Last chance to have your say on the FPB’s “unconstitutional” censorship bill

The Film and Publications Board (FPB) in South Africa raised a couple of eyebrows last year with its draft of the upcoming Film and Publications Amendment Bill.

The Bill, in the early stages of the draft, contained one or two aspects that caused concern among rights groups and internet advocates.

After a public consultation process and a lot of input from various players, the FPB updated a number of points and clarified some issues, presumably to ease tension over the language. The draft has since been handed it over to Parliament for consideration.

Today (26 May) is also the last day (after a recent extension) in which you can voice your opinions on the Bill and let Parliament know what you think about it. Public hearings will be scheduled after the local government elections are held on 3 August 2016.

Any person who wishes to submit issues or comments is invited to do so by emailing or hand delivering their summations to the FPB head office at ECO Glade 2, 420 Witch Hazel Street, ECO Park, Centurion, 0169 (marked for the attention of Ms. Tholoana Ncheke).

But even after the draft has been updated, activism and anti-censorship rights group Right2Know Campaign (R2K) still foresees a number of sticking points.

R2K made submissions to Parliament on the Films and Publications Amendment Bill this week, and prepared a briefing note to highlight the risk it may pose to internet censorship in South Africa.

The issues that R2K has with the Bill in its current form include:

Again, vague definitions

The Bill contains a number of over-broad definitions, e.g. ‘online distributor’ and ‘distribution’, ‘publications’, ‘child pornography’ as well as the overlapping definitions of ‘film’ and ‘digital film’. The definition for ‘digital film’ for example is so broad that it would include any video uploaded, including Vines, GIFs, and snippets of personal videos.

Could penalise small publishers and ordinary users

The definition of online distributors of content is vague: “…a person who conducts business in the selling, hiring out or exhibition of films including the streaming of content through the internet, social media and other electronic mediums’’. That wide definition catches a lot of different individuals and entities in its net. It could mean just a small-scale user, and there is nothing to distinguish between “distributors” who can afford to pay and those who can’t.

It will create confusion in regulation

Content streamed online by broadcasters that are regulated by ICASA will be subject to the authority of the Board. So if a TV station regulated by ICASA now shows its programmes online and is deemed “non-compliant” by the Board, ICASA could be compelled to not renew that TV station’s license.

It is unconstitutional and ultra vires (it goes beyond its legal boundaries)

Importantly, by forcing ICASA to cancel licenses for non-compliance the Bill is unconstitutional (in terms of s192 of the Constitution)

It could duplicate offences in other legislation

Other proposed legislation for governing the internet (e.g. the draft Cybercrimes and Cybersecurity Bill) is currently in the pipeline. The Bill will create confusing overlap and duplication of offences in legislation such as the draft Cybercrimes Bill (which deal with, among others, issues of hate speech, racism and child abuse material on the internet)

It could lead to invasion of privacy and threaten legitimate sexual expression

Distributors of adult content are compelled to keep registers of all instances where access was granted to a user, whose name, address and verifiable age must be noted in a register. This information could easily fall into the wrong hands, and adults should have the right to remain anonymous when it comes to legitimate sexual expression. In other countries on the continent we have seen people “outed” and persecuted for their sexuality and in South Africa there is a great deal of homophobic and anti-LGBTI sentiment.

As for the FPB Regulations, R2K explained that they are still too sweeping and vague.

“The regulations apply to any person who distributes or exhibits any film or game or certain publications in South Africa,” R2K said. “The policy does not distinguish between major players like international video streaming companies such as Netflix and minor players like a person with a multimedia blog.”

“The usage of terms like “distribution” and “content” is unclear – exactly what content needs to be classified and what doesn’t? And what are the cost implications? Will small players be charged the same as big ones?”

R2K is of the opinion that the Regulations are still unconstitutional.

“The requirement to register with the FPB and to pre-classify is a form of censorship. It restrains the free flow of information and violates free expression and the right to both impart and receive information. These are constitutionally enshrined rights. The Constitutional Court has found this form of pre-publication censorship to be unacceptable…


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