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SA’s new internet Act out of touch with rest of world
The Act would expect streaming services such as Netflix, and game manufacturers submit all content to the FPB for classification before publishing.
Chairperson of film and publication board council, Zama Mkosi during a press briefing on South Africa’s films and publications amendment act that was declared operational by the President from 1 March, Government Communications and Information Systems Tshedimosetso House, Pretoria, 3 March 2022. Picture: Jacques Nelles
The Film and Publication Amendment Act has finally come into effect and while this might not severely impact a regular internet and social media user, it’s the live streaming services, film industry and the gaming world that would be affected, despite online platforms already having similar regulations.
The Act, which was announced by the department of communications and digital technologies (DCDT) along with the Film and Publication Board (FPB) at a media briefing on Thursday, will see commercial online content such as films and games will face more regulations, including the requirement that they have to register for classification with the FPB before publishing their content.
While some might have criticised the Act as censorship of the internet, the provisions state that the only content which is prohibited is that which promotes hate speech, incitement of violence, propaganda for war, child abuse, and child pornography, revenge pornography and bestiality.
“The number of companies that are in the business of selling films, games and publications to consumers in online format have exploded in recent years. Because the online world is borderless, it is now easier than ever for consumers to access news, information and entertainment created in other countries,” said DCDT deputy Minister Philly Mapulane.
Would this pose any challenges?
Aside from the eight-day turn-around time for local online distributors and up to three months for international online distributors to be classified, registration for classification will come with different tariffs depending on the amount of content to be shared.
Harmful content, as listed above, would be refused classification and according to the guidelines set out by the FPB, such content will be reported to the CEO of the Board to be published in the Gazette. The exception is when the content is judged within context, the content is a bona fide documentary, or publication of scientific, literary or artistic merit or is of public interest.
Content containing child pornography will immediately be referred to the South African Police Service by the FPB’s CEO. This includes possession, distribution, sale, or hire of child pornography.
Self-censorship a better option
Online platforms such as Google, YouTube, and other social media and streaming services already have similar regulations in place, with algorithms which immediately detect harmful content to be investigated and removed, said telecommunications, IT and media lawyer Janet MacKenzie, partner at Baker Mckenzie law firm.
She believes self-classification and regulation, as practiced by various countries in the world, would have been a preferable option.
The amended Act as it currently stands risk severely impacting streaming services such as Netflix and ShowMax, who put out films and content on a daily basis, she said.
“The rest of the world recognises that self-regulation is the preferred mechanism and means to do this. Here you have huge technology companies who have invested a lot of time, money, and effort in actually inferring that the content on their platform is properly moderated. Some of these companies have about 30 000 examiners of content that they have employed to go and make sure that the content on their platform complies with their standards and guidelines which are stringent.”
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These platforms ensure that the same content that the FPB is concerned about is not published and they have algorithms that detect and refer for investigation any unlawful content, she said.
“By making these massive technology companies and streaming services subject to the requirements of this Act is going to be extremely difficult for them to comply with. It is also difficult because these platforms are run on a global basis and not just directed at South Africa. For them to have different set of guidelines makes it problematic and it will be very costly to do it,” said MacKenzie.
How will this classification work?
The Act will only apply to commercial users, meaning non-commercial users are exempt from following the guidelines set out by the FPB.
Mainstream media that falls under the press code is also exempt, but those who want to sell their content online would first have to register and apply with the FPB.
This means that regular social media users may upload content and videos, but should it contain hate speech, incitement of violence, propaganda for war, abuse of children or child pornography, viewers can lodge a formal complaint with the FPB.
This will be investigated and a relevant sanction or penalty will be imposed.
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Distributors who wish to make films, games, and certain publications available for sale within the country are required to submit content to the FPB for classification. The turn-around time would be eight working days for local distributors and up to three months for international online distributors.
“Importantly, this requirement does not extend to broadcast material and publications that fall within the responsibility of the Press Ombudsman. The FPB only classifies publications – books, paintings, magazines – once a public complaint is received. These are not requirements for submission and pre-distribution classification.”
“It is important to emphasize at the outset that classification of content is not censorship. Censorship entails the blocking or removing of content from distribution in a country. In South Africa the only content that is prohibited relates to hate speech, incitement to violence, propaganda for war, child pornography and bestiality,” said FPB chairperson Zama Nkosi.
