There are many types of media that the law doesn’t deal with properly. Livestream is one of them. Which begs the question: can we stream in South Africa, legally? And what changes, if any, will the proposed Film and Media Amendment Bill make to live-stream services?
Livestream in the law
It seems to be a general rule that the internet moves fast and the law moves slow. If technologies are set and understandable, they can be regulated. But where they are constantly evolving, the law needs to play catch-up.
Until recently, services like live-stream content (Twitch, Youtube Live, etc) had fallen among the terms of internet protocol television (IPTV), video-on-demand (VOD) and over-the-top (OTT) services. In general, these services were handled by the Independent Communications Authority of South Africa (ICASA) and not the Film and Publications Board (FPB). Specifically, ICASA regulated IPTV and VOD services, but gave a broad exemption from regulation to OTT services. Many of the more public types of media distribution fell into this category. This included live-streaming and user-generated content, like Twitch and Youtube. They were unregulated, but legal.
The Film and Publications Amendment Bill
The Film and Publications amendment bill hopes to change how South African law handles various types of modern media. Under the bill, “streaming” is defined as the real-time distribution of a film over the internet. At the same time, “film” is defined exceptionally broadly and can include live streams. Alone, these definitions are not an issue. There is a problem, however, when we consider the bill’s main purpose:
if a distributor wishes to distribute a film, they must be registered with the FPB, and their film must be classified before it can be distributed.
Obviously, this is can’t work: the bill requires films, including live-streams, to be classified before they are released to the public; but live-streams are distributed in real-time. There is no time between recording and distributing in which to classify the live-stream “film”. More troubling, live-stream distributors aren’t exempt from general classification requirements, and they also can’t get a licence from the FPB to distribute without classification.
What does this mean for livestream services?
If the Film and Publications Amendment Bill becomes law in its current form, livestream services like Twitch would be illegal. It is a physical impossibility for live-streams to be classified before distribution, which means it is a legal impossibility for live-streams to exist legally under the new bill.
The Bill has to be changed to properly regulate OTT services, or scrapped entirely in which case the current system will remain unchanged.
