by Dominic Cull, ISPA’s regulatory advisor
The Film and Publications Amendment Bill approved by the National Assembly in March 2018 is a classic example of good intentions gone bad.
The draft legislation now before the National Council of Provinces (NCOP) should be sent back to be re-written.
The Internet Service Providers’ Association of South Africa (ISPA) believes there is a requirement for the Film and Publications Act to be redrafted for the Internet and social media age. The Act was drafted in 1996 – pre-Internet in SA – and a series of amendments over the years have done nothing to help the Board to pursue its mandate of providing information to consumers to allow them to choose the content they consume online.
The current Bill is unlikely to make a meaningful difference. A state law advisor noted in a report in Parliament that the “Act looks ugly, half empty and borders on being meaningless, with a doubt whether this amendment has hope to give it better life”.
The growth of video-on-demand (VOD) services like Netflix and Showmax in South Africa means that more consumers are now getting movies and other content from online platforms instead of going to a DVD rental store or movie theatre. It makes sense for this content to be classified and for the online platform to show the rating in the same way as a DVD store or movie theatre would.
There is also a need to address hate speech and unlawful conduct online and the ease with which children can access pornography, something which is being undertaken by the South African Law Reform Commission (SALRC).
Unfortunately, while the Bill sets out a framework for classification of online content which could be useful, this is lost in vague definitions and ill-considered attempts to expand the role of the Film and Publications Board into an Internet policeman.
Problematic definitions effectively turn all South African Internet users into online content distributors, directly regulated by the Film & Publications Board.
No less than three definitions of the term ‘distributor’ are proposed in the Bill. One of these relates to a ‘non-commercial online distributor’, defined as “any person who distributes content using the Internet, or enables content to be distributed by a user of online services, for personal or private purposes”.
This goes well beyond the original mandate of South Africa’s film and publications legislation, which is to regulate the activities of people in the business of distributing films, games and publications.
This means that the Bill, in effect, seeks to regulate all South Africans who distribute electronic content, and this may include private communication between individuals. WhatsApp messages, Facebook and Twitter posts and comments on online news articles all spring to mind as the kind of content which the Bill seeks to regulate.
This broad scope, ISPA says, means that the provisions of the Bill interact dangerously with fundamental Constitutional rights such as freedom of expression.
The Bill empowers the Film and Publications Board to make decisions about what is and what is not protected speech and to issue takedown notices where it is of the view that speech is not protected. ISPA believes that a quasi-government body appointed by a Minister should not be making extremely complex legal judgment calls about something as fundamental to our hard-won democracy as freedom of expression.
Before this Bill is signed into law, there should be careful consideration of the draft Bill’s content, provisions and how these interact with our Constitutional rights.
If all else fails to remedy the Film and Publications Amendment Bill, the Act should be repealed and re-written from scratch.