THE controversial Films and Publications Amendment Bill, which seeks to regulate the digital distribution of films and games, has been widely criticised by various stakeholders who have deemed it unconstitutional.
The Portfolio Committee on Communications is this week holding public hearings on the Bill. Critics argue that the Bill is an attempt to censor the internet in SA and have labelled it “Africa’s worst new internet censorship law”.
Among other things, the bill seeks to “strengthen the duties imposed on mobile networks and internet service providers to protect the public and children during usage of their services”.
According to the proposed law, the Independent Communications Authority of South Africa (Icasa) will not issue licences or renewals without confirmation from the Film and Publication Board (FPB) of full compliance with its legislation. The amendment also seeks to deal with “technological advances, especially online and social-media platforms”, and outlaws “revenge porn”.
The Bill states that any person who knowingly distributes private sexual photographs and films without the prior consent of the individual appearing in the films and photographs with the intention to cause such individual distress would be guilty of an offence and liable on conviction to a fine not exceeding R150,000 and/or to imprisonment for a period not exceeding two years.
This aspect of the Bill has been welcomed by many stakeholders.
But industry players have raised concern that the Bill generally seeks to curtail freedom of expression on the internet, and gives the FPB wide-sweeping powers to censor the internet. Last year an online petition against the bill gathered thousands of signatures in just a few days with many condemning some of the proposed amendments.
In his presentation, Mark Weinberg, Right2Know national coordinator, said the proposed legislation was unconstitutional.
“We reject legislation that is overly restrictive and which frames the internet primarily as a threat. Onerous legislation will stifle the empowering, democratising potential of the internet,” he said.
Weinberg said a progressive approach to protecting children and other vulnerable groups online would prioritise education and internet literacy as a means of empowerment
In its presentation to MPs on Tuesday, the Internet Service Provider’s Association said the Bill was vague.
The Association said: “If not all content is required to be classified, then the Act must make it clear which content is required to be classified… the Act must also make it clear who bears the obligation to register with the board and to submit content for classification”.
It also said the proposed legislation should not provide for criminal offences.
“The FPB acts, primarily, as a classification agency: if in the course of its classification activities it comes across material which it regards as falling within the definition of ‘child pornography’ then it must refer the matter to South African Police Service.”
The association said digital literacy programmes remain the key intervention as more and more people get access to broadband
In its submission to MPs free-to-air television channel e.tv said the bill effectively prohibits live streaming completely. E.tv includes two online platforms that stream content. eNCA, e.tv’s sister TV news channel, also publishes numerous news articles via its website. The broadcaster said the Bill inexplicably treats these news articles in a disadvantageous fashion compared to similar or identical articles published in hard copy or online newspapers and magazines, by making them subject to the jurisdiction of the FPB.
It said it was advised that the Bill suffers from at least two constitutional defects: The first defect is that it creates a system of prior classification for content streamed online. The second is that the Bill means that online articles created by broadcasters are subject to the jurisdiction of the FPB even though they are already subject to the jurisdiction of the Press Ombudsman.
The hearings continue on Wednesday.