Last week, the South African parliament passed the Film and Publications Bill (or the Film and Publications Amendment Bill). There has been a great deal wrong with the Bill since it was first proposed, and we joined many other interested parties in opposing it. While some of the problems seem to have been patched over, we are sad to see that many still exist. So what are these problems? And why should they concern you?
Film and Publications Bill – the issues
As a final product, we believe the Film and Publications Bill to be largely unworkable. At best, the Bill is a confused cling to power. At worst, it is an unconstitutional grab at freedom of expression. We have three main concerns with the Bill:
- pre-publication classification is unconstitutional;
- the definition of “film” is dangerously broad; and
- non-commercial internet users are caught in the cross-fire.
We have written about this issue before. The Film and Publications Board (FPB) exists to classify the media content that South Africa consumes. It either applies age restrictions to that content, or (in the case of certain illegal content) bans it entirely. This is a good function, which helps society choose the kinds of content that it wants to consume. Generally, classification happens after the work has been published. In the case of films and games, however, the FPB does it beforehand.
This is potentially a very big problem for the freedom of expression. The Constitutional Court has already ruled that prior classification is unconstitutional in the context of print media (Print Media South Africa v Minister of Home Affairs (2012)), and there is no clear reason why films and games should be any different. In the wrong hands, the FPB’s power to restrict access to films and games could be abused. For example, they could censor art or communications that might be critical of the government, or certain people in positions of power. We have already seen this in the extremely unusual X18 rating given to the controversial film Inxeba, which effectively banned the film from being shown in cinemas.
What is a “film”?
The second major issue is that the Bill defines the word “film” to cover more than just commercial releases. It includes all film recordings, including non-commercial videos or communication. In short, some of the things that the Film and Publications Bill wants to classify include:
- the livestream of you and your friends playing Fortnite (before you even start streaming it to Twitch); and
- all of your cat videos (before you upload them to Facebook).
Obviously, this is a problem.
- For streamers, pre-publication classification is impossible by definition – because streaming happens in real-time. The only way for streamers to comply with the Bill would be to self-classify, which would require them to pay for and attend training to do so, hosted by the FPB.
- For general social media users, pre-publication classification could amount to censorship. It would also be practically impossible for the FPB to classify all of the videos uploaded by social media users every day.
Non-commercial online distributors
The issue of censorship of social media users is largely a by-product of bad drafting. An earlier draft of the Film and Publications Bill discussed user-generated content (UGC) directly, but this was removed in response to many submissions against it. The problem, however, still exists.
This is because of two poorly-defined terms:
- non-commercial online distributor, which the act defines as “any person who distributes content using the internet, or enables content to be distributed by a user of online services, for personal or private purposes”.
- distribute, which the act defines as including the “ordinary meaning of that word”.
There are a few problems with these definitions, particularly the confusion about when you are a commercial online distributor. But the main problem is that the requirement for classifying films applies to anyone who “distributes” a film – not just commercial online distributors. More importantly, the “ordinary meaning” of “distribute” is quite broad. It could include uploading to Youtube or Facebook – after all, doing so allows others to access it, so you must be “distributing” it. There is also no explicit exception to this for non-commercial online distributors. In fact, the term “non-commercial online distributor” appears in only two places in the entire Bill – neither of which deal with exemption from the Bill, or requiring classification. Simply put: whether intentionally or not, the Bill requires user-generated films to be classified before they are published.
And what if you fail to do so? Well, the Bill also makes it an offence to distribute a film without being a registered distributor, or to distribute a film that has not yet been classified. This means that everyone who uploads a video to Youtube or Facebook, even for non-commercial purposes, is a criminal. Twice.
The time for public participation has passed, and it seems the FPB failed to take our submissions on board. The Bill will now be considered by the National Council of Provinces (NCOP), and if it is passed there, it will be sent to the President’s desk to be signed into law. There are only a few things that could interrupt this process now:
- The NCOP could refuse to pass the Bill;
- The President could refuse to sign the Bill;
- Before it is signed, a member of parliament could refer the Bill to the Constitutional Court for review;
- After it is signed, a member of the public could take the Bill to the Constitutional Court as being unconstitutional.