The Draft Online Regulation Policy (the “Policy”) gazetted on 4 March 2015, was developed following section 4A of the Film and Publications Act of 1996, and sets out to create a framework for online content distribution in South Africa under the Film and Publications Board. The first consultation process was extended to 1 July 2015, in response to the public outcry against the uncertainty created by the Regulations, in particular in relation to the classification of user-generated content.
Further consultation may well be required, including with those stakeholders who were not consulted with the first time around. The policy reviewers should, as a start, explain those instances where the explanatory memorandum differ from the Policy.
The objectives of the Policy are sensible enough, giving effect to sections 18(1) and 18 (2) of the Film and Publications Act by ensuring the classification and compliance monitoring of digitally distributed content. This will be achieved by enabling the effective regulation and speedy classification of digital content by the Board and creating an opportunity for co-regulation between the Board and industry (for the distribution of digital content). Central is the adoption of a platform neutral classification system, which deals with “broader convergent media trends”, as opposed to piecemeal regulatory responses to changes in technology.
Eight guiding principles underlie the framework, including that South Africans should be able to read, hear, see and participate in the media of their choice, that communications and media services should broadly reflect community standards, that children be protected from material likely to harm or disturb them, and that the framework not impede competition or innovation, or disadvantage South African media content and service providers internationally. The classification regulation should furthermore be kept to a minimum to meet a clear public purpose.
The Policy deals with child exploitative media and self-generated content together, and not necessarily in any logical order in section 6, thus creating confusion. Section 6 focusses on the shift from media users as audience to participants, and also states that an increasing number of South Africans, the majority of which are apparently children, are using "contact services” such as Facebook and Twitter. This would leave children exposed to unclassified content (and apparently also without parents).
In order to minimise such exposure, user-created content will forthwith constitute a publication as defined in section 1 of the Act (i.e. a drawing, picture, illustration or painting, recording or any other message or communication, including a visual presentation), which is placed on any distribution network (including the internet).
Section 6 confirms that the publication of child pornography is a criminal offence, (to the extent that this wasn’t already the case), and imposes an obligation on an online distributor with a distribution platform (which could arguably be a PC or mobile phone, or that of an ISP). The Policy then proceeds to deal with the dispatch of a copy of the classification decision to the online distributor, against payment of a fee (equivalent to what the Board charges per title in respect of boxed films or games submitted to it for classification). Failure to pay the fee may result in the online distributor's registration certificate being withdrawn, penalties and legal action. The Policy goes on to empower the Board to order the online distributor to take down illegal or prohibited user-created content and to refer the matter to the South African Police Services for criminal investigation and prosecution.
It is not clear whether this section imposes an obligation on an average internet user to register with the Board and apply for classification each time before posting. Fortunately, the memorandum provides guidance under the section “Clear scope of the type of content to be classified”. This includes self-generated content uploaded on platforms such as YouTube, Facebook and Twitter, feature films, television programmes and certain computer games, which are distributed online by streaming through the internet. During an apparent lucidum intervallum, it is acknowledged that it is impractical to expect all media content, particularly self-generated content to be classified, and that it is the responsibility of the platform provider in consultation with the Board to determine the scope of classification, with the conclusion that the obligation to classify content will not generally apply to persons uploading online content on a non-commercial basis. This expressly excludes child exploitative and pornographic posting.
The Policy itself under the heading, “Online distribution licensing fee and classification fee per title”, however has a blanket statement that no online content distributor shall be authorised by the Board to distribute online content in South Africa, unless it has registered with the Board as an online distributor and has paid the prescribed online distribution licensing fee.
Unless the intention is for the Policy to only apply to content providers and distributors who do this on a commercial basis (the real “platform providers” like Facebook, Twitter, YouTube etc.), us mere mortals who upload a holiday picture, video, photo, message or any other communication may have to register and pay and then wait 30 days for clearance. But can this really be the case in an open democratic society? Would this allow us to participate in the media of our choice, and is this indeed the most effective way to protect children from material likely to harm or disturb them? Or is this the way to get communications and media services to broadly reflect community standards?
The Policy is silent on freedom of expression.