The 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 aims to introduce a number of changes including harsher rules to protect children from disturbing and harmful content, and to regulate the online distribution of content such as films and games.

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. This includes a possible fine not exceeding R150,000 or to imprisonment for a period not exceeding two years and/or to both a fine and imprisonment not exceeding two years. Where the individual is identified or identifiable in said photographs and films, this punishment rises to a R300,000 fine and/or imprisonment not exceeding four years;

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. This includes a possible fine not exceeding R150,000 and/or imprisonment for a period not exceeding two years;

ISP requirements: 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.

Notably, some of the above changes have previously come under scrutiny from members of industry and the public, over concerns that it would be used as a means of censorship for online content.

This has led to the bill being dubbed the ‘internet censorship bill’ as it has made its way through parliament.

Censorship?

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’.

“It embarrassing that the document in its current form has gone through parliament and made its way to the president,” he said.

However, Cull acknowledged that there is definite value in what the bill is trying to do.

“We know that content is being distributed online, and if you have made a decision that you want to give people information on what they want to consume, this should apply online and offline.

“This is the same for DVD shops and Showmax – there is no difference,” he said.

However, Cull said that the problem is that the lawmakers don’t fundamentally understand the environment they are legislating in.

He added 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,” he said.

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

Cull said this was problematic as the FPB, which is appointed by government, should not be making decisions as to what is and isn’t allowed speech under the South African Constitution.

“When we can see that the courts struggle with these issues, there’s no place for politicians directly appointed by a minister to deal with them,” he said.

Questions around the bill

These sentiments were echoed by legal expert Nick Hall of MakeGamesSA, who said that there are a number of questions still surrounding the bill.

“The big question around the bill has always been enforceability and the likelihood of the FPB to do anything with it,” he said.

“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,” he said.

Hall said this was most evident when the FPB effectively censored the movie Inxeba (The Wound).

“The everyday person probably won’t be affected, but the concern is that it gives a gateway for the people to start regulating content in a way that they should never really be allowed to do.”

He added that there are a number of amendments which are positive and which needed to be introduced – specifically those surrounding child pornography and ‘revenge porn’.

“It’s just that this attempt to regulate online content is incredibly ham-fisted,” he said.

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