Ramaphosa and Nthsavheni signed the proclamation on 11 February, and it was published in the Government Gazette on 25 February. However, media and civil society only learned that this had happened on the day the law came into effect because the Film and Publications Board (FPB) invited the press to attend a media briefing about it on 3 March. This is because the Government Printing Works has not published gazettes to its website since mid-January, effectively cutting citizens off from essential information about what their government is doing.
Ramaphosa signed the controversial legislation into law in October 2019, but no commencement date was set until today. Previously dubbed the Internet Censorship Bill, the new law raised concerns among legal professionals over how it could be abused to restrict free speech. “One of my big objections 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,” stated Ellipsis Regulatory Solutions founder Dominic Cull. The Act defines prohibited content as material that amounts to propaganda for war, incitement of imminent violence, advocacy of hatred that is based on an identifiable group characteristic and that constitutes incitement to cause harm, or child pornography.
“If the FPB thinks the complaint is valid, they can then lodge a takedown notice to have this material removed.” This is an issue because, among other things, the FPB is not composed of elected officials but of government appointees who should not be making decisions about what is allowed speech under the South African Constitution. Cull said that when we can see that the South African courts struggle with these issues, there’s no place for officials directly appointed by a minister to deal with them.
In addition to concerns over censorship, South Africa’s nascent YouTube and Twitch communities have not received clarifications on what the new law means for them. Despite the FPB publishing draft regulations in 2020 and draft classification guidelines in February 2022, none of the online content creator community’s concerns has been directly addressed. Specialist digital entertainment lawyer Nicholas Hall explained that even though the amended FPB Act and draft regulations have definitions for a “non-commercial online distributor,” this definition is never used.
Hall, who is also the CEO of Interactive Entertainment South Africa, said this means that even if you make no money from something you post online, the law technically requires you to register with the FPB and get your content classified before you post it. Essentially, the amended Films and Publications Act makes it a criminal offence to distribute a film online without first getting the FPB to give it an age restriction.
If you are convicted, you face a fine of up to R150,000 and imprisonment for up to eight months. Hall explained that the offence created in Section 24(A) of the Act applies to everyone — whether you make money from the videos you post online or not. “Given the broad definition of ‘film’, it will apply to anyone who uploads a TikTok, YouTube film, or any other video,” Hall said. “Now, the FPB is not currently enforcing this, but they are empowered by law to do so, which is very disturbing.”
Cull contended that while the Act was extremely poorly written, it is also unlikely that the FPB would try to assign age restrictions to every video on YouTube. It’s not practical to try and regulate all of social media, Cull stated. “If I take the literal definition of the words [in the law], then everything we as South Africans write, stream, or post online is affected,” Cull said. “The FPB can’t be rationally taken to be saying all Internet content must be classified.”
Revenge porn and responsibility on Internet service providers
In addition to the general definition of prohibited content, the Act also contains specific a section for revenge porn — referred to as the distribution of private sexual photographs and films. Another section prohibits filming and distributing films and photographs depicting sexual violence and violence against children. Where this type of content is found, Internet service providers would be compelled to give the FPB or a member of the South African Police Services information about the identity of the person who published the prohibited material.
If an Internet service provider knew that its services were 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, and that constitutes incitement to cause harm, it could be criminally liable. ISPs could be given a fine of between R150,000 and R750,000, and prison time from six months to five years. A copy of the Amendment Act signed by the president is available on the FPB website.
