Gagged

Darryl Bernstein, Baker & McKenzie.

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The Films and Publication Board's (FPB) laudable aim to protect children from the scourge of the internet has civil society, ordinary citizens and lawyers up in arms. This is because its latest policy - the Draft Online Regulation Policy - is essentially a heavy-handed Big Brother's bid to censor the internet, or so say those against its implementation.

The policy, closed for public comment in mid-July, will require companies, community members and non-government organisations to pass everything they want to post on the web via the board for preapproval - that's if the policy does come into effect.

As the policy is vague, its ambit would extend to CEOs having to get pre-approval for posts as innocuous as the endof- year party video, or a blog post on a new product.

Those opposed to the policy argue that this isn't manageable, and CIOs will have to balance getting content approved with not holding up business.

Failure to comply with the policy means companies won't be registered as distributors or content providers. The rub comes in when the definitions are examined because this includes anyone who offers out a 'film', even on YouTube, or posts a blog.

The FPB's aims are laudable; it wants to protect children from the dangers of the internet - from child porn and content that can harm the vulnerable.

Everyone agrees these aims are above reproach - certainly no one is going to come out and publicly disavow the need to protect children from the evils that can lurk on the net, but the rising tide against the policy is unanimous in that there is a better way.

The main argument against the policy is that it's too broad, and is what legal minds call void in its vagueness. It simply cannot be applied practically.

Currently, the board is going through more than 600 submissions and consolidating the public findings before refining the policy and sending it to Parliament and Cabinet for their approval.

One of the more vocal opponents of the proposed policy has been the Right 2 Know Campaign.

Micah Reddy, its media freedom spokesperson, says the policy is 'crazy Orwellian stuff' because if companies don't volunteer their posts for pre-classification, the board will stop them from posting online. Reddy, accusing the board of apartheid-style censorship, says it's faced with an 'existential crisis' because of the reach of the internet. "Its response has been to take its approach to classifying films for TV and the big screen and apply that to online content."

Yet FPB communications and public education manager Janine Raftopoulos says the policy is needed because current law is not 'platform-specific', leaving 'the gate' open for children to be exposed to potentially harmful and unclassified content, as well as online predators.

The FPB is making it up as it goes along.

Dominic Cull, Ellipsis

Sadly, Raftopoulos notes many of the cases the board deals with are around child porn. "More and more, the predators are either taking footage of themselves in the act or they're sharing such footage among themselves," which means this ghastly content gets online.

Raftopoulos adds that the policy wants to ensure those who distribute online content - and fall outside the ambit of the Press Ombudsman - have content classified, such as the movies one would rent in a DVD store.

"Broadly speaking, the policy seeks to ensure compliance by online distributors of content that falls within the ambit of the provisions of the Film and Publication Act 65 of 1996."

Although the policy allows for a co-regulation regime, the board will continue to be responsible for regulatory oversight, which includes providing training on the classification guidelines and liaising with law enforcement agents on issues of non-compliance.

Reddy says, however, that the board's approach is not workable as it doesn't have the means to wade through the amount of content that is generated daily. "Its policy will have little effect on child pornography, which is mostly hidden in the so-called Deep Web, and it will penalise legitimate expression."

Ellipsis founder Dominic Cull says that although the board's intention is not to censor, the policy is so clumsily worded, its real aim doesn't come across well. He says it's as if the board has woken up to the fact that it doesn't really know how to deal with the boundless nature of the internet. "Humanity doesn't know how to deal with the ability to be anonymous online."

The policy, says Cull, raises difficult constitutional questions around the right to privacy and freedom of expression, and how to balance these rights with the need to protect children. "It is without a doubt unlawful."

Darryl Bernstein, a partner at Baker & McKenzie, adds the policy will affect 'any company doing any business in any sector in SA'. He notes the policy draws on definitions in current law - such as publication - which makes it too vague to be adequately policed.

Bernstein also argues the definitions are so broad, they are open to being abused by the board and the burden on posters is too great. "Why is a mining company going to require FPB approval? Every Tom, Dick and Harry has a YouTube account."

Instead, the board should be looking at what parts of the internet it can touch, such as video-on-demand, says Bernstein. "I don't think anyone has a problem with that."

Cull questions if it's necessary for people to submit videos of their children playing a school soccer match to the FPB before they post them online. "The FPB is making it up as it goes along."

The FPB is creating such a mess that a lawyer would not be able to advise a corporate on how to deal with it, adds Cull. "It's too much of a mess to actually implement... Prohibition as a strategy is a non-starter."

Adds industry veteran Adrian Schofield: "Is this a case of policy catching up to tech? Catching up? No. Demanding that 21st-century technology be subject to 19th-century policy decisions - yes."

In response, Raftopoulos says the FPB will work with companies in the ICT sector to ensure 'content' is classified correctly. "There will also be a matrix that will be embedded, a digital fingerprint if you will, to ensure that industry is complying and it will enable us to confirm that the content is FPB-compliant."

The policy also calls for a co-regulation model in which industry plays its part to ensure the online space is regulated, because regulating the World Wide Web comes 'with a lot of costs and resources'. "The FPB is looking to regulate the commercial distribution of online content, as it cannot possibly monitor every social media post by every South African," Raftopoulos says.

"We understand the policy has broad wording, which we've conceded to and we will refine. All we're trying to do is effectively carry out our mandate, even for online, to the extent that we have jurisdiction."

Raftopoulos notes the board has made a concerted effort to engage industry and has also encouraged South Africans to provide solutions in their submissions to areas of the policy they deem inhibitive.

Baker & McKenzie associate Thomas Reisenberger, who attended hearings in Johannesburg, notes even community members in areas such as Alexandra are anti the policy because they use social media to highlight issues like police brutality. He's concerned pre-classification will stop such important events from making it into the general conversation.

Bernstein says the board's aims are laudable, but there are better ways - such as letting the cops deal with illegal acts online via the recently gazetted Cybercrimes and Cybersecurity Bill. "They're fighting a losing battle because the internet is the internet; it can go underground. There are solutions, and this isn't it."

The FPB lacks a legal understanding of the online world, says Cull, and this is where industry needs to help the board out. "There is a problem, and everyone has shared responsibility."

This article was first published in Brainstorm magazine. Click here to read the complete article at the Brainstorm website.