The Film and Publication Board’s new Draft Online Regulation Policy has been touted as a measure to protect the children. But if the children of our future get to take a look at its deeply censorial and draconian measures, they ought to be extremely offended.

The Film and Publications Board’s (FPB) Draft Online Regulation Policy has been called “Africa’s worst new Internet censorship law”. Condemnation for the policy has been swift, damning, and widespread, and an online petition against the policy quickly gathered thousands of signatures. Many decry the policy as an attempt to censor the Internet in South Africa.

To its credit, the FPB has shown a remarkable level of willingness to openly engage the public and its critics with regard to the policy, hosting a series of public consultation sessions around the country. Last week, such engagements played out in part via the media, and the FPB hosted a public engagement session at the Turbine Hall in Johannesburg. I took part in those engagements, and below is an account both of what happened, what is wrong with what happened, and some additional analysis of the FPB’s fundamentally flawed arguments.

It is worth noting that since last week it has come to light that the FPB plagiarised significant Sections of its draft online policy from the Australian Law Reform Commission’s 2012 report. Perhaps the most worrying portion of plagiarism is this: page 24 of the Australian document, includes a Section titled ‘Guiding principles for reform’. Page 8 of the FPB’s policy has a Section entitled ‘Guiding principles for an online content regulation policy’. The eight principles listed in both documents are the same.

FPB chief operations officer Sipho Risiba reportedly explained this by saying the FPB had examined various foreign regulation models and adopted measures from those which they believed to be appropriate to South Africa. But this seemingly logical explanation is not without its problems.

The plagiarism from the Australian report puts the FPB in a bad light because it contradicts the claim that they have publicly made that the policy was drafted with “South African cultural values” in mind. The FPB says it consulted broadly before drafting the regulations, and focused on specifically South African cultural values – they cannot tell us with whom they consulted, though, and whose “cultural values” have been considered, which is problematic in and of itself considering the broad spectrum of cultural diversity within our country. What precisely are these South African cultural values? Moreover, the guiding principles of any document ought to lay a foundational golden-thread of purpose which is maintained throughout. However, if the FPB have indeed appropriated (plagiarised) the guiding principles from the Australians, then it means this policy appears to be based on Australian values and not South African ones.

The aspect of the FPB policy which has caused the most alarm is the vague nature of the imprecise language and definitions. The first rule of policy-making is that it ought to be precise and specific, leaving no room for interpretation. The fact that so many concerned parties are all left unsure of who this policy actually applies to, indicates that there is something very wrong with the drafting of the policy. Faced with a badly written policy, all one can do is go with the literal definitions offered in the document, meaning that we have to believe this the policy applies to absolutely everyone who uses the Internet.

Poorly drafted regulations reveal inconsistencies

It is not only about to whom the policy applies, but to what type of content it applies. Here again, definitions are over-broad and resultantly includes everything that is published online. The policy claims to apply to films, games and “certain publications” but it is patently unclear on what “certain publications” means. The regulations are so poorly drafted they also reveal glaring inconsistencies. For example: Section 5.1.1 refers to films, games and certain publications, but Section 5.1.3 only refers to game and films. The difference has huge implications. The broad definitions nonetheless mean this policy covers everyone who wants to publish anything on the Internet. That could include everything from an editor publishing a breaking news story on a newspaper’s website, to an individual uploading a video of a family holiday on YouTube, to you posting your latest Facebook status update.

The problem here is that the policy demands pre-classification of published content. This means that anyone wishing to post anything in a digital space, first needs to apply to the FPB for a digital online distributers licence (and pay a fee) and thereafter submit each piece of content to the FPB for pre-classification before it can be posted online (and pay another fee).

Last week Wednesday I took part in an hour long panel discussion on Radio2000, together with William Bird (Media Monitoring Africa) and Risiba (COO of the FPB). Before entering the studio I raised the matter of the imprecise language within the policy with Risiba. He admitted aspects of the policy are “ambiguous” and went on to suggest that the panic surrounding the policy could be addressed by redrafting the document into “layman’s language” – implying that much of the outcry over the policy stems from “laymen” misunderstanding its contents. I did not have time to mention to Risiba that I have a doctorate in communication science, and currently run something called the Media Policy and Democracy Project – a collaborative research initiative involving a number of academic partners from around the world, which for years has been actively researching and engaging in media policy-making process. That is to say, I am not a ‘lay(wo)man’. But that is not the point. I told Risiba during the on-air discussion that it is incorrect to invite public comment on a policy, and when finding the content of that comment to be negative, to then accuse the collective of commentators of being incapable of understanding the policy instead of taking that comment seriously. By implication, Risiba was saying that those who oppose the policy are simply stupid.

Risiba singled out the Right2Know Campaign, claiming that it is over-reacting in its opposition to the policy with its #HandsOffOur Internet stance and its protest action outside the FPB’s offices in Centurion. Strange, since the South African Constitution contains provisions for the protection of freedom of expression (Right2Know is within its rights to say #HandsOffOur Internet) as well as the right to freedom of assembly, demonstration, picketing and petition – Right2Know, or anyone else for that matter, are fully within their rights to host a protest demonstration over any matter which they may feel appropriate.

For now, anyway.

During an interview on Radio Sonder Grense (RSG) last week Tuesday an FPB spokesperson said critics of the policy, especially the Right2Know Campaign, are being alarmist and taking matters out of context when they claim that the policy applies to everyone, and to individual users of the Internet. The spokesperson continued to explain that the policy aims only to establish a co-regulatory environment between the large online distributers such as Google and the FPB. But all you need do to determine the invalidity of that comment is read the policy exactly as it is. For example, there is this gem from Section 2, page 7 of the policy: “This Online Regulation Policy applies to any person who distributes or exhibits online any film, game, or certain publication in the Republic of South Africa. This shall include online distributors of digital films, games, and certain publications, whether locally or internationally. Upon approval this policy shall have the full effect and force of law, as stipulated in Section 4A of the Act”.

And then there is Section 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 [1996 Films and Publications] Act by applying, in the prescribed manner, for registration as film or game and publications distributor.”

Despite that the policy blatantly states that its purview applies to “any person”, Risiba repeated the FPB’s publically spoken tack at the public consultation hearing in Johannesburg by assuring the audience that the FPB does not intend for the policy to apply to the personal communications of individuals’ users, such as Facebook posts, social media posts, digital communications apps or chat services. He told us that he wanted to allay all such fears.

Policy does allow for regulation of personal communications

Sadly though, and in spite of the publically uttered protestations by the FPB, the policy does allow for the regulation of personal individual communications/publications. Section 7.1 of the policy states, “user created content includes any publication… inter alia, 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.” This clause is particularly scary because it means that the policy over-reaches even that which is distributed online, and can apply to any person who produces any material of any kind and distributes it to anyone. And then, “7.11. Where the user-created content is prohibited or illegal content, the Board shall have the power, in addition to ordering the online distributor concerned to take down the content, to refer the offending and illegal content to the South African Police Services for criminal investigation and prosecution”. This means that ordinary citizens who distribute private personal content may be automatically criminalised for doing something as simple as, for example, sending a WhatsApp message to a friend.

The FPB seemingly did not notice that it contradicted its own public stance on this matter at the Johannesburg public hearing. Their PowerPoint presentation included a slide depicting a photograph of a young girl to the left, and a photograph of a middle-age and overweight man to the right. Below these images were some text, depicting an extract of an online chat-room type conversation between the two characters. The young girl interacts with her online co-chatter while mistakenly believing that he is one of her age-peers. The much older man delivers a misrepresentation of himself in his interaction with the female child, leading her to believe that he is young and attractive. This was shown to the audience to demonstrate how adult predators may utilise the online space to ‘groom’ younger people and lure them into situations which may endanger them, especially with regard to sexual abuse. Sure. No one is saying that this does not happen, and that when it does, it is abhorrent. The FPB used this demonstration as an example to justify its online policy.

But therein lies a problem. The FPB did not recognise the nature of the communications medium which was be depicted in this demonstration. The FPB did not notice that this demonstration is an example of individual online personal and private communications – which is the very thing the FPB has publically assured us it will not aim to regulate. So, with that our faith that the FPB won’t try to monitor or censor our personal digital communications utterly disappears. Poof!

The FPB is doing all of this under the moralistic guise of protecting children from harm, and preventing the distribution of child abuse content (which it calls “child pornography”). It’s a clever tactic because it holds a great deal of moral weight: who can legitimately argue that the protection of children is a not a good thing?

But if we are serious about protecting our children from the evils of this world, then measures to do so must be effective. Due to the impracticality of these regulations, as ‘good intentioned’ as they claim to be, they are not going to be a solution to the problem of children experiencing content that is harmful. Firstly, persons pedalling child abuse content, or material that shows the abuse of children, will simply circumvent the FPB and continue to distribute their material in the deep web unabated. In the meantime, honest and law-abiding citizens who wish only to post reasonable content that has nothing to do with children nor could it be considered as harmful to them, will have their freedom of expression rights infringed upon. The un-workability of the policy means that this regulatory net will not capture online criminals and child abusers.

More appropriate ways to protect children from harm online

Alternatively, there are many other more appropriate things that the FPB should be doing to protect children from harm online. The FPB could work with the department of education to introduce digital literacy tuition in school curricula: the best way to protect children in the digital information age is to empower children to protect themselves. The FPB could roll out wide-scale national digital literacy public awareness campaigns to warn parents of the dangers to their children online, and explain how parents can educate and protect their children. The FPB’s resources would be better spent on researching all the various different kinds of safe-search software available, and make this freely available, and free-to-download for parents to provide an additional safety-net to protect children.

The FPB should commission audience and ethnographic research studies in consultation with children, in order to determine what the South African child’s real and lived experience of the Internet really is. And yes, this means actually talking to real children – not just referring to statistics. These are effective measures and more appropriate to the FPB’s purported goals. For its part, the FPB states that it has conducted research into the matter, which Palesa Kadi from the FPB told the Johannesburg audience, will be released shortly. One wonders however, what was the methodology of that research, what were its aims/goals/hypothesis/research questions, and what were its findings, that it could have informed a policy which is written this badly and which through implementation will do nothing to meet the professed aim of protecting children? We will see.

During the Radio2000 panel discussion, Bird and I questioned Risiba on how the policy will practically prevent children from accessing content online which may be deemed harmful to them. Should a YouTube video, for example, endure the bureaucratic procedure of FPB pre-classification and receive a classification rating of age 18 – meaning that it is not suitable for viewership by children – would anything prevent a child who is browsing the Internet from clicking on that content and watching it? “No,” responded Risiba.

During the public consultation hearing in Johannesburg, Sekoetlane Phamodi from the SOS – Support Public Broadcasting Coalition, questioned whether the FPB is over-stepping its mandate. There is no such thing as ‘child pornography’, he claimed. The term ‘pornography’ is used to describe the representation of a consensual sex act between adult persons, and watching pornography is not illegal in South Africa. Sex acts depicting children do not involve consent (a child is too young to consent to sex) and therefore cannot be described as, or associated with, pornography. Instead, Phamodi pointed out that the representation of sex acts involving children can be considered as nothing other than the depiction of child abuse. The law already provides for and criminalises those who abuse children or who distribute material showing the abuse of children. These are criminal acts and as such ought to be investigated by the authorities responsible for reacting to criminal activity – that is, the South African Police Services. Phamodi made the point that the FPB does not have the authority to do the SAPS work for them.

Mark Weinberg, national co-ordinator for the Right2Know Campaign, raises the point that parents may not be delighted with the FPB’s determining (on behalf of parents) what children may be exposed to, saying: “The footage of the Marikana Massacre was shocking and horrific. As a parent, I had to decide if I wanted my son watch the murder. I chose to show him the footage so that he could better understand the forces driving the inequity he sees around him every day. It was not an easy decision, but I’m glad I got to make it, and not some conservative FPB censor sympathetic to the state. The President is now refusing to release the Marikana Commission Report. As a parent, I’m relieved that the massacre footage is on YouTube and Al Jazeera websites, well beyond the reach of government censors”.

‘We inform. You choose’

It’s worth noting that the FPB’s slogan is ‘We inform. You choose’. In itself, and with parenting in mind, the slogan contains a good principle. It encompasses the practical notion that content has been reviewed and rated beforehand so that viewers, and especially parents, can determine for themselves whether they want to expose either themselves or their children to certain content prior to watching it. If the new online regulation policy comes into effect in its current form however, the slogan would require rephrasing in order to more accurately describe the practical functioning of the FPB: ‘We censor. You deal with it’.

The FPB has had some past dubious dealings with an organisation called the Family Policy Institute, (FPI) which is an unashamed anti-LGBT body. In 2010 the FPB and the FPI co-hosted a seminar on the dangers of pornography which critics claimed fronted a narrow propagandistic agenda of particular religious views, and mentioned the inappropriateness of a state body’s teaming up with a “reactionary, homophobic, anti-abortion, religious group” since this is contrary to the values of openness, diversity of views and the secular nature of the democracy described in our Constitution. Jacques Rousseau also pointed out that the FPI was listed under ‘Useful Links’ on the FPB’s website.

At the FPB’s public consultation hearing Anriette Esterhuysen from the Association of Progressive Communications (APC) questioned the representatives from the FPB on their relationship with the FPI. She also asked why the FPI’s logo, which had long been displayed on the FPB’s website, had been removed the previous afternoon. Kadi provided a somewhat flustered response, saying merely that she did not think that there was anything untoward afoot, that she did not know why the logo had disappeared, that it was something she would check with the IT department, but that she was certain it did not mean anything. Peculiar that a representative from the FPB’s IT Section was also seated on the stage, but he didn’t say anything about this.

There is also the matter of the money. The policy, in Sections 5.1.2 and 5.1.3, demands that anyone who wishes to post content on the Internet need first apply to the FPB for an “online distribution agreement” and thereafter either self-classify content or if that is not feasible, submit “each title” to the FPB for classification. Of course, content distributers would need to pay a fee to the FPB for all of this. The policy does not state what these tariffs will be, but says only that the fee will be “prescribed from time to time by the Minister of DOC as the executive authority”. This raises a constitutional question, since freedom of expression is listed as a basic fundamental human right in the Bill of Rights. But under this type of regulatory regime, freedom of expression belongs then to only those who are able to pay for it.

I questioned Risiba on this at the public consultation hearing. He answered that the FPB is planning to release a tariff structure in the near future, which will take smaller online distributers into account, and adjust the fee structure accordingly. That all sounds good and well, except that it is missing the point. No one, whether you are extremely wealthy or economically disadvantaged, should have to first, ask permission of anyone else to publically say something (pre-classification) or second, pay a fee (even a small fee) before you can do so. This fundamentally undermines the principle of freedom of expression and is unacceptable in a democracy.

Also, this matter highlights again the imprecise nature of the policy. To say that the minister will determine the fees from “time to time” is simply not acceptable in policy-writing. This leaves things entirely at the discretion of Madame Minister, who could pretty much set the fees at whatever amount she please, whenever she please. That FPB says it will soon release a tariff structure is of little consequence now. The tariff structure ought to have been included in the draft online regulation policy, or released in conjunction with it, since the tariff structure is an integral part of the implementation of the policy and cannot be examined in isolation from it. And may I reiterate that according to the principles of freedom of expression rights, these tariffs ought not to exist anyway.

The FPB has claimed that it is really seeking is a co-regulation agreement, and that if material is posted online that is understood to be harmful to children or the like, then they will contact the big distributers like YouTube or Google and ask them to take such content down. But this is actually at odds with what is in the draft policy because that type of thing would only amount to post-publication take-down. However, the policy asks for pre-publication classification. So, what the FPB claims to be thinking with regard to a co-regulatory environment is certainly not accurately reflected in the policy.

What do you want to do with our money, FPB?

And then we come to what the policy demands regarding the actual process of pre-classifying content. The policy itself is damned complicated and near unfathomable in this regard, but here are the basics. First, online publishers must apply for an “online distribution agreement” and pay a fee, after which they will be allowed to self-classify their own content so long as they do so according to the FPB’s guidelines (Section 5.1.2). Then, each time a distributer posts content online, that content has to be submitted to the FPB and another fee paid (Section 5.1.3).

If online distributers want to be permitted to classify their own content, this first needs to be authorised by the FPB (Section 5.5.1). Online distributers would need to employ either full-time or part-time “classifiers” who would have to screen anything going into the online space (Section 5.5.6). If an online distributer cannot afford to employ a FPB-approved classifier, presumably they would then need to submit each bit of new content to the FPB directly for pre-classification and pay an additional fee to do so. It is easy to see that the policy will create an entirely new industry, employing thousands of classifiers and raking in millions of Rands in classifications fees. The FPB has yet to tell us what will happen with all of this money, what it will be used for and why the classifications fees are even necessary. What do you want to do with our money, FPB?

But realistically speaking, it is unlikely that smaller online publishers will be able to afford these costs (of the distributer’s agreement and the employ of classifiers). Even if smaller publishers do attain an online distributer’s agreement, they will not be able to self-classify. They are also not likely to be able to carry the additional cost of applying for pre-classification from the FPB for each new segment of content. In this scenario, one of two things will happen. Smaller publishers will ignore the pre-classifications regime and publish content regardless, in which case they will be automatically criminalised. Or, smaller publishers, many of whom do not turn a profit, will be bankrupted by the additional costs. Under its guiding principles the policy states that, “(7) the classification regulatory framework should not impede competition and innovation, nor disadvantage South African media content and service providers in international markets”. But it will do exactly that.

The FPB is out-of-sync with the current national conversation on media diversity and transformation. A widely mooted political argument is that the South African media, particularly the print sector, remain untransformed and offer too little scope for access to a broad range of opinions and ideas. Although the cost of data and widespread access to the Internet remains a challenge, the Internet nonetheless holds a democratising potential in this regard. Non-profit-generating online community news websites, civil society orientated online news publications, small independent online publishers and individual bloggers offer stories told from perspectives which are rarely carried in the mainstream commercialised and highly monopolised news media. The ANC listed the issue of media transformation as a concern in its 53rd National Conference resolutions, saying, “[t]he reality arising out of this situation is that the majority of South Africans do not have media that report and project their needs, aspirations and points of views onto the national discourse”. The FPB’s current policy, if realised, would have an undoubtedly negative impact on the encouragement of media diversity within South Africa, and be at odds with the variety of efforts to do the opposite.

Disenabler of media diversity and transformation

The policy would serve as a disenabler of media diversity and transformation because smaller publishers will not be able to compete. Small distributers, operating on tight shoe-string budgets, would also be criminalised, because: “7.9. Failure to pay the said classification fee within the stipulated period may result either in the Board withdrawing the online distributor’s registration certificate until the fee is paid, or in the online distributor being penalised and legal action being taken against the distributor in terms of Section 24A of the Act”. As if it’s not bad enough that small distributers could have their slim coffers emptied by the FPB itself, they could further be financially ruined by legal fees.

Critics of the policy have maintained that it may inhibit freedom of expression in journalism, both for smaller independent news publishers or mainstream news media outlets and their online platforms. During the RSG interview, the FPB spokesperson maintained that this would not be so, and went on to explain that the FPB would only intervene and demand that content be taken down should an online news outlet post content that is, for example, deemed to be a depiction of violence.

There are a number of problems with this approach. First it ignores the principle of public interest. For example, the video footage of the Marikana massacre, or the online footage Mido Macia’s murder by the police, or online videos of police brutality during protests, are all violent in nature, but they are all in the public interest. This type of visual material serves to raise a collective consciousness around issues of social justice. All this footage may be violent, but it serves a very crucial societal purpose, and enables an extra layer of accountability. If it is too violent for children to watch, then there are other more effective measures to prevent children from seeing this type of footage (mentioned above).

In the digital age, cellphones capable of recording video footage have become part of a fifth estate. Never mind journalists: ordinary citizens themselves are now broadly capable of holding authorities to account by recording abuses, and distributing such content online quickly. Recent poignant examples emanates from the United States. Amid the context of the #BlackLivesMatter movement, a bystander used his cellphone to record footage of officer Michael Slager shooting an unarmed Walter Scott in the back as he fled. It was just another example after a slew of cases in recent months, of white police officers murdering black citizens in that country.

One recalls the video footage of US police officers shooting Tamir Rice, a 12-year-old black child who was carrying a replica toy gun, only moments after confronting him. Or the surveillance video in which police shot and killed another black man, John Crawford, in a Walmart store while he was holding a toy gun which was available for sale in the store. Within a world in which the legal system and its processes, including in the United States and South Africa, are often severely weighted against the marginalised, and where the perpetrators of such abuses often enjoy impunity or are let off and escape real justice, the exposure of the truth of such abuse is the only retribution ever honestly meted out. It is only a small consolation that while murderers walk free, we are able to personally witness the horror of their crimes for ourselves. But it is better than nothing, and for communities it exposes the lived inequalities of our world. This is a good thing. It is valuable, powerful and should be guarded and cherished. There are many intersections between the consistent policy brutality occurring in both the United States and South Africa. But perhaps Black Lives Don’t Matter to the FPB.

Secondly, if the FPB wants to take-down content posted by news media outlets which it deems to be violent, it disenables the media from performing its social responsibility. It is the media’s responsibility to inform us of what is happening in our country and our world. We live in a violent country and world. If the media cannot show us that, then they cannot fulfil their main responsibility to society.

Third, there are soon to be other measures to deal with the administration of complaints against cases of unethical journalistic content online. A new media accountability system is currently being established by a cross-platform committee (involving Sanef, PCSA, IABSA, NAB) which will include the administration of complaints again online news media, in a similar way to how the Press Council currently deals with complaints against printed newspapers. The FPB’s policy completely ignores that process and makes no mention of it. But again, the FPB is here extending its regulatory tentacles into an arena in which it has not place. Two separate processes of review, including that performed by the Press Freedom Commission, as well as a number of international protocols including the Declaration of Principles on Freedom of Expression in Africa (2002), agree that self-regulation is the most appropriate mechanism for the regulation of journalistic content, and this ought to be performed via the post-publication administration of complaints.

Not fit-for-purpose

Fourth, the FPB is not a fit-for-purpose institution when it comes to the regulation of journalistic content. Journalism ethics is a highly specialised field of enquiry and expertise. The FPB have not yet employed these expertise. To enact the regulation of journalistic content, you have to employ expertise in journalism ethics, an expert Ombudsman, set up a code of ethics, institute a viable complaints procedure, and establish an appeals panel which commonly is headed up by a retired judge. These structures are considered best practice in democracies all over the world for the regulation of journalism content, in terms of ethics and accountability. The FPB policy puts none of this in place.

Moving on: the FPB has not aligned its policy-making process with that of any other media policy-making efforts. The guiding principles of the FPB policy maintain that it serves to rectify “piecemeal regulatory responses to changes in technologies, markets and consumer behaviour…” But what, for example, about all of the work recently performed by the ICT policy review which indeed has dealt with appropriate ways of regulating Internet content? The FPB policy makes no mention of it.

The FPB displays a dearth of understanding of how the Internet actually works. It boggles the mind to imagine that the FPB believes that it is even possible to monitor or restrict the swathes of content which is uploaded onto the Internet each minute. This is impossible. Hundreds of hours of YouTube content is uploaded in South Africa each day, while millions of pieces of new text content is posted online daily.

The FPB has also not taken the aspect of audience expectation into account (a basic concept in media theory). We are talking of at least three generations of people who have either grown up in the digital age, or had the digital sphere grow up with them. These audiences are now fully accustomed to experiencing the Internet as an almost entirely free medium. They have simply never known things to be any other way. To infringe even in the slightest way upon a freedom which is ingrained in the apriori collective knowledge of three or more generations is simply asking for a backlash of magnificent proportions. Ordinary people are likely to ignore the FPB’s requirement of pre-classification as they do e-tolls, or even more so. The FPB is inviting the most widespread civil disobedience that this country has ever seen.

The timeframe allowed by the FPB for all of this to become a reality is also ludicrous. Section 5.4.2. of the policy: “As at the 31st of March 2016, no online distributor shall be allowed to distribute digital content in the Republic of South Africa unless such content is classified in terms of the Board’s Classification Guidelines, or a system accredited by the Board and aligned with the Board’s classification Guidelines and the Act”. Firstly, the mooted deadline of 31 March 2016 provides way too little time for online content distributors to ensure that they comply with the policy, should they choose to do so. But also, Section 5.6 of the FPB draft policy explains how an army of classifiers will be recruited and trained, and course material will be developed for this training. If the entire process of developing course material, recruiting and training an legion of classifiers is yet to happen, how much time will be left over for these classifiers to classify absolutely everything online in South Africa before March 2016? Is this a joke? I hope so.

Ever read Orwell’s 1984?

Speaking of said ‘classifiers’: the policy gives the FPB the supposed authority to “dispatch classifiers to the distributers’ premises for the purposes of classifying digital content”. The online distributer (you and me) need to make sure that these classifiers can do their work “unhindered and without interference”, while the FPB is also indemnified from any “claim, loss or damage arising from classification services”. So, in ‘layman’s’ terms, FPB classifiers can show up at your business or home, rummage through your stuff, pretty much do as they please, and there’s not a damned thing you can do about it. Ever read Orwell’s 1984?

It is worth noting that the Right2Know Campaign is not alone in its opposition to the policy. Many others have voiced dismay and outrage too, and for the record, have done so independently of the Right2Know Campaign. These include among the country’s top and most prominent media lawyers, and various civil society organisations, most notably the SOS – Support Public Broadcasting Coalition, Media Monitoring Africa (MMA), the Freedom of Expression Institute (FXI), and the Association for Progressive Communications (APC), among others. Also worried are various media representative bodies such as Sanef and the Interactive Advertising Bureau of South Africa (IABSA), media stakeholders themselves including Google and the SABC, local and international tech journalists, and local and international prominent freedom of expression activists (some of whom contacted me to ask whether this was an April Fool’s joke).

Individual members of the public have independently taken to the web to set up a slew of different online petitions, Facebook pages and websites, all calling for the same thing – the scrapping of the policy. All these various different organisations and people are in agreement that the FPB draft policy is outrageous, impractical and ought to be abandoned. Most arrived at this position independently from one another. Statistically it is impossible for all of these different people to be wrong. Dear FPB, you have asked for public comment on the regulations, and the public is telling you that the regulations are bad and ought to be scrapped. This is a democracy, and you have to listen.

Significantly, the only public support we have heard for the policy has been from Communications Minister Faith Muthambi and from the ANC study group on communications. Since that is the case, one can only deduce that these regulations are politically motivated to serve political interests.

We know, that the FPB knows, that the current policy is not feasibly workable simply because the pre-classification of everything on the Internet is not practically possible. But all things considered it becomes likely that is not the point. The policy asks for pre-classification, when actually what it does is enables post-publication censorship. It would work like this: someone with a bit of authority sees something on the Internet which they find irritating. They call the FPB. The FPB confirms that the content in question has not been pre-classified, and hence its distribution is ‘illegal’. The FPB orders that the content be taken down. If the content is taken down, its post-publication censorship. Where the content is not taken down, the distributer will face the full might of the law, the police, the courts, etcetera. Although the FPB has publically assured us that this is not what will happen, the draft online regulation policy nonetheless allows for this to happen. Given the current political climate, are we simply expected to accept a badly written policy because the good people at the FPB have given us their word? No.

Overstepping its legal mandate

During the on-air panel, I mentioned to Risiba that various lawyers have noted that the FPB is overstepping its legal mandate with this policy. Risiba told me that these lawyers are misinformed. But at the public consultation hearing the following day one of these lawyers, Justine Limpitlaw, stood up and gave the FPB a legal grilling. Risiba afterward joked that the FPB ought to offer Limpitlaw employment. Not so misinformed after all, eh?

Firstly, Risiba consistently asks that critics of the policy refer directly to the Film and Publications Act (1996 and its subsequent amendments). The policy, he states, is written in accordance with the Act. But Limpitlaw, among others, point out that the policy is in fact out of line with the Act. According to lawyers the FPB Act (which is the current law) allows the FPB to offer guidelines but not to legislate. The draft policy however does try to legislate because it imposes sanctions, and demands certain behaviour rather than offering mere guidelines. Additionally, the FPB does not have the authority to draft policies which effectively serve to legislate, meaning that the online policy is ultra vires and accordingly invalid: only Parliament can make laws.

Limpitlaw asked Risiba whether the current document is in fact a regulation or a policy, since both terms are contained in its title. “It’s a policy”, Risiba replied. Limpitlaw then pointed out that since it is only a policy, if we were to delete each and every provision within it which a policy cannot legally contain without running into trouble with the law, then only about four provisions within the 19 page document would remain. In ‘layman’s’ terms, almost the entire thing is illegal.

Although Risiba tells us to refer to the FPB Act, the question also arises as to why. Why bother referring to an Act which is not likely to remain in its current form much longer? Page 6 of the draft policy tells us that a review of the FPB Act has been submitted to the minister. So, we know that an amended FPB Act is currently being considered. But to draft new policy before the new amended act is passed into law is wrong, and this is doing things backwards. First the amended law needs to be passed, and then policy must follow. Policy cannot precede law.

At the public consultation hearing an audience member mentioned that the Constitutional Court in a past ruling struck down significant Sections of the FPB Act. Risiba responded by saying that this court ruling is only relevant to the exceptions made for the news media by the FPB and nothing more. Micah Reddy, from the Right2Know Campaign, then pointed out that Risiba was incorrect. The landmark Constitutional Court ruling presided over by Justice Skweyiya in 2012, struck down Sections of the FPB Act as unconstitutional. Of particular concern was the matter of prior restraint of publication. The court endorsed a statement by Lord Scarman which read: “[T]he prior restraint of publication, though occasionally necessary in serious cases, is a drastic interference with freedom of speech and should only be ordered where there is a substantial risk of grave injustice”.

So in other words, prior restraint ought to be the exception to the rule and not the norm as the FPB would have it. Furthermore, the court ruled that to restrain content prior to publication in any sort of systematic way would contradict the Constitution, especially with regards to freedom of expression: “The free flow of constitutionally protected expression is the rule and administrative prior classification should be the exception”. Systematically administering and restraining content is precisely what the FPB’s policy aims to do, even though the Constitutional Court has already made it clear that this is simply not allowed. And it’s quite clear that the FPB Act itself is in serious question and on shaky ground. Yet Risiba wants us we need to take the FPB Act seriously.

Lawyers have also pointed out that the FPB policy is out of line with Section 16 in the Bill of Rights in the Constitution because the draft policy allows for prior restraint of speech. The policy provides that it is unlawful to distribute digital content unless such content is first classified and the classification is displayed on the content, along with the logo of the FPB. This amounts to an administration of prior restraint: that is, an administrative body prior to publication exerts where control over what is published. It also amounts to forced content, or forcing publishers into including certain speech acts in their own content, because the FPB insists that its logo is carried on all classified content. This opens the door for an extremely strong legal case to the policy on freedom of expression grounds, which would almost certainly succeed in a Constitutional Court challenge.

Frankly, we expect more of our policy-makers

The guiding principles of the policy state, “classification regulation should be kept to the minimum needed to achieve a clear public purpose”. But these regulations do anything but keep the regulation to a minimum. On the contrary, this is unnecessary and draconian over-regulation. In my personal view, as a media policy researcher, it is also the worst instance of draft policy-writing I have ever seen and I have seen many. Frankly, as citizens of a democratic country, we expect more from our policy-makers.

The FPB has accused the Right2Know Campaign of being alarmist on this matter, and of being arm-chair critics without offering any alternative solutions. That is not true. The Right2Know Campaign has offered a very clear solution. The solution is that the FPB’s abhorrent draft online regulation policy ought to be scrapped in its entirety.

Remembering that the FPB is arguing its online policy is necessary for the protection of children, and considering all of the above, it is difficult not to become enraged. To attempt something which is such a blatant and outrageous abuse of free expression and human rights, in the name of our children is disgusting and morally reprehensible. The policy does nothing to actually protect children, but the FPB (ab)uses the cause of children to surface its own moralistic, draconian, authoritarian position. Our children can be deeply offended. In principle at least, it is the Film and Publications Board who are here, the real child abusers. DM

*Disclosure: Dr Julie Reid is a member of the Media Freedom and Diversity Subcommittee of the Right2Know Campaign, and a Right2Know Campaign Gauteng provincial co-ordinator. She is a project leader at the Media Policy and Democracy Project, the President of the South African Communication Association (SACOMM) and an academic in the department of communication science at the University of South Africa (UNISA). All of the views expressed in this article are her own, and not necessarily those of any of the above-mentioned organisations.