Films and Publication Bill [B37B-2015]: briefing, with Deputy Minister

Meeting report

Ms Pinky Kekana, Deputy Minister of Communications, and her team presented the proposed amendments to the Film and Publication Board Act of 1996, which had the intention of protecting children from corrupting influences. This bill’s primary concern was to prevent children from being exposed or experiencing harmful content such as child pornography, and to prohibit its distribution and publication on any platform. The bill attempted to empower the Film and Publication Board (FPB) to facilitate the removal of child pornography wherever it was published.

Ms Kekana said since its inception, the FPB’s main goal had been to furnish members of society with information about the nature and substance of the content they consumed. The advent of the fourth industrial revolution had modified the manner in which films and publications were consumed. Content distribution was not limited to cinema and DVD, but had also reached digital platforms via online streaming. This had fashioned a void in the regulatory framework in which citizens, including children, were able to access content to which they should not have access. This material needed to be appropriately classified.

The bill’s criminalisation of child pornography was a result of the primary legislation on sexual crimes, mainly the Sexual Offences Act. It was therefore necessary to align the definition of child pornography with this Act. Usually the regulation of digital platforms was the domain of the Electronic, Communications and Transactions Act. It was for this reason that the bill had to correspondingly align itself similarly to the provisions found therein. Chief among some regulatory gaps was the lack of effective enforcement of the provisions of the Act in dealing with non-complaint distributors. It warranted a collaboration among organs of state and industry players to ensure connectivity in attempting to protect the fabric of society.

Dr Mashilo Boloka, Acting Director General (ADG), Department of Communications (DoC), provided a broad context of the contributing factors which had led to the amendment of the bill. This Act was enacted in 1996 and because of the shifting environment, especially in the digital space, there was a need to meet the changes brought on by the rapidly changing political landscape which had been influenced by the proliferation of media platforms. There had also been changes in the legislative environment, demonstrated by the introduction of the Sexual Offences and Related Matters Act of 2007, making modification of the initial necessary in order to align with the changing social environment.

Furthermore, there were sections within the standing act that had been deemed unconstitutional by the Constitutional Court (section 116[2] of the Act) and as a result there was a need to align these with the standing laws of the country. Considering that the FPB did not have powers with regard to dealing with particular issues in the changing technical environment, this bill became urgent in dealing with these matters. Amendments to the bill became necessary to empower the FPB to deal with the changing environment, otherwise it would be ineffective in the execution of its mandate.

The main prerogative of the FPB Act was to regulate the production, possession and distribution of games, films and certain publications, with the intention of protecting children from harmful content and to provide information to adults. This was to enable adults to make informed decisions. This Act was the primary source of legislation regarding the classification of films, games and publications in South Africa. As it currently stands, it established the Film and Publications Board as an institution which was meant to oversee and ensure that the objects of the Act were attained. All films and games must be classified and registered with the Board before distribution in South Africa. However, publications were dealt with differently, as these were flagged only in the event of a public complaint.

Over and above the stipulations on freedom of expression contained in the constitution, the Act provides for child pornography to be prohibited for distribution within the South African context. The Act seeks to shift away from being a censorship board to one of classification -- to provide South Africans with the information essential to make choices as to what they wished to watch or play.

The reasons that had led to the need for amendments to the Films and Publications Act were:

• the gaps in the current Act;
• the ruling by the Appeal Tribunal against FPB on May 2012 on the classification of the “The Spear”;
• the Constitutional Court ruling that section 16 (2) of the Act was unconstitutional;
• the Appeal Tribunal finding that regulations dealing with the handling of child pornography were not being aligned to the constitutional case of De Reuck v DPP 2004 (1) SA 406 CC; and lastly,
• the proliferation and uploading of sex videos depicting violence on social media platforms such as Facebook, Twitter and You-Tube.

Dr Boloko said the Amendment bill seeks to align the definition of child pornography to the Constitutional Court judgment in the case of De Reuck v DPP 2004 (1) SA 406 CC; to decriminalise the online distribution of adult content on all digital platforms; to establish a co-regulation system enabling the Board to accredit independent classification bodies to classify their own digital films, games and publications; to provide an effective penalty regime in support of the co-regulation approach; and lastly, to allow consideration of constitutional court amendments of section 16 (2)(a), as instructed by the constitutional court in Print Media v Minister of Home Affairs and another (CCT 113/11).

Furthermore, the bill seeks to align with international best practice on matters regarding the regulation and distribution of online content, amplify the responsibilities of internet service providers in matters regarding the protection of children against sexual content, address shortcomings in relation to monitoring the usage of new media and social networking sites, establish a penalty committee to address public complaints and administrative offences committed by distributors and the industry, while providing accreditation of foreign classification systems for online content.

The amendment bill was officially introduced to Parliament in November 2015, and in introducing it, the Minister of Communications had amplified the intention to include some issues the bill had made no mention of previously. These were to revise and regulate the functions of compliance officers regarding the entering and inspection of premises and facilities in which the business of sale, hire or exhibition of films or games was being conducted, to provide for the use of classification ratings issued by a foreign classification authority or body, to provide for the right of appeal against classifications issued by independent industry classification bodies, to provide for exemptions in respect of online distribution of films and games and finally, to revise and strengthen penal provisions.

A total of 32 organisations had submitted inputs to the amendments of the bill, ranging from broadcasters to state law enforcement agencies, religious bodies and private companies. As a result of this public input, considerations had been made to the Bill in order to assuage these concerned parties’ concerns.

In the amended Bill, there was a need for redefinition and classification of certain terms that were not connected to child pornography previously, with the original Bill being adopted in 1996 and these conceptions not associated at the time. In this, the board had to highlight certain terms which might not have been conceived to be associated to sexual offences in the past. Some of these terms had been re-defined in such a manner as to show their relevance in this particular context, or how they might be connected. Thus, during the presentation, a significant amount of time had been spent going over which terms had to be re-defined in the amended Bill. These had included child pornography, commercial online distributor, enforcement committee, game, harmful, hate speech, Independent Communications Authority of South Africa (ICASA), internet, non-commercial online distributor, online medium, permit, Press Council of South Africa, self-classification, streaming and social media. On the point of social media, the FBP had made it a point to assert they would not regulate this platform, but might intervene in the event that sexual content became explicitly available on these platforms.

Having outlined the need for redefinition, Dr Boloko focused on the portions of the Act which were amended. The first was the criminalisation of the production, possession and distribution of child pornography and non-compliance with the Act. There were also amendments to section 4A of the bill. This had been done to empower the Council to meet the purpose of accreditation. With regard to the composition of the Board, this referred to the enforcement committee that was responsible for investigating transactions in terms of the Act. What had been amended were the duties and powers of the Board in enforcing its mandate. Clause 9 of the amended bill regulated the accreditation of commercial online distributors which were engaged in the business of distributing material wherein their content needed to be pre-classified by the FPB. Clause 10 had incorporated general administrative support provided to the enforcement committee. Clause 14 detailed the roles of compliance officers, who would be empowered to enter premises with the consent of the person in charge of the premise in question. Clause 19 entitled the Board to approve accredited content that would be distributed.

Section 18E was one of the primary amendments, as it filled the gaps which the old bill did not. Previously a person who posted prohibited content could not be penalised, as the FPB did not have any powers to remove it from circulation. Clause 18E provided this power by enabling people to lodge a complaint about prohibited content being offered online. Clause 18F dealt with the distribution of private sexual photographs or film without the consent of the individual who appeared in the picture or video, with the intention of causing that person harm. It was now classified as a criminal offence if this was done to another South African. The penalty for this crime could amount to six months in prison or a fine of up to R50 000.

Clause 18G prohibited any distribution, through any medium, be it photographs or films, depicting sexual violence against children. The last important clause was Clause 27 which presented the penalties for all offences under the amended Bill.

The goal of the bill in empowering the FPB was mainly geared to two important principles -- freedom of expression and the right to privacy. It was for this reason that the Director General stressed the need for this bill. It was also for this reason that the Bill needed to be compatible with the rights accorded to the citizens of South Africa in accordance with the constitution and the law.

In closing the presentation, Dr Boloko mentioned that some of the social media platform owners who were operating in South Africa were refusing to register with the FPB owing to the fee that was required. These vendors asserted that there was no legal requirement to do so. However, the registration fee was important for the preservation of the FPB, without which it might not be able to carry out its mandate successfully. Operating in South Africa and not being registered with the FPB also resulted in capital outflows with regard to advertising revenue. Due to these businesses not being based in South Africa, there was no need for them to comply with any laws of the country. It was for this reason that he wanted to stress the need to expedite the amendments to this bill.

Discussion

Mr J Parkies (ANC, Free State) was worried about distributors who refused to cooperate with the FPB, and chose not to register. Considering they were not based in South Africa, he would like to find out what recourse the Board would have in the event of non-cooperation. What steps could the Board take in order to remedy the situation? He was also concerned about the issue of capital outflows, and said that this needed to be arrested in its tracks. He sought further clarification of the powers of the enforcement committee in penalising those who circumvented the bill. Regarding the matter of contradicting legislation, what measures had the DoC taken in making sure that contradicting legislation was aligned.

Mr O Sefako (ANC, North West) was interested in the capacity of the administrative support. Considering those people who circumvented taxes, would the amended bill have the powers to enforce this legislation, bearing in mind the need to collaborate with other departments?

Mr J Julies (DA, Gauteng), referring to the inadequacies of the consultation period in 2016, where the Portfolio Committee had extended the date for submissions on the Film and Publications Amendment Bill 2015, requested clarification on exactly what those inadequacies were. Secondly, he asserted that the state lawyer who advised this Department was of the opinion that this bill should be dealt with in accordance with the procedures of section 75 of the constitution. If that was the case, then Mr J Julies asks for elaboration on why section 75 had been chosen in the classification of the bill. The reason he asked was that the regulation of communication, from his understanding, was done provincially and the provinces might have an input on this bill.

Mr L Gaehler (UDM, Eastern Cape) asked what would happen in the event that the compliance officers were not given consent by the person in charge to enter their premises. The reason he had issues with this clause was that in the event that the person in charge does not give permission, there would be a need to go to a judge and ask for permission to enter forcefully. However, the material that was supposed to be inspected might already have been removed by the time the compliance officers returned. Accordingly a review of clause 14 was warranted, in his opinion.

Mr Parkies wanted to know the qualifications necessary for one to be part of the enforcement committee. He was worried that only those with extensive experience would be considered for positions on this committee. For him, this was wrong since there were quite a significant number of unemployed graduates in South Africa. He saw such positions as useful opportunities for the training of young graduates in the processes of the law. He believed it was wrong that only those with ten years’ experience would be considered for such positions.

DoC’s response

Deputy Minister Kekana was the first to respond to the issues, focusing primarily on Mr Parkies’ last remark. She said she agreed with Mr Parkies, because with the shifting technological landscape, especially considering the fourth industrial revolution, it might be wise to consider young legal minds, as they might have a better understanding of the technological context than those who had built up their experience in legal matters exclusively.

Secondly, consideration had to be given to the fact that there was a drive in education to employ smart devices in order to improve teaching, with tablets and even smart televisions being brought into the educational sphere. While this was a good idea for improving the performance of children, there were undesirable consequences that came with the introduction of internet in the classroom. The FPB attempted to regulate harmful content on the internet so that children did not get exposed to it. In addition to this, she asked that the Select Committee start to campaign for digital literacy, in order to better understand the dangers which came with the internet, especially for parents whose children were going to be educated using digital processes. The Department sought to embark on a drive to push digital literacy.

Dr Boloka said the DoC would look into a way that it could accommodate young graduates in the future. With regard to the enforcement committee, the registration fee --which was quite critical -- should be used for the capacitation of this enforcement committee. The finances which the enforcement committee received from those penalised should be incorporated into the FPB to improve its capacity to deliver its mandate.

Responding to the question of the capacity of the enforcement committee, he said this question was around whether the enforcement committee would be able to ensure compliance. The committee would consist of five members, including the chairperson. Among those members, one would be a judge, acting or retired, and another would be an advocate or an attorney with experience of ten years. Thirdly, there would be a magistrate, acting or retired. The fourth member would be a professor of law or lecturer in law, retired or active, and also with ten years’ experience. The reason why these stipulations had been made was because there was a need for the committee to be comprised of people with high intellect. However, on the accommodation of graduates, they could be admitted into filling positions on the general administration staff of the enforcement committee, as this would be compatible with their skill level.

The Deputy Minister acknowledged that there would be a need for experience, yet there would also be a need for those with the digital know-how. She resolved to leave the matter to the Committee to consult and give feedback on the matter.

FPB’s response

Ms Abongile Mashele, Chief Operations Officer, FPB, responded to the query about non-compliance, particularly by online distributors in the market. One of the reasons why the amendments were necessary was that as an administrative regulative body, the FPB had limited or no power to take administrative action against non-compliance against a distributor. As matters currently stood, a distributor not complying with the Act, could only be reported and the FPB had the responsibility to take this distributor to law enforcement. However, the FPB could not institute an administrative action, as was usually the case with most regulatory bodies. One of the key reasons why the amendment was necessary was to supply the FPB with administrative power. Similarly, the fines were currently not significant punishment for distributors found guilty, as the distributor paid only approximately R1 500. The point of the amendment was therefore to create a regulatory framework, where the FPB becomes empowered to take administrative action. It also outlined the obligations of the distributor to ensure that they had the necessary safeguards with regard to prohibited content.

On the question of compliance monitors, the amended bill had given powers to compliance officers to enter distributors’ premises without consent, but this had been found to be inconsistent with legislation regarding privacy, hence the proviso to bring in law enforcement.

Ms Mashele added that this Bill would not succeed without an empowered population with regard to digital literacy and digital communication, so over and above the provisions of the legislation, the FPB, in terms of strategy and how they used the resources from industry, placed a focus on the public education of parents, in order to see how they could be empowered as more knowledgeable digital citizens.

On the issue of what inputs to the amendments of the bill had been put forward by the distributors, the Department would not go into that, but indicated that all of these inputs had been addressed, especially when it came to legislative overreach.

Responding to the question of inadequate consultation, the Department had moved that this question be directed to the National Assembly committee, as they would be best placed to provide the reasons.

Replying to the question of why the bill was not dealt with under section 75 of the constitution, Mr Mongameli Kwela, Senior State Law Adviser, responded by asserting that section 76 of the constitution only oversaw bills dealing with an area listed in schedule four of the constitution. When looking at this bill, it aimed to consider, the regulation of films and games, the prevention of exposure of children to child pornography, and international bodies to be regulated in the event they wanted to distribute games within the country. All these issues were not listed in schedule four of the constitution. Since these were not listed there, it went to show that this amendment must be dealt with under section 75. Therefore the bill had been correctly tagged as a section 75 bill, instead of a section 76.

Ms Phumelela Ngema, Parliamentary Legal Adviser, supported this view, stating that in considering what section 76 provided, a bill must fall there if a substantial measure of its provisions were impacting on the provinces. When looking at the provisions of this specific Bill, this was not so. While the principal act was indeed looking at looking into the issue which spoke to schedule four, which was consumer protection, this bill’s purpose was not necessarily about protecting the consumer, but about justice. As it spoke to what needed to be done, it also further makes recommendations on establishing a regulatory body, and provides measures as to how the enforcement committee must be established and be constituted. These were not functional issues listed in schedule four.

Ms Ngema said that just because a bill was classified under section 75 did not diminish the extent of public participation. It was at the discretion of the Committee to decide how to proceed. According to section 65 of the constitution, which highlights that for purposes of section 75 bills, the legislator must put in place the Mandating Procedures of Provinces Act, which communicates how provinces must be involved in ensuring proper mandates with regard to the support of each provincial legislature. In consequence, this did not mean there was no involvement of the public when the issue was a matter of a section 75 bill. The public was still involved and had the power to influence and be part of the process. The National Council of Provinces (NCOP) was a forum that puts forward the interests of all the provinces.

Having responded to most of the issues, the Chairperson thanked the Department for presenting the amendment bill before the Committee. She says Members would debate amongst themselves since there would be another session on this issue. There might make suggestions of post amendments. She closed by saying this was an important bill, especially considering the capital outflows, registration fees and penalties.

The meeting was adjourned.