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South Africa: An update on the recent activities of the Film and Publication Board

11 April 2023
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The Films and Publications Act 65 of 1996 (FPA) was substantially amended on 1 March 2022. A link to our update on those amendments can be accessed here.

Since that date, the relevant regulatory authority – the Film and Publication Board (FPB) – has been active, publishing a range of guidelines, notices, rules and regulations:

  • On 1 August 2022, the FPB’s reviewed Classification Guidelines (for the classification of films, games and certain publications) came into effect. These can be accessed here.
  • On 2 September 2022, the amended Films and Publications Regulations, 2022 were published as part of the ‘operationalisation’ of the amended FPA. The amended Regulations include, amongst other things, greater clarity on how the FPB regulates commercial online distributors. The amended Regulations can be accessed here.
  • On 28 October 2022, the FPB issued a notice to all internet service providers (ISPs) (defined as ‘any person who carries on the business of providing access to the internet by any means’), requiring compliance with section 24C of the FPA (which deals with obligations of internet access and service providers) and section 27A of the FPA (which deals with registration and other obligations of ISPs). The notice can be accessed here.
  • The notice required ISPs to update the FPB on, amongst other things:
    • how they have moderated child-orientated services, taken reasonable steps to ensure that such services are not being used by any person to commit an offence against children, prominently displayed reasonable safety measures, and provided a mechanism to enable children to report suspicious behaviour;
    • how they have registered with the FPB and taken all reasonable steps to prevent the use of their services for the hosting or distribution of child pornography;
    • all reasonable steps taken to prevent access to child pornography or the use of services for the hosting or distribution of propaganda for war, incitement of imminent violence or the advocating of hatred based on an identifiable group characteristic and that constitutes incitement to cause harm by any person, if the internet access provider has knowledge of such access or use of its services; and
    • any takedown notices issued under the Electronic Communications and Transactions Act 25 of 2002, and the content which has been taken down.

This information was required to be provided to the FPB within 90 days from the publication of the notice i.e. by 27 January 2023.

The FPB indicated that this was a preliminary information-gathering process to assess the efforts of ISPs in combatting online harms and abuses and that it would issue additional notices to ISPs at a later date so as to aid the its understanding of online safety measures across a wide range of services within its legislative jurisdictions.

  • On 6 January 2023, the FPB published various draft regulatory instruments for public comment (with a submission date of 17 February 2023). This included the Draft Enforcement Committee Rules, the Draft Complaints Handling Procedures, as well as the following:
    • Draft Films and Publications Amendment Tariff’s Regulations (which sets out various tariffs, including for registration and classification, which vary across small, medium and large clients). These draft tariff regulations can be accessed here.
    • Draft Regulations on the Processes and Procedures for Applying or Registering, Amending, Transferring and Renewing Licences and Terms and Conditions to be Applied to such Licences (which set out various processes and procedures, including in relation to changes in ownership and control). These draft processes and procedures regulations can be accessed here.
  • On 24 March 2023, the FPB published two finalised regulatory instruments following the public comment process. These included the following:
    • Enforcement Committee Rules (which sets out the functions of the Enforcement Committee, including the rules for its processes and procedures). The Rules can be accessed here.
    • Complaints Handling Procedures (which sets out various procedures for lodging complaints, processing and screening complaints, concluding complaints and the institution of proceedings before the Enforcement Committee). The Complaints Handling Procedures can be accessed here.