South Africa’s new Internet censorship law – FPB will force ISPs to block online content

The Film and Publication Board has published the final version of its Online Regulation Policy on its website.

It is to be submitted to the Minister of Communications for approval and publication in the Government Gazette, after which it will have legal force, said Ellipsis Regulatory Solutions.

Ellipsis said the policy is structured into four sections: online distribution of “television films” and games, user-generated content (UGC), complaints, and self-classification.

Ellipsis regulatory expert Dominic Cull said this redraft of the original policy document, while problematic in some respects, is a significant improvement over the previous version.

The new policy was revised with the help of Norton Rose Attorneys, and the FPB said it considered all inputs received to develop the new document.

Among the improvements was the FPB’s approach to user-generated content.

User-generated content

The policy notes that the bulk of UGC is unclassified and recognises that there is an enormous quantity of such content – most of which is produced, hosted, and distributed in and from foreign jurisdictions, said Ellipsis.

As a result, the FPB does not have the necessary resources to classify UGC.

However, it will still have the discretion to regulate “specific instances of UGC” where:

  • A publication contains sexual conduct which violates or shows disrespect for the right to human dignity of any person, degrades a person, or constitutes incitement to cause harm; advocates propaganda for war; incites violence; or advocates hatred based on any identifiable group characteristic and that constitutes incitement to cause harm.
  • A publication which would be classified XX or Refused Classification (RC).
  • A film which would be classified RC, XX, or X18, or which contains a scene which may be disturbing or harmful to, or age-inappropriate for, children.
  • A complaint is received.

In deciding whether or not to regulate instances of UGC, the FPB will consider:

  • The target market.
  • The accessibility and extent of distribution of the UGC.
  • The “egregious nature” of the content.
  • The potential to cause severe harm, especially to children.

Complaints

To complain about content, a member of the public must first approach the “content provider responsible for the classification decision”.

From there, it can be escalated to the FPB if not satisfactorily resolved.

In response to a complaint or at its own discretion, the FPB may:

  • Issue the content provider or online distributor with a “classify” notice or a “restrict access” notice.
  • Direct the content provider or online distributor to take down offending content.
  • Classify content or review the original classification decision.
  • Lay criminal charges.

Block non-compliant online distributors at ISP level

A serious issue does remain with the policy in its current form, though.

Under the risk analysis section of the policy document, the FPB lists lack of buy-in by industry as a possible concern as it may cause reputation damage if it can’t enforce the policy.

To mitigate the risk, the FPB said it has signed a memorandum of understanding with ICASA to block non-compliant online distributors at the ISP level.

ICASA was asked about the memorandum, but it did not respond by the time of publication.

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South Africa’s new Internet censorship law – FPB will force ISPs to block online content