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SA in for nasty surprise if 'Internet Censorship Act’ is enacted

Read time 5min 10sec

South Africa will be in for a “nasty surprise” if the proposed draft regulations to the controversial Films and Publications Amendment Act come into effect.

This is according to the legal fraternity, which has expressed concerns that if the draft regulations of the Films and Publications Amendment Act, also referred to as the “Internet Censorship Act”, do not receive enough resistance from the public, they could soon become operative.

This could lead to civil society taking legal action against government, as certain aspects of the regulations contain constitutional infringements on citizens' right to privacy and freedom of expression.

Communications and digital technologies minister Stella Ndabeni-Abrahams published the new draft Films and Publications Amendment Regulations for public comment in the Government Gazette on 3 July, with the period for public comment lapsing on Monday, 17 August.

In September 2019, president Cyril Ramaphosa appended his signature to the controversial Bill, signing it into law – at a time when the country was already knee-deep in questions about the law’s role in inhibiting freedom of speech – and whether there are options to it.

While it has been signed into law, the Act will only become operational upon finalisation of the draft regulations that assist the Film and Publication Board (FPB) to implement the Amendment Act.

The aims of the draft regulations are to make provision for online content distribution, and allow the FPB to be the final arbiter to determine what forms of expression are allowed or not allowed online. It also stipulates that commercial online content distributors have to submit content available on their platforms for classification by the FPB, or enter into individual exemption agreements with the FPB.

As SA edges closer to finalising the regulations, the Act has once again come under fierce scrutiny, with the Free Market Foundation warning of a “nasty surprise” if government does not reconsider the stipulations that would see the Film and Publication Board overstepping 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.

“By allowing the government, specifically FPB, to be the final arbiter to determine what forms of expression are allowed or not allowed online, the draft regulations pose a grave threat to the constitutional right to freedom of expression in general, freedom of the press in particular, but also to the right to privacy,” says Martin van Staden, head of legal policy at the Free Market Foundation.

“The Constitution tells government to back off, and civil society is echoing that demand. There is no doubt that if government proceeds with these regulations, and particularly if it tries to enforce them, they will be challenged in the courts on the basis of their inconsistency with the Constitution, and it is very likely that the courts will uphold South Africans’ constitutional freedoms and set the regulations aside.”

Section 14 of the Constitution provides that everyone has the right to privacy, which includes the right not to have the privacy of their communications infringed, Van Staden points out.

Martin van Staden, head of legal policy at the Free Market Foundation.
Martin van Staden, head of legal policy at the Free Market Foundation.

Overstepping boundaries

Section 16 of the Constitution guarantees to everyone the right to freedom of expression and freedom of the press, provided that expression does not call for war, for imminent violence, or for harm to be done to people based on their race, ethnicity, gender, or religion.

“In a free society, such as SA, it should not be up to government to decide what people may or may not say or think – freedom means people may say things that are deeply offensive or problematic to others, and that violence may not be used against them for doing so. The obvious exception is when the act of creating the content that is to be communicated is itself illegal, for instance child pornography, contract killing, or incitement to commit a crime,” he adds.

Carla Collett, a partner at Webber Wentzel, says the draft regulations could be amended prior to being enacted.

“The objects of the Amendment Act and the Draft Regulations, as well as the rights which they aim to protect, must be balanced with the right to freedom of expression in order to determine whether or not such right can be justifiably limited.

“Written representations from stakeholders and members of the public will be considered by the FPB when finalising the draft regulations. This is important, as industry's input helps to determine whether or not the draft regulations can practically and feasibly be complied with,” explains Collett.

The FPB says the intent of the Films and Publications Amendment Act has always been to ensure citizens of SA are protected from content in films, games and certain publications that could cause them moral, emotional or psychological harm.

“The Films and Publications Amendment Act, 11 of 2019, brings the law in line with advancements in digital technologies, to protect against harmful content online,” says Abongile Mashele, acting CEO of the FPB.

“This is done by: making content which advocates propaganda for war, incites violence, or advocates hate speech illegal; making films or photographs depicting sexual assault and violence against children illegal; providing mechanisms for the registration of commercial distributors of content with the FPB, and the pre-distribution classification of films and games in order to give citizens advance knowledge of the type of content that they view or expose their children to, enabling them to make informed viewing choices.”

Mashele points out that the Department of Communications and Digital Technologies is looking at extending this week’s deadline to ensure more citizens are able to comment.

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