New internet laws for South Africa – and the case about online comments you should know about

The introduction of the Films and Publications Amendment Act at the start of March has led to some uncertainty around the status of websites and other online content in South Africa, and whether website owners and operators will be subject to regulation

But the regulations are relatively clear around who will be impacted by the change, legal experts at Webber Wentzel said in a recent webinar.

The Films and Publications Amendment Act, which came into law on 1 March 2022, requires any person who distributes, broadcasts or exhibits any film or game in South Africa to register with the Film and Publication Board (FPB) as a distributor or exhibitor.

The Amendment Act defines a distributor as a person who is in the business of distributing films, games and publications, and explicitly includes a ‘commercial online distributor’ – being a person whose distribution of content is for commercial gain in the definition.

The exclusion of ‘non-commercial online distributors’ – being a person distributing content over the internet for personal or private purposes – from the definition of a distributor means that ordinary persons sharing content online for private purposes will not need to register as a distributor or exhibitor with the FPB, Webber Wentzel said.

It added that an enforcement committee will be established under the Amendment Act. One of the powers of the Enforcement Committee is to investigate non-compliance with the Act and where appropriate, impose a fine, suspend a certificate of registration or refer a matter to the National Director of Public Prosecutions for prosecution.

“The enforcement committee will use these powers to deal with persons that do not register with the FPB where they should have done so.”

Some of the key changes introduced through the new legislation include:

  • The Act will give the FPB power to regulate almost all online content published in South Africa – not just the movies and television it has previously regulated;
  • 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;
  • No person may expose, through any medium, including the internet and social media, a private sexual photograph (revenge pornography);
  • Any person who knowingly distributes ‘hate speech’ in any medium which amounts to propaganda for war, incites imminent violence, or advocates hate speech, shall be guilty of an offence;
  • If an internet access provider 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 shall immediately remove this content, or be subject to a fine.

If a media company hosts websites, is it liable for user-generated comments on its pages?

Webber Wentzel noted that there is no case law in South Africa on this issue, but a recent case in Australia is likely to set precedent.

“In 2021 the highest court in Australia (the High Court) decided that a media company that hosts comments, and benefits from those comments by giving their users an additional value add or attracting activity to their website, is a publisher and is liable for defamation.

“A media company could potentially raise the defence of innocent dissemination, which means that it would only be liable if it knew or had reason to know that the content being hosted by it is defamatory.”

It is likely that South African courts would reach the same conclusion as that of the Australian High Court, if (and more likely, when) this issue is decided by them, the firm said.

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New internet laws for South Africa – and the case about online comments you should know about