Legal problems with streaming through VPNs in South Africa

South Africans who use virtual private network (VPN) services to access video streaming services or stream specific copyrighted content not officially available or licenced locally could find themselves on the wrong side of the law.

The global movie and TV licencing regime requires that legitimate video streaming services implement geo-blocking, as the rights to distribute this content are generally not sold globally but broken up for specific countries or regions.

Doing so allows for a lower cost to acquire the licence to distribute a particular show or movie, ensuring streaming services can remain affordable to their end users.

Therefore, services like Netflix, Disney+, or Amazon Prime Video will have different libraries of content in different countries or regions.

In general, their original productions will be available in all the countries where they are available. However, there may be significant deviations in the content licenced from third-party providers.

In some cases, a particular movie or TV show might resonate with audiences in one country but not in another, so a streamer would only acquire the rights for the first country.

In other cases, a different streaming service may hold the licence to stream the same movie or TV show for which the rights belong to another streaming service in another country.

For example, MultiChoice’s Showmax has the right to stream many HBO shows that are available on Warner Bros. Max’s service in the US.

Many VPNs advertise geo-blocking bypassing as their standout feature to get around these restrictions.

Reputable VPNs have servers in multiple countries from which users can choose to make it appear as though they are accessing the Internet from another country.

There is an argument that is not only useful but necessary in cases where residents of certain countries may be subject to totalitarian governments with severe censorship and rights-infringing surveillance.

South Africa’s copyright and cybercrime laws are also generally aligned with international best practices.

The controversial copyright amendment bill has proposed changes that the creative industry has warned could irreversibly damage the livelihoods of content creators, including production houses, filming crews, and actors.

However, in their current form, South Africa’s copyright laws — coupled with the Cybercrimes Act that came into effect in 2021 — provide legal protection against unauthorised access to copyrighted content, the bread and butter of the creative industry.

When a VPN is used to bypass geo-blocks, it provides unauthorised access to content and can potentially harm these people’s incomes.

Similar to driving a car or using a tool, accessing the Internet through a VPN is not illegal on its own.

Using a VPN can be a great way to enhance your privacy and prevent malicious actors from spying on your online activity or compromising your devices.

However, just like a car or tool can be used to harm people, a VPN can facilitate illegal activity.

South African legal experts have warned that circumventing geographic restrictions and accessing copyrighted material without proper licensing can be illegal.

“This includes instances where a VPN is employed to access content available only in specific regions without authorisation,” the copyright registration company explained.

South Africa’s copyright and cybercrime laws are clear — the unauthorised use and distribution of copyrighted content is unlawful.

When you use a VPN to access geo-blocked content from another platform when it is licenced locally through another streaming service, you are violating the country’s copyright laws.

The punishment for this crime can include a fine of up to R10,000 and five years’ imprisonment.

What about unlicensed content?

One issue that has become increasingly problematic in recent years is that content previously limited to one or just a handful of providers has been splintered across a plethora of platforms.

In the early years of video streaming, it was primarily Netflix that dominated the industry.

While it was hardly a one-stop shop for all video entertainment content, for many years it was essentially the only game in town.

However, Netflix has seen intensified competition in recent years.

The problem is that many of the newer streamers do not pursue smaller markets like South Africa.

The streaming services that are available locally may only get access to their exclusive or high-profile releases well after their international debut.

For example, the sixth season of cop drama The Rookie was broadcast on ABC and streamed on Hulu in the US between February and May 2024.

DStv started broadcasting new episodes of the series week-by-week after the last episode aired in the US on 21 May 2024.

The show’s fans may have found it difficult to avoid spoilers and episode details from online articles and social media.

While some of Hulu’s content is available on Disney+ in South Africa, it was not the case for this particular show. The Rookie Season 6 is also not yet available on Showmax.

South Africa is not the only country with this challenge. Australians also complained that the show’s latest season only became available through a local broadcaster in August.

There are plenty more examples of series and movies that are only available on services not in South Africa — including Max, Paramount+, and Peacock.

This has started pushing streaming in the same direction as linear television broadcasting, where South African viewers could be forced to wait many months for the new season of their favourite show.

The problem is that the Internet makes it far more difficult to avoid spoilers and far easier to pirate that content.

At face value, using a VPN to access these services or stream their content may seem harmless and perfectly legal.

One could argue that the rightsholder is still being paid and receiving revenue it would otherwise not have because it did not sell the rights to particular content in South Africa.

However, the Internet Service Providers Association (Ispa) has explained that commercial licensing is not the only type of approval video content requires in South Africa.

Although a commercial licence gives a party the right to use or distribute certain content, South African law also requires that movies, TV shows, and video games be classified with an age restriction.

“Even though you may have a commercial licence to use or distribute copyrighted content, the Film and Publications Board (FPB) must still classify that content,” Ispa explained.

While most streaming services are not yet required to be licensed with Icasa, they must comply with FPB classification rules and be registered as content distributors.