Commercial online content service providers who publicly distribute explicit or harmful content online could be fined up to R750 000 or face a five-year prison sentence, warns the Film and Publications Board (FPB).
In a briefing document shared with ITWeb yesterday, the FPB says it is preparing for the mammoth task of online content analysis, as it transforms into a fully-fledged online content regulator, in preparation for the implementation of the Films and Publications Amendment (FPA) Act of 2019.
The Act seeks 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.
In the documents, the content-classification body highlights the far-reaching consequences of not complying with the laws and regulations of the Act for online content service providers, also referred to as Internet Access Service Providers, and Internet Service Providers (ISPs).
It has urged businesses which offer online content or those providing access to the Internet by any means, to submit content available on their platforms for classification by the FPB, or enter into individual exemption agreements with the FPB by 28 January – as stipulated in the contentious FPA Act, also dubbed the “Internet Censorship Act”.
In October, the FPB had issued a legal notice compelling Internet Access Service Providers and ISPs to report on measures they have taken to tackle the proliferation of child sexual abuse material and other online harms on their platforms and/or services.
As the submission deadline edges closer, the organisation last week gazetted the regulatory instruments aimed at accommodating its expanded mandate, which entails the regulation of all content that is distributed on the Internet or on social media, and to execute the amended regulations of the FPA Act.
Detailing Section 24 and 27 of the Act in the document, the FPB warns that: “Any person or online content provider who knowingly distributes or exhibits 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.
“Distributors of publications, films and games classified as ‘X18’ online must register with 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 that children under the age of 18 would not be able to access ‘X18’ content or the promotion thereof.”
Those who distribute or advertise a film, game, or publication without displaying the classification reference number, age restriction, consumer advice and other conditions imposed on the content will be liable to a fine not exceeding R 50 000 or imprisonment not exceeding six months or both, says FPB.
Catching up with digital technologies
The FPA was signed into law in 2019. However, its operationalisation was put in abeyance to allow the FPB to adequately prepare and undertake certain critical regulatory exercises as required by the Act.
Last March president Cyril operationalised the Act (2019), effective 1 March. However, there are still various processes underway to streamline the internal functions of the FPB so as to adequately execute the mandate.
According to the FPB, the Act seeks to make provision for online content distribution, and allow the FPB to be the final arbiter to determine what forms of expression and content is allowed or not allowed online.
The legal fraternity has over the years expressed concerns regarding the 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.
In response to this, Dr Mashilo Boloka, CEO of the FPB previously told ITWeb: “As provided for in the Act, a co-regulatory mechanism has been ushered cognisant of this challenge. We are looking at an option of partnering with big internet and social network providers, like Google, Facebook, etc. The value of partnering will be to share data produced by these hosts and the FPB will take action based on investigations resulting from the data shared.”
The public has been requested to comment on the draft regulatory instruments.
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