Well-Meaning “Internet Censorship Bill” Should Be Sent Back

12 July 2018

The Film and Publications Amendment Bill approved by the National Assembly in March 2018 is a classic example of good intentions gone bad. That’s according to the Internet Service Providers’ Association of South Africa (ISPA) which says the draft legislation now before the National Council of Provinces (NCOP) should be sent back to be re-written.

“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,” says Dominic Cull, ISPA’s regulatory advisor.

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,” says Mr Cull.

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,” concludes Mr Cull.

ENDS

Notes:

1. The version of the Bill passed by the National Assembly is available from https://pmg.org.za/bill/613/.
2. Set out below are definitions and sections taken from the current version which relate to this release.

“commercial online distributor” means a distributor in relation to films, games and publications which are distributed for commercial purposes using the internet;

“distribute” in relation to a film, game or a publication, without derogating from the ordinary meaning of that word, includes—

1. to stream content through the internet, social media or other electronic mediums;
2. to sell, hire out or offer or keep for sale or hire, including using the internet;
3. and, for purposes of sections 24A and 24B, includes to hand or exhibit a film, game or a publication to a person under the age of 18 years, and also the failure to take reasonable steps to prevent access thereto by such a person;

“distributor” means a person who conducts the business of distributing films, games or publications and includes a commercial online distributor;

‘harmful’ means causing emotional, psychological or moral distress to a person, whether it be through a film, game or publication through any on- or offline medium, including through the internet and ‘harm’ has the corresponding meaning;”;

‘non-commercial online distributor’, means 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.

18E. Complaints against prohibited content

1. Any person may complain to the Board about unclassified, 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.
2. If, upon investigation by the Board or by the compliance officers in terms of section 15, it is established that there is merit in the complaint and or that the prohibited content or content being hosted or distributed using the internet constitutes prohibited content in terms of this Act or has not been submitted for examination and classification as required in terms of sections 16, 18, 18C or 18D, the matter must be referred to the Board which may, subject to due process of law—
   1. in the case of a non-commercial online distributor, issue a take-down notice in accordance with the procedure in section 77 of Electronic Communications and Transactions, 2002 (Act 25 of 2002); or
   2. in the case of internet service providers, issue a take-down notice in terms of section 77 of Electronic Communications and Transactions, 2002 (Act 25 of 2002)

1. For the purposes of this section and sections 24E, 24F and 24G, the internet service provider shall be compelled to furnish the Board or a member of the South African Police Services with information of the identity of the person who published the prohibited content.

1. In the case of content hosted outside of the Republic that is found to contain child pornography, the Board shall refer the matter to the South African Police Service or to the hotline in the country concerned for the attention of law enforcement officials in that country.
2. For the purposes of this section an ‘‘internet service provider’’ means the service provider contemplated in section 70 and section 77 of the Electronic Communications and Transactions Act, 2002 (Act No. 25 of 2002).