What you need to know about the Films and Publications Amendment act

On the 2nd of October 2019 President Cyril Ramaphosa signed into law the Films and Publications Amendment Act which is controversially called the “internet censorship bill”.

Background

Minister of Communications Ms Faith Muthambi in an interview prior to her presenting the bill to Parliaments Portfolio Committee on Communications stated that “we are witnessing a failure of self-regulation in certain sectors of the industry and therefore, a much coordinated co-regulation model that provides for the involvement of industry and government is required”. She also added that “The Department of Communications is not seeking to control the internet, but safeguard minors and vulnerable persons in the in the best way possible”.

The objectives, amongst others, of the proposed amendments are: –

  • align the definition of child pornography to the definition in terms of the Constitutional Court judgment in the case of De Reuck v DPP 2004 (1) SA 406 CC;
  • align the definition of sexual conduct to the definition in terms of the Criminal Law (Sexual Offences and related matters) Amendment Act 32 of 2007;
  • give effect to the constitutional amendments of section 16(2)(a) as instructed by the Constitutional Court in PMSA v Minister of Home Affairs and Another (CCT 113/11); and
  • provide for the establishment of a co-regulation system that will allow for accreditation by the FPB of independent classification bodies to classify their own digital films, games and publications.

Therefore, the Bill was not made with the intention with creating a new regulatory regime but as a means to strengthen the law by closing the gaps identified in the Films and Publications Act in relation to online content regulation.

Effect of the Amendments

Revenge Pornography

No person may distribute through any medium, including internet and social media, a private sexual photograph or film if the disclosure is made without the consent of the individual(s) who appear in the photograph or film and with the intention of causing that individual harm.

The prior consent of recording the film or taking of the picture does not carry over to being consent to distributing it. The only defence available to the person who would have distributed the film/picture would be for them to prove that they reasonably believed that the disclosure was necessary for the purposes of preventing, detecting or investigating crime.

If the individual(s) are not identified or identifiable you may be liable for a fine up to R150 000 or 2 years’ imprisonment or a combination of the two. If the individual(s) the penalty rises to affine of R300 000 or 4 years’ imprisonment or a combination of the two.

Child pornography

No person may create, produce or distribute in any medium, including the internet, and social media any films or photographs depicting sexual violence and violence against children.

Any person who knowingly distributes private sexual photographs and films in any medium including the internet and social media, without prior consent of the individual or individuals in the said sexual photographs and films with the intention to cause the said individual harm shall be guilty of an offence and liable upon conviction, to a fine not exceeding R150 000 or to imprisonment for a period not exceeding two years or to both a fine and such imprisonment.

Hate speech

No person may distribute through any medium including the internet and social media, any film, game or publication which amounts to propaganda for war, incites imminent violence or advocates hate speech, if they knowingly do so, they will be subject to a fine of up to R150 000 or two years’ imprisonment or a combination of both.

Hate speech is defined in the act as “includes any speech, gesture, conduct, writing, display or publication, made using the internet, which is prohibited in terms of section 16(2) of the Constitution of the Republic of South Africa, 1996, which propagates, advocates or communicates words against any person or identifiable group, which words could reasonably be construed to demonstrate a clear intention to be harmful, to incite harm and promote or propagate hatred against the said person or identifiable group”

Internet Service Provider

If an internet provider is found guilty of hosting or distributing child pornography, propaganda for war, the incitement of violence or the advocation of hatred based on an identifiable group of characteristics, the content will immediately be removed or censored. The internet provider will then also be subject to a fine.

Concerns raised against the Act

There is concern that as the Film and Publications Board, generally, classifies work published after it has been published, however in the case of films and games the FPB does it beforehand. This is argued to be potentially unconstitutional as the Constitutional Court has already ruled that prior classification is unconstitutional in the context of print media. Furthermore, it is believed that in the wrong hands this power may be abused.

Greater concern exists with the broadness of the definition of the term “film” which is as follows in terms of the Act “any sequence of visual images recorded in such a manner that by using such recording, such images will be capable of being seen as a moving picture, and includes any picture intended for exhibition through any medium, including using the internet, or device”. This can be argued include all film recordings, including non-commercial videos or communication. This would further lead to the question on how would the Film and Publications Board, practically, classify all of the videos uploaded by the social media users and streamers every day?

Even so, this still remains a much needed step in the right direction in terms of legislature keeping up with the ever changing needs of the vulnerable groups of the country.

BY: Sindisiwe Goba – Randles Attorneys

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