The Film and Publication Board (FPB) has issued a legal notice on South Africa’s Internet service providers demanding that they comply with amendments to the Film and Publications Act.
According to the FPB, service providers have 90 days to register with the regulator and provide various reports about prohibited materials on their networks.
Internet service providers (ISPs) must provide reports on all reasonable steps taken to prevent the use of their services for hosting and distributing prohibited material.
These include child pornography, propaganda for war, incitement of imminent violence, and advocating hatred based on an identifiable group characteristic that constitutes incitement to cause harm by any person.
Ellipsis founder and regulatory expert Dominic Cull has been a vocal critic of the FPB Act amendment — which has been referred to as the “Censorship Bill” — particularly the vagueness of the incitement and hate speech provisions.
Cull explained that this allows anyone to complain to the FPB about almost any online speech they don’t like by calling it hate speech or incitement.
He also raised concerns that the minister directly appoints officials to deal with the complaints.
Cull said the FPB should not have any dominion over what is permissible speech, especially when we see South Africa’s courts struggle with these issues.
The FPB has demanded that ISPs state whether they have reported the presence of prohibited content.
ISPs must also report whether they gave the particulars of the person responsible for hosting, maintaining, or distributing the prohibited content to the police.
Service providers must then say what reasonable steps they took to preserve evidence for the relevant authorities to use in investigations and prosecution.
In addition, service providers are required to report how they have:
- Prominently displayed reasonable safety messages in a language that will be clearly understood by children, on all advertisements for a child-oriented service, as well as in the medium used to access such child-oriented service including, where appropriate, chatroom safety messages for chatrooms or similar contact services.
- Provided a mechanism to enable children to report suspicious behaviour by any person in a chatroom to the service or access provider.
Failure to comply with this part of the notice could see ISPs face a criminal fine of up to R50,000 and imprisonment for six months.
“This is a monumental step to protect the children and members of the public against online harms pursuant to the objective of the Act which came into operation on 1 March 2022,” said FIB interim CEO Dr Mashilo Boloka.
Boloka assured this demand was a preliminary information-gathering process to see ISPs’ efforts in combating online harms and abuses.
“Since this is the first step, [in] cases where ISPs fall short, they will be given an opportunity to self-correct within a prescribed time,” he said.
“The step is not peculiar to South Africa as other jurisdictions have already implemented this within the aegis for Voluntary Transparency Reporting Framework.”
Boloka said they sincerely hope operators will be open and honest in their reporting.
“Based on the reports we receive, the FPB shall determine whether to make this a compulsory reporting requirement every quarter,” he said.
“Concurrent to this notice, we will also be analysing the various co-regulatory industry codes and working with co-regulators to ensure alignment with the amendment Act and its regulations.”
The FPB says it plans to issue further notices to additional providers in due course to build a comprehensive picture of online safety measures across a wide range of services within its legislative jurisdiction.
“ISPs that fail to comply with the notices within 90 days, will be referred to the Enforcement Committee with possibility of hefty financial penalties or imprisonment sanctions as prescribed in the Act,” it warned.
According to its notice, ISPs face criminal fines of up to R150,000 or R750,000 and up to six months or five years prison time depending on the offence.