Thought police target 'new' media

By Leon Engelbrecht, ITWeb senior writer

Johannesburg, 18 Jun 2007

Changes made to the Film and Publications Act last week place onerous new obligations on "new" media, says Michalsons ICT lawyer Mike Silber.

He says although not as bad as it could have been, once the law takes effect, any blog or other Internet or mobile content that contains visual presentations, descriptions or representations of sexual conduct, advocacy of hatred, incitement to violence or propaganda promoting war must be submitted for classification before publication. Failure to do so is a punishable offence.

Silber says anyone who distributes a film or an electronic game must register as a distributor with the Film and Publications Board (FPB) and submit all films or games for classification.

"Anyone who knowingly distributes or even advertises films or games without having been registered as a distributor will be guilty of an offence and liable on conviction to a fine or imprisonment for up to six months, or both," he adds.

"This may mean that an ISP which hosts a Tucows mirror (with lots of games for download) or anyone hosting a video-sharing site must register as a distributor and pre-classify any film or game available for download or viewing," Silber says. "This would also apply to games, animations or video over mobile platforms - even if only a few seconds long. At present, classification costs R1 500."

This requirement is "somewhat" mitigated by the introduction of classification committees and the possibility that industry could run its own classification committees under the guidance of the FPB.

Silber complains that in making the amendments, Parliament ignored submissions regarding the inappropriateness of the section requiring the display of the classification decision.

"How one displays a classification decision for a downloadable game 'conspicuously and clearly visible on or through the cover or packaging of the cassette or holder' is beyond me," he says. "It is a clear case of technology ignorance."

He says another new requirement is the obligation on providers of child-oriented services to monitor and provide protection to child users of such a service. "This is clearly defined to confirm that it is the person providing the content or service (or exercising editorial control) that is responsible for compliance, not the ISP or mobile provider."

What the minister said

Arguing in favour of the amendments, housing minister Lindiwe Sisulu said the changes aim to protect children from pornography.

She added that the amendments, as passed, contained a number of compromises to the media. "This compromise says: 'as much state regulation as necessary, together with as much self-regulation as possible'. We have kept our side of the bargain. Now it is up to the practitioners to keep theirs, whether they are active in the traditional print and electronic media, or whether theirs are the newer spaces involving the Internet and mobile telephony."

The minister said the law would now provide consumer advice to enable adults to make informed viewing, reading and gaming choices, both for themselves and for children in their care; protect children from exposure to disturbing and harmful materials and from premature exposure to adult experiences; and make the use of children in and the exposure of children to pornography punishable.

"Young people already have innumerable impressions, demands and stimuli crowding in on them every day through advertising, education, cellphones and the Internet. I submit that it is in the interests of our society and of our young people to pass legislation which provides the basis for the State to protect, inform, and where necessary to intervene in the interests of the vulnerable.

A vote against

However, the Democratic Alliance and Independent Democrats voted against the amendment, saying it will not curb child pornography or the exposure of children to pornography - but instead allow the FPB to set itself up as an Orwellian "thought police". The inevitable consequence will be a burgeoning black market.

"The comment by the CEO of the FPB that it was her intention to 'create a regime to police the industry' was indeed cause for concern and helped confirm this perception," DA MP Sandy Kalyan said in her response to Sisulu.

Kalyan says the Bill as it stands substantially increases the scope of publications which must be submitted for classification.

The broadness of the classification criteria, and the fact that it is so subjective and moralistic, will in reality result in many sexually explicit films surfacing in the black market, she notes. "We should be promoting healthy sexual attitudes rather than encouraging people to break the law."