Amendments to the Films and Publications Act, 1996 are now in force
On 1 March 2022, the Films and Publications Amendment Act, 2019 ("FPAA") came into force. The FPAA was signed by the president on 3 November 2019. The main objectives of the FPAA are to:
- establish the Enforcement Committee;
- provide regulation for the distribution of content online in South Africa;
- extend the Film and Publications Board's ("FPB") compliance and monitoring obligations;
- create a classification rating system to regulate content; and
- impose obligations on internet service providers ("ISPs").
The Films and Publications Act, 1996 ("FPA") does not cater for the technological advancements regarding digital content creation and distribution in the new century, and the FPAA aims to bridge the gap between the two.
The establishment of the Enforcement Committee
The FPAA creates and establishes the Enforcement Committee, which is tasked with:
- investigating cases of non-compliance with any provision of the FPA referred to it by the FPB;
- adjudicating cases and make appropriate findings after the FPB and the respondent have been heard;
- where appropriate:
- imposing a fine,
- suspending a registration certificate; or
- referring a matter to the National Director of Public Prosecutions for prosecution; and
- applying to court for the enforcement of an unpaid fine as a civil debt to the FPB.
A finding of a contravention of the FPA by the Enforcement Committee is not a conviction in respect of a criminal offence. Once a finding has been made by the Enforcement Committee, the matter cannot then be referred for criminal prosecution. However, the finding may be appealed to the Appeal Tribunal.
Members of the Enforcement Committee will be appointed by the Council, and the chairperson of the Enforcement Committee must be a retired judge of the High Court of South Africa.
Distribution of online content
The FPAA has extended the application and scope of the FPA to online content through amendments to key definitions found in the FPA, such as "film", "game" and "publication". The FPAA categorises two types of online distributors: commercial online distributors and non-commercial online distributors. Simply put, a commercial online distributor is a distributor that distributes content commercially and a non-commercial online distributor is any person that distributes content for private purposes.
The FPAA also regulates the distribution of private sexual photographs and films through any medium. It introduces a new offence whereby any person who knowingly distributes private sexual photographs and films through any medium including the internet and social media, with the intention to cause such pictured individual(s) distress, and without obtaining the prior consent of the individual(s) appearing in the films and photographs, will be guilty of an offence and liable upon conviction to a fine, imprisonment or both.
It also introduces a prohibition against distribution of content that constitutes propaganda for war; incitement of imminent violence and advocacy of hatred that is based on identifiable group characteristics, that constitutes incitement to cause harm.
Film and Publications Board's compliance and monitoring obligations
The FPAA provides that any member of the public is allowed to lodge a complaint with the FPB regarding:
- unclassified content;
- prohibited content; or
- potential prohibited content, in relation to services being offered online by any person, including commercial online distributors and non-commercial online distributors.
Once an investigation has been done, and it is found that the content was not classified or it constitutes prohibited content, the matter must be referred to the FPB which may in the case of a non-commercial online distributor or an ISP, issue a take-down notice in terms of the procedure in Electronic Communications and Transaction Act, 2002 (“ECTA”). It is not clear to us how a take-down notice in terms of section 77 of ECTA will be served on a non-commercial online distributor, as section 77 only applies to “service providers”, as defined in Chapter XI of ECTA.
Where content is hosted outside of South Africa, the FPB has an obligation to refer the matter to the South African Police Service or report it to the relevant hotline in the country concerned.
In our view, the above amendments will merely encourage distributors to host their content with service providers outside of South Africa, in order to avoid take-down notices under section 77 of ECTA. Section 77 of ECTA has no jurisdiction over foreign service providers.
The FPAA introduces a new method of classification, that was not considered in the FPA. Under the FPAA, commercial online distributors are able to apply to the FPB to classify their own content (self-classification), which may include using an accredited foreign or international classification system, subject to the payment of a prescribed fee. The introduction of the self-classification system means that online distributors do not need to apply for an exemption from the requirements in the FPA anymore.
Distributors are required to display a classification label in the prescribed form on a film or game that is distributed in South Africa. 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 in the FPA Regulations.
Other obligations of ISPs
Every ISP must register with the Board and take all reasonable steps to prevent the use of their services for the hosting or distribution of child pornography. It is not clear what would be considered reasonable steps, especially in light of the fact that Chapter XI of ECTA specifically provides that there are no general obligation on service providers to monitor data which it transmits or stores, or to actively seek facts or circumstances indicating unlawful activity.
The FPAA mandates ISPs to furnish the particulars of users who gained or attempted to gain access to an internet address that contains child pornography upon request by the South African Police Service.
An internet access provider is also required to take steps to report any knowledge it may have where 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.
The ISP must report the particulars of the person maintaining, hosting, distributing or contributing to such internet address to a police official. The ISP must also take all reasonable steps to preserve evidence for purposes of investigation and prosecution by the relevant authorities. The obligations imposed on ISPs in the FPAA does not seem to take into account the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002 (“RICA”). RICA prohibits electronic communication service providers (which would include internet service providers) from disclosing communication-related information to any person other than their customer, unless under a communication-related information directive (such directive could only be obtained in terms of the provisions of RICA).
The FPAA has introduced a number of mechanisms that will regulate distribution of content in South Africa. Some of the provisions have been met with contention, because of the unintended consequences that may arise with enforcement of the FPA. As the FPAA was recently enforced, we can only wait to see how the FPB, Council, Appeal Tribunal and the Enforcement Council give effect to the FPA.
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