The National Assembly has officially passed the Films and Publications Amendment Bill.
On Tuesday (6 March), Parliament confirmed that the bill will now be transmitted to the National Council of Provinces for concurrence, following which it is set to be signed off by the president and will officially come into law.
The bill had previously come under scrutiny from members of industry and the public, over concerns that it would be used as a means of censorship for online content.
This includes specific instances where the FPB will be allowed to regulate user-generated content (such as YouTube videos, pictures, and music), and possibly even block non-compliant online distributors at an ISP level.
Speaking to BusinessTech, legal expert and long time opponent of the bill, Nicholas Hall, said that it is intended to extend the powers of the FPB to allow it to properly classify content distributed through the internet.
“While technically it is not censorship, it can have the effect of censoring certain content, as seen with (the movie) Inxeba,” he said.
Hall said that the FPB now has the power to classify and potentially ban films, games and ‘other publications’.
Other publications are defined as:
- Any newspaper, book, periodical, pamphlet, poster or other printed matter;
- Any writing or typescript which has in any manner been duplicated;
- Any drawing, picture, illustration or painting;
- Any print, photograph, engraving or lithograph;
- Any record, magnetic tape, soundtrack or any other object in or on which sound has been recorded for reproduction;
- Computer software which is not a film;
- The cover or packaging of a film;
- Any figure, carving, statue or model; and
- Any message or communication, including a visual presentation, placed on any distributed network including, but not confined to, the internet.
Age restrictions on YouTube?
Hall said that YouTubers and streamers are most likely to be affected by the new laws.
“While the amendment bill will give the FPB the power to potentially classify any content uploaded online, including private communications, they generally will only have this power if someone complains to them about the specific content,” he said.
“Films and games are treated differently, however. Under the bill, a distinction is made between ‘commercial distributors’ and ‘non-commercial distributors’. Non-commercial distributors of films and games are treated much like the creators of ‘other publications’, their content can only be classified if someone complains.
“However, commercial distributors are required to have their content classified prior to distribution or face criminal prosecution,” he said.
Hall added that this distinction was particularly problematic as it is unclear what is defined as a ‘commercial purpose’, and that this could be as simple as enabling advertising on uploaded videos.
All content platforms (Youtube, Netflix, Steam etc) will now also be required to register as distributors and pay an annual fee, based off the number titles they have in their library, said Hall.
“As mentioned, they technically have the power to classify (and potentially ban, as we saw with Inxeba) any online content, provided someone complains to them about it.
“The other concern is that they have built in provisions to allow them to enforce this system, one of which is to force ISPs (eg Telkom, Mweb, and Afrihost) to block access to content platforms that do not comply,” he said.
Essentially this would mean you would not be able to access the censored content – even if you were above the age limit and were actively trying to access it.
No going back
With the bill now heading to the NCOP, Hall said that he did not see any way that the bill would not become official law in the near future.
“There are only three possible ways to prevent it now, assuming the National Council of Provinces doesn’t reject it,” he said.
- The president can refuse to sign it and send it back to the National Assembly on the point that he thinks it is unconstitutional, or constitutionally problematic.
- Any MP can ask the Constitutional Court to review it on the point that the amendment is unconstitutional.
- Finally if it is passed into law, a private citizen or other body could potentially take up legal suit to get the now Act declared unconstitutional.