South Africa’s Internet censorship rules for all online content — including YouTube, TikTok, Facebook, Twitter
Communications minister Khumbudzo Ntshavheni has published amended Films and Publications regulations that set out new rules governing online content distribution in South Africa.
The regulations complement the Film and Publications Amendment Act, colloquially termed the “Internet Censorship Bill” before it became an Act of Parliament.
President Cyril Ramaphosa and Ntshavheni signed the law into operation on 1 March 2022.
The law’s wording immediately raised questions over who would be required to submit their content for classification in South Africa.
Although the Act creates two categories of content distributors — commercial and non-commercial — it doesn’t unambiguously state exempt non-commercial publishers from classification.
In broad terms, a commercial online distributor is someone who earns an income from putting films, games, and publications on the Internet.
Arguably, this could be large content marketplaces and aggregators like Steam, YouTube, TikTok, and Instagram and individual “influencers” or developers who earn money through these platforms.
In a media briefing on 3 March, the Film and Publications Board (FPB) assured that non-commercial distributors do not need to classify their content.
However, this has not been made clear in the regulations Ntshavheni published on Friday.
Section 6 states:
Any distributor… who intends to publish for distribution, or to distribute, a publication contemplated in section 16 (2) of the Act, shall submit the publication to the FPB together with the relevant Form provided by the FPB, and the prescribed fee, for examination and classification, before it may be distributed within the Republic.
The only explicit exemptions are the press and advertisers registered with the Press Council or Advertising Regulatory Board.
Part 5, section 16, under the subheading “Submission of Online Content for Classification”, adds to this:
Any distributor… who has been issued with a registration certificate by the FPB as such of a publication, film or game and who wishes to distribute online any publication… must, unless that publication, film or game is already classified by the FPB, submit such publication, film or game for classification.
Part 9, section 9, provides exemptions for specific publications, films and games. These must be applied for in advance.
The potentially exempted content includes educational or cultural materials endorsed by learning institutions, films on skills demonstrations or instructions, and music, sports, physical exercise, design and spiritual events.
Content of a public interest, children’s educational content, documentaries which may not have been exhibited on a broadcasting platform, or content that promotes gender equality may also apply for exemptions.
Whether non-commercial distributors are exempted from FPB classification or not, the new law and regulations still bring them under the body’s jurisdiction.
In fact, the word “non-commercial” appears exactly twice in the regulations — specifically in the section dealing with escalating complaints about such content to the FPB.
Anyone may complain to the FPB to take action against unclassified, prohibited content.
Prohibited content includes propaganda for war, inciting imminent violence, or advocating hate speech.
The regulations also single out “private sexual photographs”, otherwise known as revenge porn.
It should be noted that malicious communications are already criminalised under South Africa’s new Cybercrimes Act.
President Ramaphosa proclaimed the relevant sections of the Act on 19 November 2021.
Regularly-updated games
Another noteworthy inclusion in the regulations is section 32, which deals with updates to publications, films, and games. It states:
Where a game is not, in all respects, the same as that which was first classified… a brief report which accurately describes the game and its respective classifiable elements… coupled with recordings of the game which illustrates how classifiable elements… are presented, must be submitted with the application form.
A casual reading of this provision suggests that the FPB demands that regularly-updated games resubmit themselves for classification every time they release a major content patch.
Games falling into this category include Fortnite, Apex Legends, Destiny 2, Warframe, Path of Exile, and No Man’s Sky.
Internet service providers
Dominic Cull, Ellipsis founder and regulatory expert
In addition to new rules for content classification in South Africa, the regulations have a section dedicated to Internet service providers (ISPs).
Under the regulations, ISPs must register with the FPB.
“Every Internet service provider must, when making an application for registration as an internet service provider, indicate in the application form all measures, or steps taken or put in place to ensure that children are not exposed to child pornography and pornography,” the regulations state.
The FPB may require ISPs to demonstrate that their measures to protect children are still effective.
Ellipsis founder and regulatory expert Dominic Cull has been a vocal critic of the Act, arguing that the FPB should not have any dominion over what is permissible speech.
Cull said that when we can see South Africa’s courts struggle with these issues, there is no place for officials directly appointed by a minister to deal with them.
Responding to the regulations published on Friday, Cull told MyBroadband that, unfortunately, it was expected they would be poor.
“Regulations can only be as good as the legislation they are based on,” Cull said.
“Unfortunately, the Amendment Act is the worst-drafted legislation since we eradicated rinderpest.”
According to an article on the Department of Agriculture’s website, South Africa had effectively eliminated rinderpest from the country by around 1903.
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