Special Report Our Guest Contributor, Lauren van der Byl of Legalese

Amendments to the Film and Publications Act – Online censorship or welcomed 21st-century update?

The Film and Publications Act 65 of 1996 (“FPA“) was enacted to regulate the film industry in South Africa. The FPA established the Film and Publications Board (“FPB“) and provided for the classification of certain films and media. The FPA commenced in 1998 and stayed the same since then subject to minor amendments over time. Therefore, when the Films and Publications Amendment Act 11 of 2019 (“FPAA“) was announced, it caused a shock due to the amendments introduced. In this article, we have summarised and discussed the amendments to better understand them and their effect

The FPAA came into operation on 1 March 2022 appearing to stem from a need to update the FPA in line with technological developments since the FPA’s initial publication.

The various updates to the FPA include the expansion of the FPA to online and streaming platforms, the insertion of new definitions as well as the extension of the ambit of certain definitions, establishing an Enforcement Committee, and providing for offenses for non-compliance with the FPA.

New and Updated Definitions

The FPA was updated by the insertion of new definitions in line with the current technological environment. These new and/or updated definitions include:

• the extension of the definition of “distribute” to include streaming content, sale, and hiring using the internet,
• the inclusion of films, games, and publications accessed using the internet under the definition of “film”, “game” and “publication”.
• a definition of “the internet”, “social media”, and “streaming”; and
• the insertion of a definition for “commercial online distributor” to differentiate the definition from that of an ordinary distributor as well as a “non-commercial distributor”.

Commercial Online Distributors

Previously, distributors were required to register with the FPB as a distributor and submit their content for classification by the FPB. Commercial online distributors (who are distinguished from ordinary distributors with the inclusion of the definition) may now apply to the FPB to classify their own content (films, games, or publications) subject to the payment of the prescribed fee.

A commercial online distributor may avoid submitting their content for examination and classification where they are granted approval for self-classification if they apply the classification guidelines and requirements of the FPB, or they inform the FPB of any classifications of “XX” and “X18” and do not reclassify content which was previously classified by the FPB.

Commercial online distributors may also apply to the FPB to have their content classified in terms of a foreign or international classification authority or body.

Complaints against prohibited content

The FPA now allows for members of the public to complain to the FPB about unclassified prohibited content or potential prohibited content (content that includes propaganda for war, incitement of imminent violence, and advocacy of hatred) in relation to services being offered by any person including any distributor (commercial or non-commercial).

Where the FPB establishes that there is merit to the complaint or that the content amounts to prohibited content or that the content has not been classified they are entitled to issue a take-down notice in terms of the Electronic Communications and Transactions Act to a non­commercial online distributor or an internet service provider.

An internet service provider will be compelled to furnish the FPB or the SAPS with information on the identity of the person who published the prohibited content.

This clause raises concern as it effectively allows the FPB the power of online censorship. The FPB has the power to decide whether the content (published commercially or not) is propaganda for war, incites violence, or advocates hatred which is something traditionally decided by a court. Such power awarded to the FPB outside of a traditional court may lead to a constitutional challenge in the future.

Offences and Penalties

The objectives of the FPA were updated to include the criminalization of the possession, production, and distribution of child pornography and the creation of offences for non-compliance with the FPA

The update to the FPA includes a section on the “prohibition against distribution of private sexual photographs and films” known more commonly as “revenge porn”. Not only is it an offence to knowingly distribute private sexual content but the offence carries a maximum fine upon conviction of R150 000 (one hundred and fifty thousand Rand) and/or imprisonment not exceeding 2 (two) years. Although, it will again have to be seen how this is handled by the FPB as this aspect is also dealt with under the Cybercrimes Act which is more appropriately placed to regulate online crime and offences.

In line with the updated objective of the FPA, a section was added which prohibits the creation, production, and distribution of films and photographs depicting sexual violence and violence against children.

Further amendments

A new subsection 24(3) was added to section 24 (regulation of adult content) to allow a registered film or game distributor, subject to being granted an exemption by the FPB, to distribute a film or game classified as “X18” online under certain circumstances and subject to certain requirements.

Sections 24D to 24G have been added to deal with prohibitions, offences, and penalties for the submission of false and misleading information online to the FPB, the distribution of private sexual photographs and films, the filming and distribution of films and photographs depicting sexual assault and violence against children and propaganda for war, incitement of imminent violence, and advocacy of hatred, respectfully.

Internet service providers are also required to register with the FPB and are mandated to take all reasonable steps to prevent the use of their services for the hosting or distribution of child pornography.

The additional updates to the FPA relate to compliance and enforcement such as the establishment of an Enforcement Committee and the broadening of the current scope of compliance officers.

To conclude, while many of the above amendments bring a welcomed update to a slightly outdated FPA, it will remain to be seen how the FPB will implement their new powers in respect of prohibited content considering our Constitution and freedoms as well as the regulation of all the added offences and penalties following implementation of the FPA in practice.

Lauren van der Byl on behalf of Legalese

01 April 2022