The Draft Films and Publications Amendment Regulations, recently published for public comment in South Africa, have significant implications for online distributors in their current form, says law firm Baker Mckenzie.
The regulations apply to the sale, hiring and streaming of content on various digital platforms in South Africa.
“The Film and Publications Act (FPA) provides for, amongst other things, the classification of certain films, games and publications as well as overseeing the establishment of the Film and Publications Board (FPB) to administer the classification process and other matters,” the firm said.
“Following the growth of electronic communications, social media platforms and the availability of digital content, it was deemed necessary to extend the operations of the FPA to cater for the creation, possession, production and distribution of online content.”
The Films and Publications Amendment Act 11 of 2019 (FPAA) was passed by Parliament and although it has been signed by the president, it will only come into operation on a still-to-be proclaimed date, Baker Mckenzie said.
It noted that the FPAA was heavily criticised as it made its way through the legislative process.
“Termed the ‘Internet Censorship Bill’ in the context of the FPB’s attempt to regulate ‘harmful content’, commentators argued it was in contravention of the right to freedom of expression, as provided for in South Africa’s Constitution.
“The FPAA Regulations now clarify some of these aspects under the FPAA and will replace the existing regulations of the FPA,” Baker Mckenzie said.
In terms of the FPAA and the regulations, all online distributors will be required to register with, and submit all content to the FPB for classification.
Alternatively, online distributors will have to apply to the FPB’s Council for self-classification accreditation or for approval to use the classification ratings issued by a foreign or international classification authority.
“The requirement to register and obtain a classification for all content made available online by online distributors is cumbersome, administratively burdensome and out of step with international approaches to the regulation of content on global platforms,” Baker Mckenzie said.
It also highlighted specific concerns with regulation 2.3.3 which provides that when the FPB issues a registration certificate, it can ‘impose any conditions it considers necessary for the better achievement of the objects and purposes of the FPAA.
“This is far-reaching and there is concern around the broad discretionary powers that the FPB has claimed when issuing registration certificates, and the possible detrimental effects this could have on online content and streaming services.”
Baker Mckenzie said that the requirements for self-classification will be very difficult when providing content on a global basis, and content providers will have to ensure that all South African content is classified in line with the FPB’s classification guidelines.
“This is out of step with international approaches to the classification of content on global platforms, where the platform owner is given full autonomy over its self-classification decisions, provided that robust codes and procedures are in place for dealing with content not deserving of constitutional protection,” the firm said.
It added that there are numerous administrative requirements that would need to be fulfilled, including that the FPB be provided with a monthly product list of all films that are made available ‘for sale or hire through the online medium’.
“This requirement goes well beyond what is provided for in the FPPA and will be applicable to all films and games which are sold or rented on online platforms.
“In the case of XX or X18 films, the classifications for these films must first be published in the Government Gazette, which may present further delays in making such content available.
“Further, until a permit has been approved by the FPB for self-classification, content providers will be required to submit all films and games to the FPB for pre-distribution classification.”
With the exception of members of the Press Council and the Advertising Standards Authority of South Africa, Regulation 16 provides that any entity must submit a publication for classification.
Baker Mckenzie noted that a ‘publication’ is widely defined in the FPA and includes newspapers, books or any other printed matter.
“The definition of a publication is further widened in the FPAA to include any content made available using the internet, excluding a film or game,” it said.
“The effect is that all advertisements and any other published matter, which is made available online, will have to be submitted to the FPB for classification.”
Registration as an internet provider
Baker Mckenzie said that the regulations provide a new definition for an ‘internet service provider’ with the result that internet-based companies will be required to register with the FPB as an internet service provider in addition to the burdensome administrative steps that need to be adhered to for the registration and classification of content.
“Of further concern is that the Regulations appear to require all persons who operate websites to register as internet service providers,” it said.
“This provision is unjustifiably all-encompassing, onerous and has no basis considering that section 27A of the FPAA does not contemplate the registration of persons who host websites as internet service providers.”
Baker Mckenzie said that the regulations raise numerous constitutional concerns, namely:
- They are premature because the FPAA has not come into force and effect;
- That a number of regulations go well beyond the powers granted to the minister.
“In our view the regulations will not pass constitutional muster in many respects, as they purport to define what is morally reprehensible or correct in some instances.
“Given their wide application, the regulations encroach on and frustrate the right to freedom of expression enshrined in the Constitution.”
You can read the full set of draft regulations below.
Commentary by Janet MacKenzie, partner and head of the Technology, Media and Telecommunications Industry Group, and Reinhardt Biermann, an associate at Baker McKenzie.