SOUTH AFRICA: FILMS AND PUBLICATIONS AMENDMENT ACT COMES INTO OPERATION
On 1 March 2022, the Films and Publications Amendment Act 11 of 2019 (FPAA), which was signed into law by the President and published in the Government Gazette on 3 October 2019, came into operation. The FPAA amends the Films and Publications Act 65 of 1996 (FPA) and provides more clarity on the regulation of online commercial distributors and the processes that they are required to follow to distribute content in South Africa. Some of the changes now in force are highlighted below.
Requirements applicable to commercial online distributors
Prior to the FPAA, all distributors (including commercial online distributors even though not expressly referred to in the FPA) had to register with the Film and Publications Board (FPB) and then submit their content to the FPB for classification (rating). There was no specific recognition that VOD distributors could classify their content themselves. Once the content was classified, the VOD provider would then be required to display the FPB classification ratings, logo and consumer advice on the content titles.
While the FPA provided that anyone could apply for an exemption from the requirement to submit content to the FPB for rating and the need to apply the classification guidelines published by the Film and Publication Council (Council), the approach taken by the FPB in practice was to require online distributors to:
- pay an ‘online licence’ fee (of ZAR 795 000) each year (this was later regulated under the Film and Publications Amended Tariff Regulations, 2020 (Amended Tariff Regulations) and payment decided on a per title basis); and
- conclude an agreement with the FPB dealing with how classification would be done, the rating standards that would be applied, and the training of people doing the rating. This was an ad hoc process that the FPB developed specifically to deal with online distributors and was not in line with what the FPA provided for.
The FPAA provides for specific departures (with permission) for commercial online distributors from the ordinary requirements that apply to distributors. In this regard, the FPAA:
- introduces a number of definitions to cater for the online distribution of content. Specifically, the definition of:
- ‘distribute’ has been broadened to include a reference to a ‘game’ as well as a film or publication and includes streaming content through the internet, ‘social media’ or other electronic mediums, and selling, hiring out or offering or keeping for sale or hire content, including using the ‘internet’.
- ‘distributor’ is included to mean ‘a person who conducts the business of distributing films, games or publications and includes a commercial online distributor’ (underlined emphasis added);
- ‘commercial online distributor’ is included to mean ‘a distributor in relation to films, games and publications which are distributed for commercial purposes using the internet’. Importantly, the definition of a distributor does not include a ‘non-commercial online distributor’ which is defined to mean ‘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’ i.e. a non-commercial online distributor is not required to register with the FPB as a distributor; and
- ‘film’, ‘game’ and ‘publication’ have been amended to include specific references to the internet;
- includes a new section that allows commercial online distributors to apply to the FPB to classify their own content (self-classification) with the payment of a prescribed fee;
- includes a new section that allows online distributors to apply to the Council to classify their content in line with a foreign or international rating scheme rather than the South African standards, which also involves the payment of a fee; and
- repeals the sections of the FPA dealing with the display of classification decisions and reclassification; and
- amends the FPA to provide that where a film or game has been classified or exempted from classification in terms of the FPA, or such film or game has been classified by a commercial online distributer referred to in the FPA, the film or game must display a label in the prescribed form if it is a film or game approved for sale or hire; and conspicuously display the FPB’s classification decision and logo on the landing page of the online medium, the online medium catalogue and at the point of sale of the commercial online distributor services, if it is a film or game approved for sale or hire online. The format, including the size and design, and the manner of the display of certificates of classification on films and games approved for distribution or exhibition, will be prescribed.
The effect of these amendments is that it is no longer necessary for online distributors to apply for an exemption from the requirements in the FPA. Instead, there is explicit recognition that online distributors can rate their own content and apply foreign ratings standards, where the FPB or the Council permits them to do so.
However, commercial online distributors, like all other distributors, still have to register with the FPB as distributors. It should be noted that films or games classified in terms of an accredited foreign or international classification system will not be required to comply with section 18I(1) of the FPA. Despite this, the FPAA does provide, in more generic terms, that no film or game may be distributed in South Africa, unless it has been classified in terms of the FPA and a clearly visible label indicating the age limit and the nature of content is displayed on or in connection with the film or game.
Potentially contentious amendments
Complaints against prohibited content
The FPAA provides that any member of the public is allowed to lodge a complaint with the FPB regarding (1) unclassified, (2) prohibited content, or (3) potential prohibited content, in relation to services being offered online by any person, ‘including commercial online distributors and non-commercial online distributors’.
Further, if, after investigation by the FPB or compliance officers, it is established that there is merit in the complaint or that the prohibited content or content being hosted or distributed using the internet constitutes prohibited content in terms of the FPA, or has not been classified, the matter must be referred to the FPB which may in the case of a non-commercial online distributor or an internet service provider (ISP), issue a take-down notice in terms of the procedure in Electronic Communications and Transaction Act 25 of 2002 (ECTA).
The ISP will also be ‘compelled’ to furnish the FPB or a member of South African Police Service (SAPS) with information of the identity of the person who published the prohibited content. In the event that the content contains child pornography, the FPB must refer the matter to the SAPS or hotline in the country concerned, where the content is hosted outside the geographical borders of South Africa.
This is problematic in the following respects:
- It is not clear what this is trying to accomplish in the context of non-commercial online distributors who are not required, in terms of the FPA, to classify content. The language of the relevant provision, however, appears to contemplate that a complaint can be lodged with the FPB regarding unclassified content provided by a non-commercial online distributor. This cannot be correct.
- The amendments effectively empower the FPB to make decisions as to what is and is not allowed speech under the South African Constitution, which is an issue that the courts struggle to deal with. The FPB will not be appropriately equipped to make such decisions and this provision effectively amounts to online censorship. As such, this may be the subject of constitutional challenge in due course.
- A further challenge is the way in which non-compliance will be dealt with (if, for example, content is not classified), which is that the FPB may issue a take-down notice under ECTA. However, ECTA does not provide that anyone who receives a take-down notice has to take down content. It provides for safe harbour protections for ISPs, provided that they take down content in response to such a notice. The FPAA also does not deal with how this will work where content is hosted outside South Africa and where, practically, the FPB has little ability to enforce any take-down notice. It is also not entirely clear whether the intention in these instances would be to require ISPs and mobile operators (rather than the online distributor itself) to block content, failing which they would be liable (as they would lose the safe harbour protections). All that the FPAA says regarding content that is hosted outside South Africa is that the FPB has to refer any content that contains child pornography to the SAPS or to the relevant hotline in the country concerned.
Prohibition against distribution of private sexual photographs and films
The amendments prohibit the distribution of private sexual photographs and films, through any medium including the internet and social media, without the consent of the individual appearing in such photographs and films and if the distribution is made with the intention of causing that individual harm. The only circumstance under which such disclosure may be made is where it is necessary for the purposes of preventing, detecting or investigating crime.
The FPA introduces a new offence that any person who knowingly distributes private sexual photographs and films without the prior consent of the individual appearing in the films and photographs with the intention to cause such individual distress, will be guilty of an offence and liable upon conviction to a fine not exceeding ZAR 150 000 or to imprisonment for a period not exceeding two years or both. Where the individual is identified or identifiable in the photographs and films, this penalty increases to a ZAR 300 000 fine and/or imprisonment not exceeding four years.
Again, there is an argument that this falls outside the scope of the powers and mandate of the FPB. In any event, the Cybercrimes Act 19 of 2020 (Cybercrimes Act) deals with this issue. This provision and the criminal prosecution of this issue will likely, in any event, be removed from the ambit of the FPB’s powers in due course.
Prohibition against propaganda for war; incitement of imminent violence and advocacy of hatred that is based on identifiable group characteristics, and that constitutes incitement to cause harm
The FPA prohibits distribution through any medium including the internet and social media, of any film, game or publication, which amounts to propaganda for war, incites imminent violence or advocates hate speech. The FPAA provides that any person who knowingly distributes in any medium, including the internet and social media, any such film, game or publication will be guilty of an offence. This includes a possible fine not exceeding ZAR 150 000 and/or imprisonment for a period not exceeding two years.
These amendments have been viewed as problematic by commentators who submit that the FPB is not appropriately equipped to be making assessments as what content constitutes propaganda for war; incitement of imminent violence and advocacy of hatred that is based on identifiable group characteristics, and that constitutes incitement to cause harm (i.e. this is an assessment to be made by the courts and, as such, this provision effectively amounts to online censorship). It is possible that these amendments may be the subject of constitutional challenge in due course.
Registration and other obligations of ISPs
The FPAA amends the FPA to provide that, if an internet access provider (rather than an ISP) has knowledge that its services are being used for the hosting or distribution of child pornography, propaganda for war, incitement of imminent violence or advocating hatred based on an identifiable group characteristic, it must take all steps to report the presence of this content. The internet access provider must report the particulars of the person maintaining or hosting or distributing or contributing to such internet address, to a police official, and take all reasonable steps to preserve evidence for purposes of investigation and prosecution by the relevant authorities.
Offences, penalties and enforcement under the FPAA
Offences and penalties
Amongst other offences and penalties, the FPAA provides as follows:
- not registering with the FPB as a distributor is an offence; the prescribed fine of ZAR 150 000 is relatively low; and
- not having content classified by the FPB (unless the online distributor has permission to self-classify its content) is an offence; the prescribed fine is ZAR 500 000.
The establishment and role of the Enforcement Committee
The legal entities created and established under the FPA are amended under the FPAA to include an Enforcement Committee. In particular, amendments provide for the establishment of an Enforcement Committee, which is to be independent, impartial and must perform its functions without fear, favour, or prejudice and act in accordance with applicable law, as is the case with the FPB, Council and Appeal Tribunal, each established under the FPA. The Council will be responsible for appointing the Enforcement Committee members under the FPA.
In terms of the FPAA, the Enforcement Committee has the power to:
- investigate cases of non-compliance with any provision of the FPA referred to it by the FPB;
- adjudicate cases and make appropriate findings after the FPB and the respondent have been heard;
- where appropriate impose a fine (e.g. if the matter is not referred for criminal prosecution);
- suspend a registration certificate or refer a matter to the National Director of Public Prosecutions for prosecution; and
- where a fine is not paid, at the instance of the chief executive officer, apply to court for the enforcement of such a fine as a civil debt to the FPB.
A finding by the Enforcement Committee is not regarded as a conviction in respect of a criminal offence, and, once a finding has been made, the matter cannot then be referred for criminal prosecution. A finding may, however, be appealed to the Appeal Tribunal.
The powers of compliance officers
The FPAA broadens the scope of powers of compliance officers under the FPA including, amongst other things, ensuring that all films and games offered for sale or hire by a distributor or an online distributor have been classified and labelled in terms of the FPA, and that all such films and games display the appropriate information. In this regard, a compliance officer may, amongst other things:
- at all reasonable times, with the consent of the person in charge of the premises or with the assistance of a member of the SAPS, enter any premises on or in which the business of the sale, hire or exhibition of films or games is being conducted;
- review a product list of all films and games offered for sale or hire through the internet which can be accessed by any person;
- review, with the consent of the person in charge of operating the online medium or the assistance of the SAPS, a product list of all films and games offered for sale or hire through an online medium which can be accessed by a closed group of persons;
- in the prescribed form, issue a compliance notice and notice to remove from display, including from display in an online medium, unclassified films or games;
- direct that a film, game or publication be removed from display, including from display in an online medium, or offer for sale or hire until it complies with the requirements of the FPA or complies with any decision of the FPB with regard to its distribution; and
- request the production of a certificate of registration as a distributor or exhibit of film or games issued by the FPB.
In conclusion, while the FPAA has brought some clarity to the regulation of online commercial distributors and the processes that they are required to follow to distribute content in South Africa, the introduction of a right of anyone to lodge a complaint with the FPB regarding unclassified, prohibited content, or potential prohibited content, may unjustifiably restrict free speech. The prohibition of the distribution of content that may, in the FPB’s assessment, amount to propaganda for war, incitement of imminent violence or advocacy of hate speech, is likely to be viewed as online censorship.