The Film and Publications Amendment Bill is being finalised next week. The portfolio committee on communications will decide whether to approve the Bill and send it to parliament, or to scrap it entirely. We have fought hard to convince them to scrap it – to save our internet.
Film and Publications Amendment Bill history
The Film and Publications Act covers the rights and responsibilities of media producers and consumers. It sets out what kinds of content is illegal (e.g. child pornography) and sets out how media can be classified with age ratings (e.g. graphic violence receiving an R-18 rating). Importantly, the Act mostly covers films and electronic games – not radio and print media.
Historically, films and games would need to be submitted to the Film and Publications Board (FPB) to be classified before they could be broadcast on TV or sold to the public. This made sense at the time the Act was written: the public could only get access to films and games over the national broadcast services, or as physical tapes or disks; it was easy to block those two channels until the content had been classified.
But the Act never anticipated the way we use the internet today, particularly buying and playing videos, films and games online. The Bill was introduced to update how the Act handled the internet, amongst other things. While this is a noble goal in itself, the Film and Publications Amendment Bill is full of poor definitions, vagueness and inconsistencies. Most troubling of all: the Bill still wants to classify content before it can be published.
The problem of pre-publication classification
The argument for pre-publication classification has always been around protecting children from harm. It would be dangerous, the argument goes, to let a film be distributed without being classified, because it would be more likely that a child might see it and be negatively affected.
But there is a very fine line between protection and censorship. Our own courts have said as much, ruling that pre-publication classification in the context of news print media is unconstitutional (Print Media South Africa v Minister of Home Affairs (2012)). A corrupt censor could easily prevent vital information from being distributed to the public – content critical of the government, for example.
In the context of the internet, where we all upload, stream or otherwise “publish” media in the form of Youtube videos or Facebook photographs, this is even more dangerous. Some of the problems with the Bill include:
- User-generated content is included under the definition of “film”, meaning that Facebook or Youtube videos might need to be classified before they can be uploaded;
- The difference between commercial and private distribution is unclear, meaning that some private use could be seen as commercial, and require you to be registered as a distributor with the FPB;
- Live-streaming is not exempt from any of these requirements, meaning that live-streams (which by definition have no time between recording and publication) can’t be classified, and are therefore illegal.
Our path forward
We take internet freedom very seriously and Nicholas Hall, one of our attorneys, took it upon himself to champion this cause. His submission to the portfolio committee formed a large part of the fight against the Bill, and we are eager to see what comes of it. The committee will decide the ultimate fate of the Bill next week, on the 25th of October.