Internet Censorship in South Africa

South Africa's Films and Publications Act, also known as the Internet censorship Bill, came into force when president Cyril Ramaphosa signed the controversial Bill.

Opponents of the law had criticised the vague and broad terminology used; stipulations that would see the Film and Publication Board overstepping into the Independent Communications Authority of South Africa's regulatory jurisdiction; and that it contains constitutional infringements on citizens' right to privacy and freedom of expression.

The new law provides for the establishment, composition and appointment of members of an enforcement committee that will, among other tasks, control online distribution of films and games.

The law extends the compliance obligations of the Films and Publications Act and the compliance and monitoring functions of the Film and Publication Board to online distributors.

The South African Law Reform Commission is debating widespread changes law pertaining to the protection of children. Much of the debate is about serious crimes of child abuse but there is a significant portion devoted to protecting children from legal adult pornography. The commission writes:

SEXUAL OFFENCES: PORNOGRAPHY AND CHILDREN

On 16 March 2019 the Commission approved the publication of its discussion paper on sexual offences (pornography and children) for comment.

Five main topics are discussed in this paper, namely:

• Access to or exposure of a child to pornography;

• Creation and distribution of child sexual abuse material;

• Consensual self-child sexual abuse material (sexting);

• Grooming of a child and other sexual contact crimes associated with or facilitated by pornography or child sexual abuse material; and

• Investigation, procedure & sentencing.

The Commission invites comment on the discussion paper and the draft Bill which accompanies it. Comment may also be made on related issues of concern which have not been raised in the discussion paper. The closing date for comment is 30 July 2019.

The methodology discussed doesn't seem to match well to the real world. The authors seems to hold a lot of stock in the notion that every device can contain some sort of simple porn block app that can render a device unable to access porn and hence be safe for children. The proposed law suggests penalties should unprotected devices get bought, sold, or used by children. Perhaps someone should invent such an app to help out South Africa.

South Africa's National Assembly has officially passed the Films and Publications Amendment Bill, with the bill now scheduled to be sent to President Cyril Ramaphosa for assent.

The bill extends film censorship to online content and appoints The Film and Publications Board (FPB), the country's film censors, as arbiters of internet censorship of hate speech, revenge porn and website blocking.

Some of the other notable changes include:

• Revenge porn: Under the bill, any person who knowingly distributes private sexual photographs and films without prior consent and with intention to cause the said individual harm shall be guilty of an offence and liable upon conviction.

• Hate speech: The bill states that any person who knowingly distributes in any medium, including the internet and social media any film, game or publication which amounts to propaganda for war, incites imminent violence, or advocates hate speech, shall be guilty of an offence.

• Website blocking: If an internet access provider has knowledge that its services are being used for the hosting or distribution of child pornography, propaganda for war, incitement of imminent violence or advocating hatred based on an identifiable group characteristic it shall immediately remove this content, or be subject to a fine.

According to Dominic Cull of specialised legal advice firm, Ellipsis, the bill which is on its way to president Cyril Ramaphosa is extremely badly written. He notes that the introduction bill means that there is definite potential for abuse in terms of infringement of free speech .

One of my big objections here is that if I upload something which someone else finds objectionable, and they think it hate speech, they will be able to complain to the FPB.

If the FPB thinks the complaint is valid, they can then lodge a takedown notice to have this material removed.

These sentiments were echoed by legal expert Nick Hall of MakeGamesSA, who said:

The big question around the bill has always been enforceability and the likelihood of the FPB to do anything with it. Practically, are they going to go after small-scale YouTubers? No, probably not, as they don't have the means to do so.

Instead, my concern has always been that the legislation becomes a tool for them to use censorship.

South Afric's Film and Publications Amendment Bill will apply traditional pre-vetting style censorship t everything posted on the internet in the country.

The National Assembly has approved the bill in a vote of 189 in favour, with 35 against and no abstentions. The bill must now come before the National Council of Provinces for its approval before it can be sent to President Cyril Ramaphosa to be signed into law.

Opposition parties say the Film and Publications Amendment Bill amounts to censorship - and may be unconstitutional. The Inkatha Freedom Party's Liezl van der Merwe said:

This bill through the Films and Publications Board, seeks to take wholesale control of the internet. Among some of the provisions, this bill requires everyone who generates some type of revenue from distributing content online to register, pay a fee and have their content approved and classified before they can post it.

The party's Mbuyiseni Ndlozi says the red berets are prepared to challenge it in the Constitutional Court if necessary.

Update: Further details

9th March 2018. See  article from businesstech.co.za

Speaking to BusinessTech, legal expert and long time opponent of the bill, Nicholas Hall, explained some of the details of the censorship provisions. Hall said that the FPB now has the power to classify and potentially ban films, games and 'other publications'.

Other publications are defined as:

• Any newspaper, book, periodical, pamphlet, poster or other printed matter;
• Any writing or typescript which has in any manner been duplicated;
• Any drawing, picture, illustration or painting;
• Any print, photograph, engraving or lithograph;
• Any record, magnetic tape, soundtrack or any other object in or on which sound has been recorded for reproduction;
• Computer software which is not a film;
• The cover or packaging of a film;
• Any figure, carving, statue or model; and
• Any message or communication, including a visual presentation, placed on any distributed network including, but not confined to, the internet.

Hall said that YouTubers and streamers are most likely to be affected by the new laws:

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-commercial 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.

Hall added that this distinction was particularly problematic as it is unclear what is defined as a 'commercial purpose', and that this could be as simple as enabling advertising on uploaded videos.

All content platforms (Youtube, Netflix, Steam etc) will now also be required to register as distributors and pay an annual fee, based on the number titles they have in their library.

The other concern is that they have built in provisions to allow them to enforce this system, one of which is to force ISPs (eg Telkom, Mweb, and Afrihost) to block access to content platforms that do not comply.

If the Films and Publications Amendment Bill is passed in its current form, South Africans may no longer upload videos to online channels, such as YouTube, Facebook, Twitter and Instagram -- unless they register as a distributor and pay a censorship registration fee.

A spokesperson from the Democratic Alliance party, Phumzile van Damme, said that government is increasingly overplaying its hand with regard to freedom of speech:

There seems to be a firm hand in a broader project of censorship that is very worrying.The 'Internet Censorship Bill' in its current form gives government wide-sweeping powers to censor content on the internet.

The bill seeks to restrict the distribution of digital films in that such content needs to be pre-classified by the Films and Publications Board. The terminology used in this provision is broad enough to include all digital videos and films, also user-generated video materia uploaded to social media platforms.

A section in the bill states that any person who distributes a film or game classified as X18 must keep a register when access to the content is granted to a user. The user's name, address and age will be captured in the register and the CEO of the Films and Publications Board will have access to this register.

Van Damme commented:

This is an unjustifiable breach of the right to privacy, which includes the right to not have your private communications infringed.

Meanwhile as the bill is being discussed in parliament, South Africa's film censors have demand that Google censor seraches for adult material.

The Film and Publication Board has stated it is unacceptable for people to be able to access pornography with a Google search. The FPB made the statement during a parliamentary hearing into submissions on what has been called its Internet censorship bill. Lawyer Nicholas Hall quoted the FPB during the IESA's submissions on the FPB Amendment Bill.

FPB: It is unacceptable that you can type in Pornography and get access to porn, Google needs to take steps to address this

Mobile operators and ISPs could have their licences revoked if they fail to comply with new censorship legislation being developed to govern online content in South Africa.

In a statement, the cabinet said it had approved the submission of the Films and Publications Amendment Bill to parliament. The amendments to the Films and Publications Act of 1996 provide for:

Technological advances, especially online and social media platforms, in order to protect children from being exposed to disturbing and harmful media content in all platforms, physical and online.

Of particular concern to ISPs and telecommunications providers will be the cabinet's declaration that the companies must:

Protect the public and children during usage of their services and Icasa will not issue licences or renewals without confirmation from the Film and Publication Board (FPB) of full compliance with its legislation.

The online regulation policy proposed by government will require all individuals and organisations who upload digital content to first register with the FPB, pay a fee prescribed by the minister of communications, and either submit the content to the board for classification or self-classify in accordance with the board's classification guidelines.

Anyone who does not comply with the policy is liable to pay a fine or face a prison term of up to six months.

Only once in a while does an Internet censorship law or regulation come along that is so audacious in its scope, so misguided in its premises, and so poorly thought out in its execution, that you have to check your calendar to make sure April 1 hasn't come around again. The Draft Online Regulation Policy recently issued by the Film and Publication Board (FPB) of South Africa is such a regulation. It's as if the fabled prude Mrs. Grundy had been brought forward from the 18 th century, stumbled across hustler.com on her first excursion online, and promptly cobbled together a law to shut the Internet down. Yes, it's that bad.

First, the regulation applies, in the first instance, to films and games (regardless of subject matter), as well as to publications containing certain loosely-described forms of sex, violence and hate speech. As to these types of content:

5.1.1 Any person who intends to distribute any film, game, or certain publication in the Republic of South Africa shall first comply with section 18(1) of the Act by applying, in the prescribed manner, for registration as film or game and publications distributor.

5.1.2 In the event that such film, game or publication is in a digital form or format intended for distribution online using the internet or other mobile platforms, the distributor may bring an application to the Board for the conclusion of an online distribution agreement, in terms of which the distributor, upon payment of the fee prescribed from time to time by the Minister of DOC as the Executive Authority, may classify its online content on behalf of the Board, using the Board's classification Guidelines and the Act ...

If you are a video blogger creating films from your basement, the prospect of FPB officers knocking on your door to classify your videos probably isn't that appealing. So, being the forward-thinkers that they are, without actually providing an exception for user-generated content (or a sensible definition of it), the FPB provides an alternative system which places the burden of classifying such content onto Internet intermediaries:

7.5 In the event that such content is a video clip on YouTube or any other global digital media platform, the Board may of its own accord refer such video clip to the Classification Committee of the Board for classification.

7.7 Upon classification, the Board shall dispatch a copy of the classification decision and an invoice payable by the online distributor within 30 days, in respect of the classification of the content in question.

A few definitions are in order here: an "online distributor" could be a South African ISP, which might have no connection with the "global digital media platform" that actually hosts the content. Nonetheless, the ISP is assumed to have the capacity to take down the original video, and to upload a new, classified, version containing the FPB's logo:

7.10 The online distributor shall, from the date of being notified by the Board in writing of the classification decision, take down the unclassified video clip, substitute the same with the one that has been classified by the Board, and display the Film and Publication Board Logo and classification decision as illustrated in clause 5.1.6.

Oh, but it gets worse. Since classification rules already apply to offline films, games and proscribed publications, the regulation purports to be doing nothing more than to be extending the classification scheme to online versions of those materials, so that anyone distributing them over the Internet also has to obtain a license to do so. But then there's this:

7.4 With regard to any other content distributed online, the Board shall have the power to order an administrator of any online platform to take down any content that the Board may deem to be potentially harmful and disturbing to children of certain ages.

That's right, any online platform can be ordered to take down any content distributed online that the Board may deem to be potentially harmful and disturbing . Traditional publishers are subject to no such sweeping, extrajudicial censorship power.

South Africa is one of Africa's largest and fastest growing economies, and for it to adopt such an extreme preemptive Internet censorship regulation would be a serious setback for South Africa's burgeoning online industry, as well as, needless to say, a serious blow to human rights. If you are South African, or have any friends or colleagues who are, please take action by signing the Right to Know petition, and spreading the word about this looming threat.

South Africa's Film and Publications Board (FPB) is expecting to be granted the power to order an administrator of any online platform to take down any content that the Board may deem to be potentially harmful and disturbing to children of certain ages.

The censors have generated a 14-page set of draft rules for online content that would, in theory, have given it the power to order Wikipedia et al to remove images, and then send them an invoice for the cost of doing so.

For Video on Demand services, the board has proposed co-cesnorship, which will allow each streaming provider to classify its own content with an in-house team of people after they are trained, for no more than five days, by the FPB.

By June 2016, everything such streaming providers make available to South African audiences must be rated. That may prove a challenge for in-house teams too, so the FPB draft regulations make another concession -- content classified under another system can be deemed classified by the FPB, if the regimes are sufficiently similar. In practice, a 13 (language) or 16 (nudity) classification imposed by regulators in the US or Europe will be accepted for South African use.

The censors look set to become very nasty about what the board describes as self-generated content. This, the draft rules say, could include a drawing, picture, illustration or painting; recording or any other message or communication, including a visual presentation, placed on any distribution network including, but not confined to, the internet .

Streaming services will be responsible for their own classification expenses, and those who distribute self-generated content can expect an invoice from the FPB once it has decided to classify such content of its own accord. So it appears that finding harmful content is the driver behind an expected eight-fold increase in the money the FPB says it will need to police the online space.

This week the department of communications, under which the FPB falls, published its budget forecasts. In the last financial year, the budget shows, the FPB spent under R1-million for online and mobile content regulation . By 2016 that is expected to increase to R8.2-million.

The department of state security is expected to release, within weeks, a first draft of the Cybercrimes and Related Matters Bill. That law is being drafted behind closed doors, but is understood to be a clear victory for the state security department over the department of telecommunications and the department of communications.