or sexual content without the depicted person’s consent (City Press:2022).