Over the last two weeks the local online discourse has been centered around one specific piece of legislation.

That piece of legislation is the oh-so seductively named Film and Publications Amendment Bill (pdf).

The bill first entered the National Assembly in 2015 but not before it was widely criticised as archaic, vague and broad enough to include everything from hardcore pornography to cat videos on YouTube.

For the last four years the bill has been amended, tweaked, and changed until it was passed in December 2018 by the National Council of Provinces where it was returned to the National Assembly for consideration.

On 19th March the bill was sent to President Cyril Ramaphosa for signing the amendments to the Films and Publication Act of 1996 into law.

This prompted a national outcry as certain problematic, broadly worded sections of the bill have remained.

The problem with these sections are that they are broad and don’t clearly define certain terms. The danger, according to Nick Hall who spoke to Grant Hinds recently, is that the FPB could use these rules to make uploading content to YouTube or livestreaming on Twitch (among other online activities) far more difficult.

It sounds extreme and frankly, an impossible thing to police, so we contacted the FPB to ask it about the Amendment bill.

Before we dive into the FPB’s responses we need to state that the FPB cannot comment at length about the amendments until they are signed into law. That having been said the FPB was able to answer some of the pertinent questions South Africans might have about the amendments right now.

Speaking to the Film and Publications Board, it told us why the amendment bill came to be in the first place.

“Changes in technology have brought about new digital content platforms. The Films and Publications Act in its current form does not extend to these platforms for the regulation of content that could cause harm to consumers, and specifically children,” the FPB said.

So essentially then, the amendments seek to bring legislation in line with developments in technology with a view to protecting children from the ills of the internet.

Children aren’t the only focus of the FPB however. The amendments make specific provisions that outlaw the sharing of revenge porn as well as cyberbullying.

What the law might mean for YouTubers

But back to that mention of posting videos or other content to social media. Our primary goal was to find out two things – if I, as a private citizen upload content to YouTube, will the amendments apply to me and secondly, if I, as a private citizen, livestream without getting a stream classified what punishment might I face.

There is thankfully a slice of good news in that regard according to the FPB.

“The general public creating content for non-commercial distribution will only be affected if the content they create falls foul of the laws prohibiting the distribution of child pornography, hate speech, incitement to violence, violence or sexual violence. This includes such cyber social ills as revenge pornography,” the FPB tells Hypertext.

So then, if you intend on distributing hate speech through YouTube, then you’re likely to stoke the ire of the FPB. For everybody else making Let’s Play videos or reviews of beauty products you should be fine. The messy bit is the mention of “non-commercial distribution”.

The reason we say that is because whether or not these amendments would apply to you if your YouTube videos are monetised is unclear because your non-commercial venture is now making money. That having been said, there is another point worth mentioning that the FPB made us aware of.

“The Amendment Bill provides that the FPB and commercial distributors (of all forms of content categories regulated by the amended Act) may enter into co-regulation arrangements as well as allowing the FPB to assess and recognise international content regulation systems that are in alignment with the basic principles of protection of consumers,” the FPB says.

So, in the case of YouTube, you could abide by the platform’s content regulation system provided that it enters into a co-regulation agreement with the FPB.

But what about livestreams?

Curiously, while the amendments mention livestreaming several times, when asked about livestreaming gameplay on Twitch, the FPB had this to say.

“Livestreaming does not fall within the realm of the Amendment Bill. In cases where livestreams contain content that is illegal in South Africa (child pornography, hate speech; incitement to violence; violence, sexual violence) the community standards of platform owners and the regulation of Internet Service Providers (ISP) would apply. Regulation of ISPs falls under the Independent Communication Authority of SA (ICASA),” the FPB explained.

So why the mention of livestreaming? We can only think that this relates to services such as Netflix and Hulu which allow users to stream content but it’s unclear. That having been said it looks like issues regarding livestreaming will be forwarded to Icasa.

So what then is the hub-bub about the amendment bill? To put it plainly, the language is vague and the terms outlined are rather broad. For instance, if I make money from YouTube am I a distributor? The language of the amendments could be used to classify your videos or livestreams.

Unfortunately we don’t know if this will be the case when the amendments are signed into law and right now it will up to the FPB to decide how it enforces the amendments.

The fear then is that the amendments could be used to stifle content that could be interpreted as hate speech, child pornography. One example of this is the artwork The Spear.

The Spear depicted former President Jacob Zuma and his privates in a painting that garnered criticism from the presidency and the ANC. That artwork was ultimately classified by the FPB in 2012 and given a rating of 16 for nudity.

Could these amendments be used for similar purposes? Perhaps, and we’re currently chatting with a legal mind to see if that is indeed the case. As soon as we hear back from them we’ll be sure to let you know what they say.

From what we’ve gathered speaking to lawyers and legal minded folks is that the onus of complying with these amendments is on the distributors such as YouTube, Netflix and the like rather than you as the creator of the content.

With all of this in mind the FPB reminds us about a rather important piece of legislation – the constitution.

Above all else you have the right to freedom of expression and so long as your freedom of expression doesn’t contain hate speech, revenge porn or child porn you should be safe from the FPB classifying your videos.

“The FPB treads a delicate balancing act between the various rights held by citizens through our Constitution. Chief amongst our concerns is the protection of all South African children from premature exposure to content that could harm their psychological and mental development,” the FPB concludes.

The full text we received from the FPB follows on below.

RESPONSE FROM THE FILM AND PUBLICATION BOARD (FPB)

The Department of Communications is currently in the final stages of signing off amendments to the Films and Publications Act (Amendment Bill), which is the main legislation guiding the work of FPB in ensuring that children are protected from harmful content.

As the Amendment Bill has not received the final signoff from Parliament, the Film and Publication Board, as a regulator tasked with implementing the legislation, is not in a position to comment at length on the Amendment Bill. This is important to note. Once the Amendment is passed, the FPB will be able to comment further.

However, major innovations in the amendment have the following goals:

  • Changes in technology have brought about new digital content platforms. The Films and Publications Act in its current form does not extend to these platforms for the regulation of content that could cause harm to consumers, and specifically children.
  • Section 18 which will protect all consumers from cyber bullying by prohibiting the distribution of private sexual photographs and films using any form of media channel. This is critical as we face a barrage of cyberbullying (including revenge pornography) amongst children as well as adults, some of which has led to suicide.
  • In the online space, the Amendment Bill will allow for the regulation of Commercial Online content distributors.
  • The general public creating content for non-commercial distribution will only be affected if the content they create falls foul of the laws prohibiting the distribution of child pornography, hate speech, incitement to violence, violence or sexual violence. This includes such cyber social ills as revenge pornography.
  • The Amendment Bill provides that the FPB and commercial distributors (of all forms of content categories regulated by the amended Act) may enter into co-regulation arrangements as well as allowing the FPB to assess and recognise international content regulation systems that are in alignment with the basic principles of protection of consumers.
  • The Amendments Bill further makes provision for the establishment of an Enforcement Committee that will deliberate on unlawful content or unlawful distribution of content by enforcing fines or referring the case to law enforcement for criminal prosecution. Checks and balances are in place allowing the distributor to appeal a finding of the Enforcement Committee to the impartially appointed Film and Publication Board Appeals Tribunal.
  • Livestreaming does not fall within the realm of the Amendment Bill. In cases where livestreams contain content that is illegal in South Africa (child pornography, hate speech; incitement to violence; violence, sexual violence) the community standards of platform owners and the regulation of Internet Service Providers (ISP) would apply. Regulation of ISPs falls under the Independent Communication Authority of SA (ICASA).

Background on the Film and Publication Board.

The FPB prides itself in reflecting the opinions of the public and prevailing social concerns when it carries out its legislated duty to protect the social cohesion in our country through content regulation and consumer advice. In doing this, the FPB treads a delicate balancing act between the various rights held by citizens through our Constitution. Chief amongst our concerns is the protection of all South African children from premature exposure to content that could harm their psychological and mental development.

Section 16 (1) of the Constitution of the Republic of South Africa, 1996 provides that everyone has the right to freedom of expression. Statutory limitations on the right to freedom of expression can be found in legislation, one of these being the Films and Publications Act, 65 of 1996 (FP Act). This sets out the mandate of the FPB to protect consumers from harmful content in films, games and publications; protect children from exposure to premature or harmful material; and make the use of children in pornographic material illegal.

As a regulator, the FPB depends on the laws of the country to provide us with the direction which our work should take. An example would be the Constitution of South Africa as well as the laws around Child Protection. We look to policymakers to ensure that the laws of the country keep pace with the changing socio-economic landscape and the needs of the people of South Africa.

The Act in its current form prioritises the regulation of content that could cause developmental harm to children, as well as content that has the potentiality to destabilise the social cohesion of the country through hate speech, incitement to war and violence, and violence against vulnerable groups. The Amendment Bill seeks to strengthen this imperative within a changing socio-economic landscape.