Earlier this week we published comments from the Film and Publication Board (FPB) addressing the controversial Film and Publications Amendment Bill.
Those comments gave content creators a slice of good news, especially if those creators happen to be livestreaming.
The bad news is that the FPB wasn’t all that clear in regards to certain points made. One pain point for us is the wording of non-commercial as relates to distribution of content online.
Not being attorneys, we contacted Schindlers Attorneys for a legal perspective on the bill. The firm has a number of specialisations including sports and entertainment law. The firm is also the first to have a department dedicated to medicinal and recreational cannabis law.
Before we dive into what the attorneys told us we must point out that this is one interpretation of the bill and whether the FPB and the authority tasked with enforcing the bill will interpret it in the same way is unclear at this stage.
We urge you to not take this as the final say on the FPB Amendment bill but rather another opinion worth taking into consideration.
For starters we need clarity on what a distributor is in the context of the bill.
“A ‘Distributor’, in this context, being the film or gaming sphere, is a person who is in the business of selling, hiring out and/or exhibiting films which includes the streaming of content through the internet, social media and other electronic mediums. While on the other hand, an ‘Online Distributor’ refers to a person who is in the business of selling, hiring out or exhibiting digital film, digital game and/or publication(s), through the internet or any other electronic platform. An example of these Distributors would be Netflix, YouTube and other social media platforms,” Schindlers Attorneys tell us.
The bill demands that distributors, online or otherwise, register as distributors in South Africa.
Of course the big question is why?
Schindlers Attorneys tells us that this bill will help insure that users are getting content from accredited distributors. Why do we need this? Well, for one it insures that all distributors are playing by the same rules and more importantly, if you as the user see something that could be harmful to others you can report it and the FPB could act on the complaint.
So what does this mean for you? The YouTuber at home making content in your spare time to make ends meet?
“People who publish any content and do so through an accredited Distributor will not have to register with the FPB and any and all content released by the person is done through the Distributor who has been deemed to be compliant with the Bill. If, however, a person publishes content without the use of an accredited and registered Distributor, then they will need to be registered with the FPB,” the law firm said.
What this means is that channels such as Facebook, Twitter, YouTube and Netflix could register as a distributor with the FPB and your content could be classified under the umbrella of those entities. In addition to this, the aforementioned entities could enter a classification agreement with the FPB so that content uploaded to those channels is classified by YouTube or Twitter, rather than the FPB.
Whether those firms will be registering as distributors remains to be seen but we’ve contacted a few local representatives from Google and Netflix to find out more and we’ll report back when we hear back from them.
Discussions about the FPB Amendment Bill often pull on one topic – censorship, and rightly so.
The fear that many have is that because of the way the amendments are worded, this legislation could be used to censor content that the government might not like.
We asked Schindlers Attorneys about the potential for censorship.
“Section 18E of the Bill makes provision for content published to be referred to the FPB where same is believed to be prohibited conduct, which referral will be considered. Should the FPB believe that same ought to be removed, one of the following steps can be taken:
1. a take-down notice can be issued;
2. a service cessation notice can be issued; and/or
3. a link-deletion notice can be issued.
Arguably, the power of the FPB in this regard amounts to censorship, however section 18E is a mechanism which caters for the shortcomings of the Act and aims to remedy same. Under the Act, people who publish prohibited content are not penalised by the FPB, due to the fact that the powers of the FPB do not extend to the removal of prohibited content.”
What is the purpose of 18E then? Once again, the law firm explains.
“Section 18E allows for complaints lodged to be followed up on, with effective measures in place to address same. As such, this does not amount to censorship, as speech and expression is in no way suppressed but is rather monitored, thus aiding in the maintenance of law and order.”
To sum this up without as much legal jargon, essentially section 18E of the bill gives citizens the ability to complain about a piece of content and for the FPB to be able to address said complaint.
While you can complain, that doesn’t mean the FPB will automatically ban the content. Much like reporting a Twitter user doesn’t immediately get them banned from the platform, there will be a process through which complaints can be addressed.
With all of this said and done however, when asked whether the wording of the bill is a bit to vague. Schindlers Attorneys had this to say.
“We are of the view that the wording of the Bill is vague and can in most instances be interpreted in more than one way. One could argue that the wide scope of the Bill infringes upon fundamental constitutional rights, such as freedom of speech and expression, however until such time as this is tested in a court of law this remains a topic of debate,” the firm said.
And that right there folks is perhaps the biggest problem. We should not have to enter a legal battle to know whether uploading a Let’s Play of The Division 2 is breaking the law.
We fully understand why these amendments need to be made but when a private citizen could face the same punishment as a multi-national corporation, we need to go back to the amendments and fix the wording so as to be more clear.
At time of writing the FPB Amendment Bill is still awaiting the president’s signature before it officially becomes part of the Film and Publications Act of 1996.
The comments from Schindlers Attorneys gives us hope but it also shows us how different folks can read different things in this proposed legislation. The fact of the matter is that the language is vague and things must be made more clear so that whether we are watching or creating content, we’re all doing so legally.