South Africa’s Film and Publication Board (FPB) has fined 21 commercial content service providers for unlawfully distributing explicit or harmful content online, contravening the Films and Publications Act (FPA) of 1996.
During a media briefing in Johannesburg this morning, the FPB announced its enforcement committee has imposed a total of R16.175 million in fines following physical and online compliance inspections conducted by the content regulator’s compliance officers.
The affected distributors, based in SA and abroad, were found to be non-compliant with the Act, and included films and games distributed through both online and physical channels, with most content distributed online, according to the FPB.
The penalties range from R150 000 for distributing films or games in SA without being registered as a distributor, to R750 000 for distributing unclassified adult films and distributing such material without a licence to operate adult premises.
The FPB is a government agency that classifies and regulates films, video games and certain publications to protect children from harmful content and other violations of the FPA Act of 2019.
Speaking during the media briefing, advocate Makhosazana Lindhorst, acting CEO of the FPB, said some of the distributors were also fined for failing to display age restrictions and consumer advice clearly and conspicuously on films they distributed online.
“The FPB is committed to transparency and strict regulatory compliance. Following rigorous physical and online compliance inspections conducted by FPB compliance officers, non-compliant distributors were found to be in direct contravention of the provisions of the Films and Publications Act,” explained Lindhorst.
“These enforcement actions involve 16 distributors based within South Africa and the rest are based abroad. The non-compliant entities engaged in the distribution of online games, as well as films, including adult films.”
The enforcement committee has powers to investigate cases referred to it by the FPB board involving alleged non-compliance with provisions of the Act by service providers or exhibitors of films and games in SA, Lindhorst added.
Established in 2022, the FPB enforcement committee is described as independent and impartial, and performs its functions without fear, favour or prejudice in accordance with the law.
It is chaired by retired High Court judge Justice Thokozile Masipa.
“The latest enforcement action therefore extends beyond physical distribution, with the regulatory framework applying to providers operating online and reinforcing requirements around registration, classification, licensing and measures intended to restrict minors’ access to prohibited or harmful content. Where appropriate, the committee can also impose fines or suspend a distributor’s registration certificate,” Lindhorst stated.
Under scrutiny
The Films and Publications Act 65 of 1996 established SA’s framework for regulating the production, possession and distribution of films, games and certain publications through classification, age restrictions and consumer advice, with a particular focus on protecting children from harmful, disturbing and age-inappropriate material.
It was amended in 2019 to modernise the laws governing the protection of the public from prohibited content and to streamline the internal functions of the FPB so as to make provision for online content distribution. The amendment also allows the FPB to be the final arbiter to determine what forms of expression and content is allowed or not allowed online.
Sections 24 and 27 of the Act set out consequences for non-compliance with its provisions and regulations by content service providers.
“The announced enforcement actions form part of the implementation of the Films and Publications Amendment Act of 2019, which seeks to modernise the laws governing the protection of the public from prohibited content distributed online, as well as children’s exposure to harmful digital material.
“Distributors of publications, films and games classified as ‘X18’must register with the FPB. They are required to apply for an exemption to distribute publications, films and games classified as ‘X18’. The distributor must indicate how it shall ensure children under the age of 18 would not be able to access ‘X18’ content or the promotion thereof.”
The legal fraternity has over the years expressed concerns regarding what it called the “Censorship Act”, noting it poses a grave threat to the Constitutional right to freedom of expression in general and also to the right to privacy – by determining what forms of expression are allowed or not allowed online.
Furthermore, legal pundits complained that the FPB is overstepping its boundaries into the Independent Communications Authority of South Africa's regulatory jurisdiction, by appointing itself as an arbiter of what is, and what is not, protected speech online.
The legislation provides for particularly severe consequences where X18-classified material is knowingly distributed or exhibited to people under the age of 18.
“Any person or content provider who knowingly distributes or exhibits online or physically, a game or publication that has been/would have been classified ‘X18’ to a person under the age of 18 years will be liable to a fine of up to R750 000 or face imprisonment not exceeding five years, or both.”
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