The Film and Publication Amendment Act was made operational on 1st March and with that came a storm of confusion.

Truth be told, the entire process of getting these amendments updated has been a confusing one. At the heart of the confusion is how content creators will be impacted by the new legislation and unfortunately things still aren’t crystal clear.

The FPB has 17 online distributors on its books, but won’t tell us who they are

Having poured over responses from the Film and Publication Board as well as a conversation with Webber Wentzel, we have a better understanding of how things will work but really, content creators have a lot of work to do in future.

Let’s start with the responsibility content creators have.

For one, your content needs to fall in line with both the guidelines of that platform and those set out by the FPB. Further to this, platforms must be registered with the FPB as a distributor and abide by the regulations it enforces. This means that if you are a creator on OnlyFans, OnlyFans has to register as a content distributor and that content needs to fall in line with the regulations set out in the FPB Amendment Act.

In addition to this, even if OnlyFans is registered and keeps its halls clean, your content needs to meet the rule of law just in case a complaint is filed with the FPB.

“Any person may complain to the Board about unclassified, prohibited content, or potential prohibited content, in relation to services being offered online by any person, including commercial online distributors and non-commercial online distributors” reads the legislation.

Should your content fall foul of the regulations, a takedown notice will be issued and your ISP may be compelled to provide the FPB or the South African Police Services with your identity.

Perhaps the biggest question is how influencers and other content creators who earn money off of the internet will be impacted by this legislation. The sticking point here is the definition of commercial online distributor.

The act reads, “‘commercial online distributor’ means a distributor in relation to films, games and publications which are distributed for commercial purposes using the internet”.

And this is where the confusion stems because by earning money through something such as Google’s AdSense or TikTok’s Creator Fund, your online persona could potentially be classified as a commercial online distributor.

The key here is the platform that is being used.

We recently spoke with Carla Collett, an intellectual property specialist and partner at Webber Wentzel. We asked whether content creators would need to register with the FPB if the platform they were using was registered with the FPB Collett said, “If the platform is regulated and it complies with the FPB regulations you shouldn’t need to register.”

This mirrors what the FPB told us in 2019 but it’s good to have confirmation now that the bill is an act.

FPB Amendment Bill – What it means for streamers and YouTubers according to the FPB

The problem here is that the FPB isn’t sharing which platforms have registered with it. While one could assume that the biggest players in the space are compliant, that is a dangerous assumption to make because the fines you could face are rather high. On that note fines for knowingly distributing or exhibiting a fame or film without registration will be no higher than R150 000. Alternatively, offenders could be imprisoned for a period not exceeding six months or the fine and prison time.

These fines increase depending on the offense with distribution of X18 content without registration potentially earning offenders a fine of up to R750 000.

The worst part of all of this is that we won’t have a clear picture of what is and what isn’t allowed until it is tested in a court.

The prevailing advice from many experts including Collett is to engage with the FPB and ask questions.

“If you’re a content creator and you’re confused with what to comply with or how, the FPB will certainly assist. In all my dealings with the FPB they have been willing to assist and help”, says Collett.

To mirror Collett’s sentiment we have also engaged with the FPB both as Hypertext and private citizens and the board has been able to answer our questions in the .

This means content creators will have to do some leg work because unfortunately neither we nor an attorney can provide the information your specific case demands.There are general rules of course but the onus is now on creators to make sure they are abiding by the law.

You are able to find the FPB’s contact information here and the contact form does work. On that, do note that the FPB is likely being inundated with calls and emails so exercise a degree of patience when contacting them.

Below you can find the FPB’s response to a litany of questions we sent through. Some responses simply lead to more questions but there is a decent amount of clarity which we have identified with bold text where necessary.

Hypertext: What discussions occurred between the FPB and local content creators/distributors on the 1st March amendments?

FPB: The Department of Communications and Digital Technologies (DCDT) is primarily responsible for the process of amendments to the Films and Publications Act, 1996 (Act No. 65 of 1996). Please refer to the DCDT for further information on the consultation. The draft legislation was consulted with industry to solicit inputs in 2015-2016 and again in 2019-2020 after the President signed the Amendment Bill into law.

FPB hosted quarterly workshops across the country where we informed creators/ distributors of films and games about the provisions of the Amendment Act, and to solicited inputs for the revision of the Regulations, which is currently in draft.

H: Can the FPB clearly define its purview in terms of online content and platforms. What now falls under its jurisdiction following the recent amendment?

FPB: Section 18 (1) of the Films and Publications Act, 1996 (Act No. 65 of 1996) prescribes that: “Any person who distributes, broadcasts or exhibits any film or game in the Republic shall in the prescribed manner on payment of the prescribed fee—

• register with the Board as a distributor or exhibitor of films or games; and
• submit for examination and classification any film or game that has not been classified, exempted or approved in terms of this Act …”

The above provides that an entity must register with the Film and Publication Board (FPB) as a distributor or exhibitor of materials to the extent that such a person distributes or broadcasts material in South Africa. There is a distinction between registering as a distributor and the duty to submit the materials for examination and classification.

The word “distribute” is defined in section 1 of the Act as:

“in relation to a film, game or a publication, without derogating from the ordinary meaning of that word, includes –

• to stream content through the internet, social media or other electronic mediums;
• to sell, hire out or offer or keep for sale or hire, including the internet …”

Therefore, any distributor who conducts the business or distributing films, games or publications and which includes commercial online distributors would be required to comply with the provisions of section 18 of the Act.

H: What is the FPB registration process for local content creators and distributors, and are there any unique/out of the ordinary documents or requirements?

FPB: The FPB Client Support Unit has an 8-day turnaround time.

An application for registration as a distributor in terms of section 18 (1)(a) of the Act should be made on the relevant Form provided by the FPB or submitted through an electronic system accessible on the FPB website, accompanied by:

• proof of registration of the company in terms of the applicable legislation; as issued by CIPC
• valid tax clearance certificate as issued by SARS;
• a declaration that the applicant warrants to the best of its knowledge and insofar as it is reasonably aware, that it complies with the laws and regulations applicable to it, with its legal obligations pertaining to its business in general and with its obligations as a distributor of films and undertakes to continue to take all reasonable and necessary steps to ensure that such compliance is maintained;
• completed application form; and
• proof of payment of the prescribed fee.

H: Are there any concerns, or have any been raised, from local content creators and distributors on how this Act will impact their ability to work and earn an income?

FPB: FPB is always cognisant of the need to accommodate local content distributors as well as new entrants into the market. This has been accommodated in the Films and Publications Amendment Tariffs which recognizes and distinguishes between small, medium and large industry stakeholders. FPB hosted quarterly workshops across the country where we informed creators/ distributors of films and games about the provisions of the Amendment Act, and to solicited inputs from them for the Revision of the Regulations, which is currently in draft.

H: Which online platforms that are not currently registered with the FPB, is the organisation looking to create agreements with?

FPB: The FPB assesses the industry landscape on an ongoing basis, through its Compliance function. Distributors who are new entrants or not yet compliant with the FP Amendment Act are engaged to explain the legislation, regulations, Classification Guidelines, and relevant processes. This monitoring function informs the FPB as to non-compliant distributors that should be thus engaged.

The creation of an Enforcement Committee in the FP Amendment Act is an additional tool to increase levels of compliance and enforce penalties. However, engagement and education will always be exhausted first before the matter is raised with the Enforcement Committee.

H: Do private citizens that use Facebook, YouTube, TikTok, Twitch and other big social media platforms have to register to post user generated content that they will potentially earn money off of?

FPB: With the operationalisation of the Films and Publications Amendment Act, the FPB will be engaging several online platforms to discuss compliance. It would be important to note that in certain instances the FPB has entered into non-disclosure agreements with distributors and is not at liberty to share details of these agreements.

H: Does the FPB have a list of entities which have registered as content distribution platforms in South Africa?

FPB: In the 2020/21 financial year, the FPB had 17 online distributors on its books, in various stages of compliance. It would be important to note that in certain instances the FPB has entered into non-disclosure agreements with distributors and is not at liberty to share details of these agreements.

H: As regards classification guidelines, how long does the FPB anticipate these guidelines will take to be approved?

FPB: Section 31 (3)(b) of the Act provides for the publication of the classification guidelines of the FPB as soon as possible after the lapse of every 12 (twelve) months and where necessary to make amendments. In line with this provision the FPB has proceeded to conduct a technical review of the classification guidelines for the current financial period.

In compliance with section 31 (3)(c) of the FP Act, the classification guidelines are open for the public to make representations within 30 (thirty) working days after publication in the Government Gazette. This should occur in the week of 28 March 2022.

The FPB will consider comments and inputs from stakeholders between 29 March 2022 and 6 April 2022 and submit a revised version of the classification guidelines for the consideration and approval of the Executive Committee by mid-April 2022. Thereafter the classification guidelines will be tabled for approval by Council towards the end of April 2022.

[Image – CC 0 Pixabay]