From last Monday, the online videos of all our news outlets became illegal. On that day the Film and Publications Amendment Act – a ridiculous, shoddy, unworkable mess of a law –slipped quietly into our statute books.
The law was drawn up to deal with dangerous online material such as child porn, the promotion of violence and war, and hate speech. But it takes little account of the size, scale and global nature of the internet, or the need for some material, such as news, to go up quickly.
The Act requires all commercial film, video and games to be classified by the Film and Publications Board before public release, much has always been done with movies. The Board classifies material from A – All Ages, through PG – Parental Guidance, 13/16/18 – Not suitable for persons under that age and up to X18 – Adults only and XX – Banned. It also warns if the film contains things like blasphemy, drug use, bad language, nudity, sex or violence. Distributors are obliged to show these recommendations and warnings on all viewings and advertising.
The new amendment extends this pre-classification system to internet material, though it exempts locally-licensed broadcasters and those who produce for personal or private use.
Those who fall within its net include the world’s online newspapers and magazines, company websites, and the many individual bloggers and vloggers who earn money doing it. They will now be expected to either submit every piece of material for pre-clearance before they can post it, or apply for an exemption or to be licensed as a self-classifier, which will allow one to apply the classification system oneself.
It is a bureaucratic quagmire, an attempt by the FPB to extend its mandate and its funding sources in a way that will inevitably break down as they will be flooded by vast quantities of internet material or – more likely – just be ignored.
Even if it is impossible to implement, the law will have a chilling effect on free expression
on the internet. In particular it will impede those who don’t have the resources to navigate their way through a complex bureaucratic system and apply for exemptions.
The Board tells us that they will be publishing regulations which deal with some of these problems. For example, they will exempt members of the Press Council. What then of non-members of the Press Council who produce news that should not require any permission to publish?
It is trite to say that regulations can’t fix a poor law. In any case, these rules are still under scrutiny and will only be published in a few weeks. In the meantime, all this unclassified online material is illegal.
There are other problems with the Act. It defines hate speech so widely that it falls outside the Constitution. Hate speech, the Act says, includes any content that “could reasonably be construed to demonstrate a clear intention to be harmful” and harm is defined as “causing emotional, psychological or moral distress to a person”. I can’t think of many movies – at least good ones – that don’t cause some kind of distress to a single person.
And it gives the power to decide on whether something falls into this vast pool of supposed hate speech to an Orwellian-named Enforcement Committee, rather than the courts. Given the FCB’s history of questionable decisions on content and its tendency to over-reach, this is worrying.
It is all so unnecessary. We already have laws that allow the authorities to deal with things like child porn, the promotion of violence and hate speech. If there are problems with those laws, we can fix them, but there is no call for another vast self-perpetuating bureaucracy of duplication.
The Democratic Alliance has called this the Censorship Act and warned that it is “a dark day for our hard-won freedom of speech”. I would share such fears if I thought this Act could be implemented and survive constitutional challenge. Rather, it is the product of the FCB trying to justify and perpetuate its existence, and an ineffectual state allowing bad law to go through the system. (Though I must say that I relish the idea of Minister Fikile Mbalula having to warn that his tweets may contain material that is “vulgar, not suitable for adults and may inadvertently encourage drug use”.)
The Amendment was passed by Parliament more than two years ago, yet there are still no regulations. The lawmakers ignored representations on the problems, making a mockery of consultation. Neither parliament nor the state legal advisor knocked it into a viable shape. The Presidency in turn ignored representations, signed the Bill without the regulations in place, and gazetted it without warning, so that many suddenly find themselves in legal jeopardy.
What was intended to be a shining example of the state tackling internet issues turns out to be a demonstration of its failings.
*Harber is the Campaign for Free Expression’s director and Wits Caxton Professor of Journalism.