30th November 2023 5:36 pm
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How the FPB Amendment Bill may hurt online content creators

Last night the Film and Publications Board Amendment Bill quietly passed through the National Assembly.

We at htxt have been following the bill’s progress with some concern since it grants the FPB some pretty sweeping – some might almost say Orwellian – power over content creators and platform holders. One only has to look at the board’s recent decision to reclassify locally made film ‘Inxeba’ as X-18, effectively banning it from being shown in mainstream cinemas, as evidence of the power it could soon wield in the digital space.

Now that it’s out of the National Assembly it’s on its way to the National Council of Provinces. After that, the president could very well sign it into law, which would present some very big problems for those whose income depends on online entertainment.

We spoke to self styled ‘recovering lawyer’ (formerly of Michaelsons) Nick Hall to find out what the ramifications of the bill are and what can be done about them.

Last time we spoke you said there were serious issues with FPB Amendment Bill that needed to be addressed. Have they been addressed?

All in all it seems to be an improvement, and a lot of the criticisms have been taken on board, but I still believe some underlying issues have not been dealt with.

In terms of this amendment bill the FPB would have the ability to investigate and prosecute private individuals for messages or communications that they post (if they send them through social media or other online platforms, and provided someone complains).

Should the FPB have this mandate? There is still the general question on how enforceable any of this is, especially against foreign platforms and sites (especially when it comes to the classification of content). I’m uncomfortable with the FPB having the power to essentially switch off parts of the internet because foreign entities or individuals don’t want to have their content classified by the board.

How does this apply to something like Youtube? It is definitely a commercial online distributor (as per the definition) does that mean it has to have all of it’s content classified? If it is assumed that user generated content is not meant to be classified (even though it is being distributed through a “commercial online distributor”) how on earth is the FPB going to be able to monitor the non-user generated content?

So some issues have been addressed, but material issues of constitutionality, practicality and enforceability are still there.

What does this bill mean for content creators?

Generally this is bad news. Particularly for YouTubers and Streamers, other content creators will be less affected.

While the amendment bill will give the FPB the power to potentially classify any content uploaded online, including private communications, they generally will only have this power if someone complains to them about the specific content. Films and Games are treated differently however. Under the bill a distinction is made between “commercial distributors” and “non-commercial distributors”.

Non-commerical distributors of films and games are treated much like the creators of “other publications”, their content can only be classified if someone complains. However commercial distributors are required to have their content classified prior to distribution or face criminal prosecution.

What is considered “commercial” purposes is unclear however. Does enabling ads on your YouTube video mean it is now a commercial venture? Professional YouTubers and Streamers will definitely need to have their content classified now.

The Content Platforms (Youtube, Netflix, Steam etc) themselves are also going to be required to register as distributors and pay an annual fee, based off the number titles they have in their library.

How much oversight/power does it give the FPB?

Quite a lot. As mentioned they technically have the power to classify (and potentially ban, as we saw with Inxeba) any online content, provided someone complains to them about it.

The other concern is that they have built in provisions to allow them to enforce this system, one of which is to force (supposedly, though how technically feasible this is remains to be seen) ISP to block access to content platforms that do not comply.

What are the chances this will be signed into law?

At the moment quite good. From the National Assembly (which it has already passed) it will now go onto the National Council of Provinces, and I simply don’t see them not passing it to from there it goes to the President to be signed into law.

If it is, can it be challenged in some way?

There are only three possible ways to prevent it now (assuming the National Council of Provinces doesn’t reject it).

First, the president can refuse to sign it and send it back to the National Assembly on the point that he thinks it is unconstitutional, or constitutionally problematic. If that doesn’t happen, any MP can ask the Constitutional Court to review it on the point that the amendment is unconstitutional. Finally if it is passed into law, a private citizen or other body could potentially take up legal suit to get the now Act declared unconstitutional.

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