Films and Publications Amendment Act leaves online content producers hot under the collar

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Online content producers and influencers are up in arms about the new Films and Publications Amendment Act (FPAA).

The revision of the act demands that online content producers submit their content to the Film & Publications Board (FPB) for classification, to determine whether such expression is permitted online or not. They believe the revision of the act is intended to limit their freedom of expression and censor their content.

The FPAA came into effect on Tuesday, after being signed into law by President Cyril Ramaphosa last month.

The amended act regulates the online distribution of films, games and publications. It entrenches the functions of the FPB’s compliance and monitoring obligations to the classification of that material.

According to the FPAA, all commercial online distributors can opt to self-classify their films and games, provided these comply with certain prescribed requirements, including ensuring that their classification of such films and games is in accordance with the FPB.

Any person who knowingly dispenses “hate speech” on any medium that amounts to propaganda for war, incites imminent violence or advocates hate speech shall be guilty of an offence.

Penalties and fines

. The FPAA prohibits people from sharing private sexual photographs or films on any platform without the prior consent of the individual appearing in such photographs and films. Doing so is deemed to be “revenge pornography”, with the deliberate intention of causing such individual distress.

. Anyone found guilty of this offence will be liable to a fine not exceeding R150 000 or a maximum of two years’ imprisonment, or both. Where the individual’s identity is revealed in the films or photographs, this penalty increases to a R300 000 fine and/or a maximum of four years’ imprisonment.

. The FPB will also monitor compliance with the amended act and deems its existence to be no threat to freedom of speech and media.

The original Films and Publications Act

The act was signed into law in 2019, but was put on hold to allow the FPB to adequately prepare and undertake critical regulatory exercises, as required by the act.

Deputy Communications and Digital Technologies Minister Philly Mapulane said: The move to consume online content is a global one, both in developed and developing countries. We’ve come a long way since the Films and Publications Act was put in place in 1996.

Mapulane said that between 2015 and last year, his department had seen a 40% decrease in the number of appeals against the FPB’s decisions.

The chairperson of the FPB council, Zama Mkosi, said: “The reason for the act is to protect the citizens of South Africa from content that’s likely to cause them harm. As the FPB, we’ve come a long way from the history of censorship.”

She added that the amendment of the act was a reflection of that journey, and was intended to strike a balance between protecting people from harm, while also protecting their right to freedom of expression.

“We can’t overlook the fact that the online space has both benefits and challenges. The FPB model is aligned to international standards. Any distributor wanting to distribute content in South Africa for sale is required to submit it to the FPB for classification.”

Classification, she explained, was not censorship.

“Censorship entails the blocking and removing of content from distribution. In South Africa, prohibited content relates to hate speech, incitement of violence, propaganda for war, child pornography and bestiality,” said Mkosi.

The amended FPB act modernised the existing law and brought it closer to the reality of the digital world, she said. It offered two approaches:

Self-regulation, which involved the FPB entering into licence agreements with online distributors. Using this option, online distributors undertake their own process of classification, using guidelines approved by the FPB.
A distinction between commercial and noncommercial online distributors. Only commercial online distributors would be required to register, said Mkosi.

A member of the general public posting user-generated content online doesn’t fall under commercial online distribution. In other words, they won’t be required to register or submit their content to the FPB for classification. We have no jurisdiction over noncommercial online distributors.

However, the act does apply online in an event of a laid complaint about generated content and if that complaint is aligned with prohibited content such as hate speech and incitement of violence and propaganda for war.

Mkosi said that the additional list of prohibited content includes any content that deals with unauthorised, private sexual photos and audiovisual content depicting sexual violence and violence against children.

“This very important change has been brought about in order to remain aligned with the Constitution.”

Another change is the establishment of an enforcement committee, an impartial quasi-judicial body that will be chaired by a retired judge and will conduct investigations of disputed cases that contravene the provisions of the act.

The committee’s powers will extend to imposing sanctions, as outlined in the FPAA.

In addition to that, there will be an appeals tribunal, which is an independent body, to hear appeals arising from rulings made by the FPB or the enforcement committee.

–-City Press