The Films and Publications (FPB) Amendment Bill, the Internet Censorship Bill, which will be discussed today by the Portfolio Committee on Communications, has come under fire – with the DA describing is as “quite simply, bad news”.
In its current form, it gives government wide-sweeping powers to censor content on the Internet, according to DA Shadow Minister of Communications, Phumzile Van Damme, who also describes it as unworkable, unaffordable, vague and containing several unconstitutional provisions.
She adds that the DA is not alone in its concerns. “During Public Hearings earlier this month, major industry players such as MultiChoice, eNCA, eTV, Right2Know, Media Monitoring Africa, the SOS Coalition, the South African National Editors Forum, the National Association of Broadcasters, Google and the South African Broadcasting Corporation (SABC) all made submissions to the Communications Committee opposing many of the bill’s proposed provisions.”
Van Damme says provisions in the bill outlawing child pornography, for the purposes of sexual arousal, and revenge pornography are welcomed. “Save for these two proposed amendments, the rest of the Bill must be thrown out.”
The DA support the SABC’s call for a Regulatory Impact Assessment, which will provide more clarity on the proportionality of the proposed amendments in relation to the challenges the bill aims to address.
Van Damme says the problematic provisions in the bill can be grouped into three categories, and lists these as follows:

Constitutional concerns:
* In section 18(8), the Bill states that ICASA may not issue or renew any broadcasting licence to a broadcaster who also streams content through the Internet, unless such broadcaster is also registered with the Board. If passed, this would mean that the FPB would, in contravention of the Constitution, overstep its mandate and infringe on the powers of a Chapter 9 institution, ICASA. The FPB cannot instruct ICASA when it may or may not issue or renew a broadcasting license, a determination that may be made only by ICASA in terms of section 192 of the Constitution, as was pointed out by Multichoice during the Public Hearings.
* The Bill is also unconstitutional in that it seeks to impose the pre-classification of content distributed online. Section 18(5) states that no digital film may be distributed unless it has been classified by the FPB. This amounts to pre-classification and is in direct contravention of the order of the Constitutional Court in Print Media South Africa v Minister of Home Affairs 2012. The court found that prior classification of content amounts to an unreasonable limitation to the right to freedom of expression. The government was instructed to amend the Films and Publications Act to ensure compliance with the Constitution, yet the proposed Bill does the exact opposite of what the court ordered.
* The Bill also infringes on the constitutional right to privacy. Section 24(3) states that any person who distributes a film or game classified as “X18” online must keep a register of all instances where access was granted to a user, whose name, address and verifiable age must be noted in the register kept for that purpose. The CEO of the FPB will have the right to access this list. This is an unjustifiable breach of the right to privacy. Section 14(d) of the Constitution affords the right to privacy, which includes the right to not have your private communications infringed. If the CEO is able to access a register of all the people that have accessed a site in the past year, the right to privacy of many may be infringed upon. There should be stricter conditions.

Use of vague and broad terminology:
Throughout the Bill, vague and broad terminology is used. Many of the submissions during Public Hearings complained of this. As an example, the definition of “digital film” in section 1 is “any sequence of visual images recorded in such a manner that by using such recording, such images will be capable of being seen as a moving picture, and includes any picture intended for exhibition through the Internet or any other electronic medium or device”.
This is broad enough to include all digital videos, and films including user-generated video material such as videos uploaded on social media channels such as YouTube, Facebook, Twitter and Instagram. This means that every single person with a social media account in South Africa would have toregister with the FPB as a distributor, and pay the requisite fee for pre-classification. This is quite clearly unworkable.

Ministerial powers:
* Section 5 of the bill gives the Minister the power to appoint the Penalty Committee in consultation with Cabinet. The Penalty Committee will have, amongst other powers, the right to impose fines of up to R150 000 and refer cases for prosecution for contraventions of the FPB Act. A body with such powers should be appointed in consultation with Parliament, and not the Minister and Cabinet to prevent a situation where the Penalty Committee becomes a political hit-squad. Moreover, we do not believe that it is up the FPB to impose criminal sanctions, as it is largely an administrative body. Matters of law enforcement and criminal penalties should be left to the SAPS, the NPA and the courts.
* When the bill is read alongside the Films and Publications Board’s Online Regulation Policy, it becomes clear that there is a strong desire to control the content that South Africans access and distribute online.
“The combination of the Online Regulation Policy and the Films and Publications Amendment Bill provides the Films and Publications Board wide powers that amount to nothing short of censorship,” Van Damme says. “This bill is a thinly-veiled attempt at Internet censorship, disguised as the protection of children against exposure to pornography, as observed recently in many less-than-democratic jurisdictions.”