The amendment to the Film and Publications Act may have been written with good intentions but the amendment was drafted in ignorance of the current state of new media on the Web and this could stifle the nascent new media industry in this country and frustrate access to international services on the Web.The object of the amendment is the following:
The Amendment Bill seeks to ensure that all publications, films and interactive computer games distributed in the Republic, regardless of the medium or format of such distribution, would be subject to the same principles and guidelines to serve the core objective of protecting children from potentially disturbing, harmful and age-inappropriate materials in publications, films, interactive computer games, mobile cellular telephones and on the Internet since child pornography exists wherever there is a computer, a modem for access to the Internet and a mobile cellular telephone. The Amendment Bill further seeks to bring broadcasters of films within the scope of the Act.The Amendment Bill also seeks to provide for the appointment of compliance officers to monitor compliance with the provisions of the Act. The Bill authorises compliance officers to enter any premises for purposes of requesting the production of a certificate of registration as a distributor or exhibitor of films or interactive computer games,examining or inspecting any premises used for conducting a business of adult premises for compliance with the conditions laid down in the Act or examining or inspecting any films or interactive computer games offered for sale or hire for compliance with the requirements of the Act. Compliance officers are further empowered to order the removal of films, interactive computer games and publications that do not comply with the requirements of the Act or a decision of the Board until such time that such product complies with the requirements of the Act or decision of the Board with regard to distribution.
Protecting children from inappropriate content is important and the government should take steps to protect them. The problem is more the unintended consequences of poorly researched and drafted legislation. The amendment applies to content that is distributed or exhibited in South Africa. This means the amended Act will apply to content not just distributed in South Africa by local companies but will extend to content that is made available to South Africans on the Web. This would include video sharing sites like YouTube and Revver, blogs and more. When you look at the definitions of “publication” and “film” in the original Act you can start to see that the Act seeks to regulate content available on the Web itself.The Act will probably affect online video sharing sites more as the amendment imposes an obligation on anyone who distributes or exhibits “films” in South Africa to register as a distributor and to submit all films for examination and classification after payment of a prescribed fee which is around R1 500, according to ICT lawyer Mike Silber in an ITWeb article about the amendment. This means that local video sharing sites like Zoopy, TWAC and MyVideo must now submit the videos they make available on their sites for examination and must pay a fee that could put them out of business. It goes beyond the obvious video sharing sites and also extends to other services that exhibit videos like The Times which recently launched its multimedia portal and even bloggers who post videos on their sites. The amendment also extends to games and provides for the following:
if it is a film or interactive computer game approved for sale or hire, display the following certificate conspicuously and clearly visible on or through the cover or packaging of the cassette or holder of the film or interactive computer game (my emphasis)
The language of the legislation clearly indicates that it was not thought through or drafted by anyone who is conscious of the existence of the Web today. I also wonder about the implications for our freedom of expression protected by the Bill of Rights. While the rights we enjoy are not absolute and may be limited by laws of general application like the Film and Publications Act, such a limitation must be reasonable and justifiable in an “open and democratic society based on human dignity, equality and freedom”.The scope of the amended Act goes too far and could have the chilling effect of crushing the nascent new media industry in South Africa and severely limiting access to similar services on the Web (if the Act is going to be vigorously enforced, that is). What is needed is a challenge to the legislation in court, especially considering that Parliament apparently ignored representations made to it about the inappropriate provisions in the amendment.We are in for a pretty interesting ride as this amendment is promulgated and enforced by the Film and Publications Board which may become a more restrictive censorship body than the Apartheid government managed to create, despite the Minister’s assertion that it will never happen again.Technorati Tags:film and publications, act, amendment, legislation, content sharing, video sharing, draconian, misguided, scope, censorship, freedom of expresion