23rd February 2024 11:00 am
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Africa’s “worst internet censorship law” gets updated, and it’s not that bad

South African online users received a bit of a shock last year, when the Film and Publications Board (FPB) released its Draft Online Regulation Policy, a document designed to bring the FPB’s powers up-to-date for an age of digital distribution.

The organisation maintained its primary purpose was to protect children by regulating the availability of inappropriate content online, but because the language of the original document was so broad reaching the US-based Electronic Frontier Foundation (EFF) called it “Africa’s worst new internet censorship law.”

Well, the FPB released a final version of the regulations yesterday, following a lengthy consultation process in which many organisations submitted their thoughts on the original proposals.

We have been working through the document, and at first glance it does seem that a lot has changed for the better. The biggest single improvement is a new clarity around its mandate. It’s much more specifically aimed at the classification of “online films and games”, which sounds much more reasonable than the land grab from the internet possible under the original wording.

What’s more, there’s the tantalising prospect of mobile games being completely excluded:

Section 23(“) of the Act sets out a process for the exemption of a class of films or games from classification… Typically, games distributed through an app store have certain common characteristics… This gives them the attributes of a class.

Furthermore, the new document now explicitly excludes User-Generated Content (UGC). The original draft suggested that the FPB would have the power to pull any content uploaded to YouTube or Facebook which hadn’t been classified.

In the new document, it admits monitoring such platforms is impracticable: “the volume of UGC is enormous,” it states. It also admits that as the majority of YouTube videos etc are hosted overseas, it doesn’t have a legal mandate to require a firm like Google to pull videos.

It does, however, reserve the right to request takedowns or instigate legal action if someone complains about a video or other piece of UGC, or if it should be classified as adult content.

“The Policy notes that the bulk of this content is unclassified and recognises that there is an enormous quantity of such content, most of which is produced, hosted in and distributed from foreign jurisdictions. As a consequence, the Board does not have the necessary resources to classify UGC,” Ellipsis Regulatory Solutions commented.

In addition, the FPB has also accepted that it won’t be able to classify everything offered by legit content providers – and we assume they mean the likes of Netflix. It’s also laid out pretty admirable rules for self-certification, even allowing for non-FPB ratings – like the ones used by Netflix currently – providing they are consistent with the South African standards.

“Co-regulation will create more opportunities for foreign investment in the country as more and more companies will find SA attractive to sell the media content in,” say the explanatory notes.

The new regulations also makes it clear that it’s primarily concerned with films and videogames, easing some fears that the regulations could be sneaking censorship in via the back door.

Another promising section refers to the board’s mandate to promote safe internet use and educate kids and adults on how to stay away from dodgy content online – although the budget for this, R250 000 a year – seems miniscule.

We’re chatting to experts in the field about their feelings towards the new document, but there are a couple of areas of concern that we think remain after a first read. The first is that some definitions remain broad. In particular, while the regulations make it clear that they do not apply to “bona fide newspapers or magazines published by a member of a body recognised by the Press Ombudsman”, it still claims authority over “certain publications” who aren’t overseen by the press watchdog. That’s a concern that sticks out, because it would include us, for example.

This isn’t helped by the fact that the definition of UGC is an odd one, including both “professional and amateur” productions. We think that the distinction was supposed to be indicate the platform, so that user comments on a news article and a self-hosted blog would fall under the FPB’s remit, but the wording looks like it could include professionally written/filmed content which by definition is not UGC.

On the whole, though, this looks initially like victory for good sense and the excellent work of industry and pressure groups like R2K (not to mention the media, including us) in getting bad proposed legislation changed before it can do harm.

Certainly it’s been well received by some.

“The Board intends that the Policy will creative an effective regulatory framework for the classification of digital content. The Policy also seeks to create a basis for a form of co-regulation between the Board and industry for the classification of digital content distributed on mobile and digital platforms,” added Ellipsis Regulatory Solutions.

Now, of course, there’s just the small matter of the equally contentious Film and Publications Board Act Amendment Bill to worry about.

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