• The FPB has strict rules in place for ISPs that it will reportedly start enforcing in January 2023.
• This rules out obligations on ISPs to police their halls for content which violates the FPB Act.
• Failure to do so may lead to fines, prison sentences, or both.

Since 2004 internet service providers (ISPs) have had to register with the Film and Publication Board (FPB). This rule hasn’t really been enforced but the Internet Service Providers’ Association (ISPA) has warned that soon it will be.

This follows the publication of a legal notice in October (PDF) in which ISPs were given notice of certain obligations they now have to comply with, within 90 days of that notice.

The first of these obligations is registering with the FPB and then informing the FPB of this registration. Yes, the notice stipulates that the FPB must be informed that an ISP has registered with the FPB.

ISPs must also inform the FPB of how they have:

• “Moderated their child-orientated services and taken such reasonable steps as are necessary to ensure that such services are not being used by any person for the purpose of the commission of any offence against children;
• Prominently displayed reasonable safety messages in a language that will be clearly understood by children, on all advertisements for a child oriented service, as well as in the medium used to access such child oriented service including, where appropriate, chatroom safety messages for chatrooms or similar contact services;
• Provided a mechanism to enable children to report suspicious behaviour by any person in a chatroom to the service or access provider;
• Reported details of any information regarding behaviour which is
  indicative of the commission of any offence by any person against any child to a police official of the South African Police Service; and
• Where technically feasible, provided children and their parents or primary caregivers with information concerning software or other tools which can be used to filter or block access to content services and contact services, where allowing a child to access such content service or contact service would constitute an offence under this Act or which may be considered unsuitable for children, as well as information concerning the use of such software or other tools.”

Failure to comply with these obligations could cost an ISP a fine of up to R50 000, a six-month prison sentence or both.

That’s not all folks as ISPs also have to taken reasonable steps to prevent access to child sexual abuse material (CSAM), informed authorities about the distribution or hosting of such content and taken steps to preserve evidence.

It’s not just CSAM, however, with content that incites “propaganda for war, incitement of imminent violence or advocating hatred based on an identifiable group characteristic and that constitutes incitement to cause harm” must also be blocked or removed.

“Those who fall within the definition of ISP have no choice but to comply with the registration requirement,” explains regulatory advisor at ISPA, Dominic Cull.

“This is not to say, however, that ISPA does not have serious concerns about the new powers which the FPB has and the manner in which these will be implemented. These have been directly communicated to the FPB,” says Cull.

Among the problems that Cull highlights is that of double reporting. Not only do ISPs have to report criminal conduct such as CSAM to the SAPS, they now need to do the same with the FPB.

“ISPs work with SAPS and other law enforcement agencies in the investigation and prosecution of criminal conduct – including offences relating to CSAM. This is done in accordance with applicable procedures set out in legislation such as the Criminal Procedure Act and the Cybercrimes Act,” says ISPA’s regulatory advisor.

“Having duplicated reporting obligations under the FPB is problematic, particularly where personal information is required to be handed to the Board without any court authorisation,” adds Cull.

ISPs have until 27th January 2023 to provide proof of registration with the FPB. It’s worth noting that registration comes at a once-off cost of R678.76.

[Image – Taylor Vick on Unsplash ]