‘Internet Censorship Act’ a legal instrument of suffocation, says DA
The Democratic Alliance (DA) has vowed to fight the implementation of the Films and Publications Amendment (FPA) Act (2019), noting it infringes on the constitutional right to freedom of expression, among other “problematic aspects”.
In a statement, the official opposition to the ruling African National Congress says it was caught by surprise by the signing into law of the new Act by president Cyril Ramaphosa. It says it had hoped government would engage with the party first before doing so.
The FPA Act, dubbed the “Internet Censorship Act”, was signed into law in 2019. However, its operationalisation was put in abeyance to allow the Film and Publications Board (FPB) to adequately prepare and undertake certain critical regulatory exercises as required by the Act.
The controversial regulations, enacted on 1 March 2022, seek to make provision for online content distribution, and allow consumer protection body, the FPB, to regulate online content published in South Africa – including social media and other online platforms.
It 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.
It has caused a public outcry since it was first gazetted as a Bill, with many members of the public calling for it to be overhauled for infringing on freedom of speech – noting people can be jailed or fined up to R150 000 for expressing their views online, if they are considered to be hate speech.
Solly Malatsi, DA MP and DA shadow minister of communications, says the DA has over the years made calls to vehemently oppose the Act.
He notes the DA requested a meeting with then communications and digital technologies minister Stella Ndabeni-Abrahams, to ensure the final version of the law does not infringe on the constitutional right to freedom of expression.
“The DA is vehemently opposed to this Act. It seemed the ANC government conceded the Act has problematic aspects. Our right to freedom of expression must be relentlessly shielded from the state’s perpetual undemocratic quest to suffocate and criminalise its citizens’ expressions,” comments Malatsi.
“Trying to police and censor citizens, especially online, shows a government completely blinded by their obsession and out-of-touch with the reality of the situation. The fundamental risk posed by this unfortunate piece of legislation is that it tightens the state’s regulatory grip on what ordinary citizens can say and share online.”
Malatsi is of the view that the Act introduces a needless bureaucratic process for commercial content producers to comply with the FPB, along with ruthless penalties should they fail to comply.
“The DA will fight this vicious assault on our digital freedom with everything at our disposal. And if needs be, we will go to court to challenge it.
“It’s a legal instrument of mass suffocation of all digital freelancers and independent generators of online content who will now be forced to submit to the authority of the FPB for compliance with the tedious provisions set out,” he continues.
However, the FPB is adamant the revisions to the Act came about due to the significant changes in the way that films, games and certain publications are distributed.
“The Act is set to empower and transform the FPB completely, expanding its mandate and migrating it from a simple classification authority to a fully-fledged regulator, with legitimate powers to issue and renew licences (certificates), accredit distributors and impose fines, in case of non-compliance,” says the consumer protection body.
Freedom vs hate speech
Martin van Staden, head of legal policy and executive committee member at the Free Market Foundation, an independent public benefit organisation, notes there are two key barriers in the Act that contain constitutional infringements on citizens’ right to privacy.
“The rights to human dignity, privacy and expression, in the Constitution, guarantee to South Africans a sphere of free action where government may not tread. The government must tread very carefully with its policy around so-called ‘hate speech’.
“The Constitution defines hate speech very strictly: advocacy of hatred that incites harm on the basis of race, ethnicity, gender or religion. There must be an incitement to cause harm, only on those four grounds. If the new censorship bureau tries to police any other expression beyond that, it will unjustifiably be infringing on South Africans’ basic right to free expression,” asserts Van Staden.
Secondly, forcing everyone to submit audio and video content to a regulator to approve before publication means individual liberty has been set aside, he adds.
Government has no standing in the current constitutional era, to regard itself competent to establish a censorship bureau, Van Staden comments.
“The Act signals that the South African government has not yet embraced fully the dispensation that the Constitution envisions for society. It is absurd, that in a free and open society which ours is supposed to be, that people have to submit all manner of non-commercial video and audio material to some regulator for approval. South Africa cannot be governed like an authoritarian satellite state of the Soviet Union in the 1950s.”
According to Van Staden, the South African public could possibly take government to court over the infringement highlighted in the Act, noting the Constitutional Court has proven itself quite eager in recent years to strike down infringements of privacy and free expression.
Modernising digital laws
A public campaign on the draft Films and Publications Amendment Regulations, run by advocacy non-profit Dear SA in 2020, attracted nearly 14 000 comments, with the overwhelming majority rejecting the Bill.
Speaking during a media conference yesterday, communications and digital technologies deputy minister Philly Mapulane noted the Amendment Act comes into operation as governments all over the world are grappling with the escalation in potentially harmful content on digital platforms, amid the entrenchment of the fourth industrial revolution in society.
“Changes to the FPA Act seek to modernise laws that protect the South African public from exposure to prohibited content distributed online, as well as exposure of children to harmful digital content that could have adverse psychological and behavioural impacts.
“Laws are enacted to give effect to the rights enshrined in the Constitution. The FPA Act seeks to balance the right to freedom of expression with the responsibility to protect our citizens from harm and to maintain social cohesion.
“Laws are enacted to give effect to the rights enshrined in the Constitution. The FPA Act seeks to balance the right to freedom of expression with the responsibility to protect our citizens from harm and to maintain social cohesion,” explained Mapulane.