So I’ve been getting some questions on what the Film and Publications Amendment Bill means, practically.
The short answer is: we don’t know.
And honestly, that should terrify you enough, right there. Laws exist to create structure, and structure needs clarity. By creating a piece of legislation that isn’t clear as to who may or may not do what, you’re not creating law and order – you’re creating chaos. Even worse than that, you’re creating loopholes that can be abused.
The Good, the Bad, and the Broken
Before we get into the problems, though, I need you to know that the Amendment Bill does some really good stuff. It goes a long way towards protecting children from mature content online and criminalising the sharing of private sexual content (i.e. “revenge porn”). It does a lot of good, and I don’t want to take away from that. But it’s got some very, very big holes in it as well, that can undermine all of that good. In fact, many people much smarter than me have argued that we can achieve the exact same good by incorporating the relevant sections into another Act entirely (like we did with the Criminal Law (Sexual Offences and Related Matters) Amendment Act). At the moment, though, we have a frankly embarrassing piece of legislation that is about to pass into law.
One of the first things you learn as a lawyer is: don’t put anything into the contract that you aren’t happy with actually occurring. You’ve probably heard a number of people say to you, “Don’t worry, we just put that clause in as standard; we never actually enforce it”. That’s only part of what they actually mean. The rest is, “But we can if we want to”.
So what exactly does the FPB Amendment Bill put into the contract and ask us not to worry about? There’s a lot to talk about here, so I’ll pick out only my least favourite bits – namely the poor definitions, and section 24A. I’ve written about this before regarding commercial distributors, livestream, and online censorship, and the problems seem to have stuck around:
1) Technically, everyone’s a distributor (definitions, s24A)
The Bill defines “distribute” as the ordinary meaning of the word (i.e. sharing with others in any way), but also includes streaming content. A “distributor” is defined as someone who “conducts the business of distributing”, but the concept of conducting business isn’t fleshed out. It also doesn’t matter, considering section 24A(1) and (2) (I’ll talk about them later) apply to “any person who distributes”, not just “distributors” – that’s fine-toothed legal gymnastics for you, but it’s very relevant.
The Bill tries to distinguish between a “commercial online distributor” (who distributes via the internet for commercial purposes) and a “non-commercial online distributor (who distributes via the internet for personal or private purposes). But it’s a meaningless distinction at best, because (again) section s24A(1) and (2) apply to you either way. In fact, the term “non-commercial online distributor” is used exactly 3 times in the entire Bill. That’s once in the definitions, and twice in section 18E, which simply lets other people ask the FPB to classify your unclassified or prohibited content that they see online. Being a non-commercial online distributor doesn’t have any practical effect, under the Bill.
Maybe the Bill really doesn’t mean to include all non-commercial social media users, but it includes them nonetheless. After all, the purpose of the Act is to give South Africans the ability to choose the kind of content they consume. And more and more of that content is coming from users directly.
2) Technically, everything recorded is a film, and must be classified (definitions)
The Bill defines “film” to mean any recorded series of images, including streaming. This means Hollywood blockbusters, livestreams, your drone footage, and your cat videos. Arguably, it could even include GIFs.
According to the Bill, all films have to be classified. As we see above, that would technically include non-commercial online distributors, like everyday social media users. But let’s put that aside for a moment and consider for a second the impact that that will have on the growth of new businesses in the tech and online industries – where people share filmed content every day. I’m talking about streamers, vloggers, webinar hosts, influencers – pretty much any kind of digital content creator.
If you’re active in one of these industries, you’ll technically have to classify your recorded content, and that means paying a fee. You could always apply to be able to self-classify your content, but even that costs money. And even if it’s a small fee, that’s an administrative and financial burden that will make it even harder for small businesses and entrepreneurs to get off the ground. Which is hardly something we need more of.
3) Technically, everyone’s a criminal (s24A(1) and (2))
According to section 24A(1) of the Bill, you’ll be committing an offence if you distribute something and haven’t been registered as a distributor. If convicted, that’s a fine of up to R150,000, 8 months in jail, or both.
According to section 24A(2) of the Bill, you’ll be committing an offence if you distribute something that hasn’t been classified. If convicted, that’s a fine of up to R500,000, 5 years in jail, or both.
Again, even if the Bill doesn’t mean to apply to social media users, it technically still does – which means the FPB can hit us with it whenever it chooses to. And considering most of us won’t know that we should register or classify our works, or won’t be able to afford the registration or classification fees … well, that pretty much makes everything we’ve been doing up until this point a crime.
4) Technically, livestreaming is a legal impossibility (s24A(2))
This isn’t a new issue I have, but rather a specific example of how ridiculously the previous issues apply. If section 24A(2) makes it an offense to distribute something that hasn’t been classified, then obviously that means you have to classify things before you distribute them. Not only is this pre-publication classification (which is unconstitutional in a newspaper setting, and I don’t see why it wouldn’t be here), but it’s also downright impossible in the context of livestreaming. Because livestreams are things that happen … well, live.
So how did we get into this mess?
Now, if you look at the current mechanisms the FPB has in place, it’s clear that they don’t actually mean to affect regular, non-commercial social media users. If you register as a distributor on the FPB website, one of the first questions you’re asked is what kind of business you’re running. But remember what I said about things that people “never actually enforce” in contracts? If they don’t mean for it to affect social media users, then say that in the law. There are only three possible reasons why they wouldn’t: they’re malicious; they’re lazy; or they’re stupid.
My gut is telling me it’s one of the last two, because of the wording of section 18C. This section allows a commercial online distributor to ask the FPB to classify a publication, but doesn’t mention non-commercial online distributors at all. I’m assuming this is because they never considered it necessary to talk about non-commercial online distributors asking for classification, because they never actually wanted to classify non-commercial online distributors’ publications in the first place. But what about section 24A(2)? Technically, these two sections together mean that a non-commercial online distributor will never legally be able to distribute something that isn’t classified (s24A(2)), but will also never be able to classify it (s18C). And that’s just nonsense. Nonsense which is about to become law.
And what about malice? Maybe the FPB really doesn’t care about your social media posts. Maybe it is all just a product of bad drafting, and they will “never actually enforce” it. Well, that’s all good and fine – until it isn’t. Until someone in government decides that something someone has distributed online is outrageous and needs to be silenced. Implausible? Hardly. That’s exactly what the FPB did with Brett Murray’s “The Spear” – the painting that showed ex-President Jacob Zuma’s manhood – or John Trengove’s “Inxeba (The Wound)” – the 2017 film that spoke about homosexuality and Xhosa initiation schools. Granted, these examples were commercial, but they show the FPB’s ability (and willingness) to use its powers to silence critical voices. And we’ve had a long enough history of that in this country already.
And finally there’s the question of how this will impact us internationally. There’s even more we could talk about here, but the short version is this: most online platforms could be regarded as distributors, too. And while Netflix might be an understandable example (and one that would probably end up paying its way, like most broadcasters have to), what about Facebook, Youtube, or Twitch? If the FPB regards them as distributors (and I think they would), then there are a whole bunch of things that they would have to do. They would have to pay to be registered as distributors. They would have to pay to classify all of the films they distribute (i.e. the films that you upload). If they don’t pay to classify each film individually, they could apply to self-classify films according to the FPB’s guidelines, which they might copy and paste as guidelines for you to follow in turn. But the responsibility would still be theirs, because they’re still the distributors, which means they would have to pay the fine whenever you breach those guidelines. Do you really think that Facebook, Youtube, Twitch, or any other platform is going to jump through all of those hoops? I don’t. And what a wonderful excuse wouldn’t that be to block access to social networking sites, if you were so inclined.
Right now, all we can do is hope that the President doesn’t sign the Bill, or that a member of parliament sends it for Constitutional review. If not, and it passes, hopefully a member of the public with deep pockets and a lot of patience does it for us.