[26 January 2017] From the current schedule for Parliamentary Portfolio Committee meetings, it appears that the Portfolio Committee on Communications will conduct further deliberations on the Films and Publications Amendment Bill on 28 February 2017.

Please note that the schedule is subject to change (it often does).

While no decision has been made on whether to continue to process the Bill or whether to refer it back to the Department of Communications for revision, the subsequent introduction of the Cybercrimes and Cybersecurity Bill into the Parliamentary process strengthens the argument for referral back to the Department. This is because the latter Bill contains provisions which overlap with provisions in the Films and Publications Bill – “revenge pornography”, cyberbullying and others – as well as explicit repealing the jurisdiction of the Film and Publications Board with regard to child pornography / child sexual abuse material.

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[3 November 2016] Our information is that a final decision on the fate of the Films and Publications Amendment Bill 2015 will be made at a Portfolio Committee meetings scheduled for 2 December 2016. There appears to be a strong likelihood of the Bill being referred back to the Department of Communications.

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[29 October 2016] The Films and Publications Board has initiated a review of the tariffs and categorisations applicable to online content distributors and Internet service providers. The tender for the review of the tariffs has been awarded to “Enterprises at University of Pretoria”, with a contract value of R 1 637 179,08.

The Board is expected to consult with stakeholder early in 2017 prior to finalising the review.

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[18 October 2016] After the completion of the public hearings before the Portfolio Committee for Communications, the Films and Publications Board and the Department of Communications have provided a revised version of the Bill, which has been circulated to interested parties for further comment.

Films and Publications Amendment Bill 10 October 2016

The Bill is scheduled to be discussed further by the Portfolio Committee on 25 October 2016. At this stage it is fair to say that it faces significant challenges….

A note prepared for the Portfolio Committee by a Senior State Law Advisor from the Office of the Chief State Law Advisor is particularly blunt in its assessment (our emphasis):

      Conclusion

  • The Films and Publications Act is a 1996 Act, which means it was possible deliberated and processed around 1995, at the time when the Constitution process had not been finalised.
  • Since its initial enactment there has been 4 amendments most of which include the corrections related to the Constitutional judgments that found certain provisions of this Act unconstitutional and a number which have been repealed. To say the least this Act looks ugly, half empty and borders on being meaningless, with a doubt whether this amendment has hope to give it better life.
  • The fact that at this legislative initiation stage a socio-impact assessment (RIA) has not been done, is indeed a huge concern especially in light of the court judgments and the public views during the hearings.
  • There is a problem and there is huge uncertainty whether the Bill will sought to rectify that. Perhaps indeed the proper assessment onto the impact of the Act and its proposed current amendment would have assisted all stakeholders involved with a great deal in directing the appropriate way forward.

Additional discussion matters to Films and Publications Amendment Bill

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[15 October 2016] The Films and Publications Board presented its Annual Report for the 2015/16 financial year to the Portfolio Committee for Communications on 12 October 2016.

Films and Publications Board Annual Report 2015/16
Presentation of Films and Publications Board Annual Report 2015/16

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[26 September 2016] The Portfolio Committee for Communications met on 20 and 21 September to deliberate on the submissions made on the Films and Publications Amendment Bill 2015. Links below are to two presentations made by the Department of Communications in response to the submissions made:

DOC Responses to Submissions 20 September 2016

FPA Bill: Critical Inputs from Hearings

The Committee will reconvene on 13 October 2016. An amended version of the Bill is to be presented by no later than 25 October 2016.

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[31 August 2016] Below are links to presentations made to the Portfolio Committee during the public hearings on the Films and Publications Amendment Bill 2015:

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[29 August 2016] The hearings have been reduced to two days: final schedule below.

Programme_FPB_Public Hearings 30082016

Programme_FPB_Public Hearings 31082016

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[24 August 2016] It has now been confirmed that hearings n the Films and Publications Amendment Bill [B37-2015] will take place from 30 August 2016 to 2 September 2016 in the Old Assembly Chamber in the Parliamentary Precinct.

The schedule for the three days as provided by the Portfolio Committee:

Programme 30 August 2016

Programme 31 August 2016

Programme 1 September 2016

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[21 August 2016] We note from a recently published schedule of Parliamentary committee meetings that public hearings in respect of this Bill have been scheduled for 30 August to 1 September 2016 in the Old Assembly Chamber in the Parliamentary Precinct.

The Committee has scheduled a further 3 days from 20 September to 22 September 2016 for its deliberations on the Bill.

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[8 May 2016] This is a final document which will come into force on a date to be published by the Minister of Communications in the Government Gazette…

FPB Online Regulation Policy 2016

And our summary:

Overview of the Films and Publications Board Online Regulation Policy 2016

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[19 April 2016] We have tried to create a readable summary of the Bill….

Overview of the Film and Publications Amendment Bill 2015

Films and Publications Amendment Bill 2015 [B37-2015]

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[19 April 2016] Following a number of requests pointing out the inadequacy of the consultation period, the Portfolio Committee has extended the date for submissions on the Film and Publications Amendment Bill 2015 to 12h00 on 26 May 2016. Public hearings will be scheduled after the local government elections are held on 3 August 2016.

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[19 April 2016] The Film and Publications Board presented its strategy for the period 2016 – 2020 to the Portfolio Committee on Communications on 16 April 2016.

FPB Strategy 2016 Presentation DoC Strategy Session March 2016

The Board listed its priorities for this period as including:

  • Technology driven content classification.
  • Consumer education (empower adults and protect children).
  • Legislative review (platform neutral legislative regime).
  • Local and International partnerships (to ensure better regulation of the web).

The Board outlined its Strategic Outcomes (SOs) for the period:

  • SO 1 : Effective and Visible monitoring of films, games and certain publications throughout the entire value chain (content creators, producers and distributors of fpgs) to protect children and inform the general public
  • SO2: Consumers, general members of the public and industry informed about the mandate of the FPB
  • SO3: Effective and efficient management of FPB Operations
  • SO4: Ensure effective and innovative regulation of content distributed online, mobile and related platforms to protect children and inform the general public
  • SO5: Expand our footprint as the FPB through partnership and stakeholder   relationships in pursuance of our mandate

The Board is reviewing the possibility of some additional strategic outcomes, including:

  • An anti-piracy programme
  • Cyber-security interventions
  • Community media plans
  • Provincial stakeholder engagement forums

The Board indicated its concerns with it’s the impact of digital migration on its operations, its capacity to achieve its mandate, revenue streams as well as funding and its readiness for online content regulation.

The following are expenditure trends for SO2 and SO4 over the period 1 April 2012 to 31 March 2019:

2012/13* 2013/14* 2014/15* 2015/16** 2016/17*** 2017/18*** 2018/19***
SO 2 7 851 000 9 507 000 10 541 000 10 891 000 9 611 000 10 822 000 11 393 000
SO 4 926 000 1 838 000 7 906 000 8 168 000 686 000 7 467 000 7 793 000

*Audited figure

** Revised estimate

*** Estimate

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[7 April 2016] An advert calling for submissions on the Bill has been published: the deadline for written submissions is 12h00 on 29 April 2016.

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[4 April 2016] Public hearings on the Film and Publications Amendment Bill 2015 have been scheduled for  May 24/25 from 9.30 – 6pm. It appears that the Bill is currently under revision and that new version will be published for public comment.

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[21 March 2016] National Treasury has published the Expected National Expenditure (ENE) for each government departments, including the Department of Communications under which the Films and Publications Board (FPB) resides.

Some things of interest from the ENE for the DoC regarding the FPB (see pages 28-31):

  • Over the medium term the focus of the FPB will be on informing and educating society to empower adults and protect children against harmful content; implementing compliance, and monitoring and evaluation; developing leading edge technology to perform online content regulation, and to classify content for films, games and adult publications; and conducting research on the impact of content on the public.
  • This will take the form of outreach programmes and public campaigns that focus on encouraging adults to foster responsible viewing, gaming and reading choices in their communities. This is expected to be achieved through industry and parent workshops that focus on child protection with regards to the internet.
  • R31.8 million over the medium term is allocated to public awareness and education for these activities, which are expected to reach 10 million South Africans.
  • The FPB will also execute its mandate regarding the use of children in pornography – a criminal offence – by focusing on the proliferation of physical and online distribution platforms.
  • R22.2 million has been allocated over the medium term for the development and implementation of a content regulation framework that ensures 100 per cent classification and labelling of classifiable content distributed on online, mobile and related platforms. This is to be completed by 2017/18.
  • R22.9 million has been allocated million over the medium term to enable the board to host additional workshops and meetings, and make use of consultants and experts to help it in its activities. An estimated 60 per cent of this allocation is estimated to be spent on travelling costs as a result of conducting campaigns and outreach programmes in various regions.
  • “In response to harsh economic conditions, the board introduced a licensing fee in 2015/16 for the online distribution of content. Further research on this fee structure is being conducted to ensure it assists the board to remain financially sustainable.”
  • Transfers received from the Department of Communications are estimated to increase at an average annual rate of 5.6 per cent over the medium term from R86.5 million in 2016/17 to R97 million in 2018/19.

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[16 March 2016] The Film and Publications Board (FPB) and the Independent Communications Authority of South Africa (ICASA) signed a memorandum of understanding (MOU) on 14 March 2016 that will see the two entities address issues of co-jurisdiction “in a seamless and collaborative manner”.

According to an ICASA media release the MOU is intended to establish a formal relationship between ICASA and the FPB and to create a framework to deal with, inter alia:

  • uniform classification and labelling of content by the industry including the wireless application service providers, electronic communications service providers and broadcasters;
  • creation of awareness on compliance with applicable laws;
  • information sharing and research between the two entities on matters of mutual interest in the realm of content regulation; and
  • promotion of awareness of the role of ICASA and FPB in the protection of children against undesirable content.

The notion of an MOU between the two regulators was raised in Parliament on 18 August 2015, when ICASA indicated that the two entities had agreed on a Memorandum of Understanding (MoU) on a collaborative framework for the regulation of content and related services.

We are looking for a copy of the MOU but we do not expect that it will be a particularly detailed document.

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[3 February 2016] The Department of Communications is scheduled to brief the Portfolio Committee on Communications on the Films and Publications Board Amendment Bill from 09h30 – 12h30 on 23 February 2016.

FPB Presentation to the Portfolio Committee on the Film and Publications Amendment Bill 2015

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[1 February 2016] An opinion piece on online content regulation penned by the Minister of Communications and published on Daily Maverick is worth a read.

Regulating offensive comments online, defeating the scourge of racism

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[30 November 2015] As formally introduced into Parliament:

Films and Publications Amendment Bill 2015 [B37-2015]

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[24 November 2015] We have received the below copy of the Films and Publications Amendment Bill 2o15. Note that this is not the gazetted version.

Film and Publications Amendment Bill 2015

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[6 November 2015] The Minister of Communications has published a Notice in the Gazette setting out new Films and Publications tariffs, to be applicable from 9 November 2015.

Film and Publications Board Tariffs November 2015

Of note is that the licensing fee for “online distribution” not only remains but has been increased from R750 000 per annum to R795 000 per annum. Unlike the previous fee the new one is not subject to the discretion of the executive committee of the Film and Publications Board.

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[5 November 2015] The CEO of the Film and Publications Board noted in response to a question raised during the Board’s presentation to the Portfolio Committee for Communications on 20 October 2015 that it was still engaged with reviewing the responses received to its draft online content regulation policy. The presentation related to the performance of the Board during the 2014/2015 government year as captured in its Annual Report.

The Board anticipates completing this process by 31 March 2016.

In the same meeting the Board noted that its classifiers had identified and reported 169 cases of suspected child sexual abuse materials.

Film & Publications Board Annual Report 2014/15 (26MB)

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[29 October 2015] Lurch it is. A short Notice in the Gazette has noted that the title of the Bill to be introduced is the Films and Publications Amendment Bill 2015 rather than the Films and Publications Amendment Bill 2014 (link amended below).

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[23 October 2015] And we lurch a little closer to some real action with the publication by the Department of Communications of notice of their intention to introduction a Films and Publications Amendment Bill into the Parliamentary process during November 2015.

Notice of Introduction of Film and Publications Amendment Bill 2015

The notice states that the intention of the Bill is to

  • insert and amend certain definitions
  • provide for the establishment of, the composition of, and appointment of, members of the Penalty Committee and to provide for the powers and duties of the Penalty Committee
  • to regulate online distribution of digital films and digital games
  • to extend the functions of the Film and Publication Board of monitoring compliance with the Films and Publications Act to include online distributors in respect of the requirements to comply with the Films and Publications Act
  • to revise and further regulate the functions of compliance officers regarding entering and inspection of premises and facilities in which the business of the sale, hire or exhibition of films or games is being conducted
  • to further regulate the classification of publications, films and games
  • to provide for independent industry classification bodies accreditation thereof by the Film and Publication Board
  • to provide for classification of publications, films and games by the independent industry classification bodies
  • to provide for foreign classification systems and approval thereof by the Film and Publication Board
  • to provide for the use of classification ratings issued by a foreign classification authority or body
  • to provide for the right of appeal against classifications issued by independent industry classification bodies
  • to provide for exemptions in respect of online distribution of films and games
  • to further provide for the obligations of internet service providers regarding curbing the use of their services in advocating racism and hate speech
  • to revise and strengthen penal provisions
  • and to provide for matters connected therewith.

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[14 August 2015] The South African Cabinet has approved the introduction of a Films and Publications Amendment Bill into the Parliamentary process. If the FPB’s draft online content regulation policy was the phony war, the introduction of this Bill marks the real commencement of the content regulation debate in South Africa.

Media statement after yesterday’s cabinet meeting

4. Bills

4.1. Cabinet approved the submission of the Films and Publications Amendment Bill, 2015 to Parliament. The Bill amends the Films and Publications Act, 1996 (Act 65 of 1996). The amendments provide for technological advances, especially online and social-media platforms, in order to protect children from being exposed to disturbing and harmful media content in all platforms (physical and online).

The Bill strengthens the duties imposed on mobile networks and Internet service providers to protect the public and children during usage of their services. The Independent Communications Authority of South Africa will not issue licences or renewals without confirmation from the Film and Publication Board of full compliance with its legislation.

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[27 July 2015] The deadline for responses to the Film and Publication Board’s draft online content regulation policy expired on 15 July 2015. We will try and publish as many of the written submissions as we can find…

Association for Progress Communications (APC)

Cause for Justice (CFJ) +  CFJ Annexure-A_German-law-on-pornography

Centre for Justice and Crime Prevention

Children’s News Agency and Children’s Monitoring Project

Freedom of Expression Institute (FXI)

Helen Suzman Foundation

IAB, SANEF and The Press Council of South Africa

Internet Service Providers’ Association (ISPA) 

Legal Resources Centre

Media Monitoring Africa (MMA)

National Association of Broadcasters (NAB)

Right2Know

South African Communications Forum (SACF)

SOS Support Public Broadcasting Coalition

Wireless Access Providers’ Association (WAPA)

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[21 April 2015 – venues updated]  The Film and Publication Board (FPB) has announced dates for its national public consultations on the Draft Online Regulation Policy, to which members of the public are invited to “have their say”.

The public consultations are scheduled to take place as follows:

  • KwaZulu-Natal: 9 April 2015, 09:30-11:00 – media briefing, GCIS Sage Life House, 21 Slovo Street, Durban (open to all media)
  • KwaZulu-Natal: 10 April 2015, 17:00-19:00 – public engagement, Durban ICC, Inkosi Albert Luthuli ICC Complex, 45 Bram Fischer Rd, Durban (open to all members of the public)
  • Western Cape: 23 April 2015, 17h00–19h00 – Artscape Theatre, DF Malan Street, Foreshore, Cape Town
  • Limpopo: 6 May 2015, 17h00–19h00 – Library Auditorium, 71 Hans van Rensburg Street, Library Gardens, Polokwane
  • Eastern Cape: 14 May 2015, 17h00–19h00 – City Hall, Govan Mbeki Avenue, Port Elizabeth
  • Mpumalanga: 21 May 2015, 17h00–19h00 – Kanyamazane Community Hall, Sunbird Street, Kanyamazane, Mbombela
  • Gauteng: 28 May 2015, 17h00–19h00 – Turbine Hall (The Glass House), 65 Ntemi Piliso Street, Johannesburg

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[16 March 2015] Budget information for the FPB is contained in the Expected National Expenditure for the Department of Communications for the 2015/2016 year (page 28 of the document ff).

Of interest is that the expected expenditure on Strategic Outcome 4 – Online and Mobile Content Regulation will increase from the current 3.2% of total expenditure to 8.6% of total expenditure during the period 1 April 2015 to 31 March 2017. Expenditure on this item increased from ZAR 926 000 in 2012/3 to ZAR 7 906 000 in 2013/4 and will peak at ZAR 8 210 000 during 2016/7.

In the accompanying text the following is noteworthy:

  • The board  plans  to develop  and  implement  a  content  regulation  framework  over  the  medium  term  that  ensures  100 per cent classification and labelling of classifiable content distributed on online, mobile and related platforms by 2017.

The board’s spending priorities over the medium term will be to:

  • implement leading edge technology in the classification of content for films, games and adult publications;
  • inform and educate society to empower adults and  protect  children  against  harmful  content;
  • review  existing  legislation  to  align  with  new  developments  in technology;
  • conduct  research;  and  implement  compliance,  and  monitoring  and  evaluation.

The board has reprioritised funds towards these activities from its existing budget.

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[4  March 2015] The Film and Publications Board (FPB) has launched a public consultation process relating to it draft Online Content Regulation Policy.

FPB Draft Online Regulation Policy

Explanatory Memorandum on the Draft Online Regulation Policy

The FPB has also made available research conducted for it by Deloittes with regard to informal trading and online regulation as well as the results of the FPB’s public survey on online regulation and classification:

Deloittes research into online & informal distribution
Convergence survey report

Any person who wishes to submit representations or comments is invited to do so by 16h00 on 8 July 2015. Submissions should be emailed to policy.submissions@fpb.org.za or hand delivered to the FPB head office at ECO Glade 2, 420 Witch Hazel Street, ECO Park, Centurion, 0169 and marked for attention Ms. Tholoana Ncheke.

Proposed amendments to the Films and Publications Act have been sent to the State Law Advisers for review. The FPB anticipates that they will receive a response during March 2015 and they hope to finalise amendments to the Act this year.

Our view is they will be lucky to finalise them before Q1 2017.

On a related note, the FPB has issued an Invitation to Tender (RFT07/2014) “for a suitable supplier to provide Public Relations, Media Relations, Marketing and Communication services to the Film and Publication Board (FPB), to support the public consultations and media engagements for the adoption of the draft Online Content Regulation Policy.

Deadline for response: 11H00, on Friday, 27 March 2015.

Terms of Reference for PR Agencies Online Regulation Policy

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[2 March 2015]

FPB Invite

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[13 September 2014] The FPB has confirmed in Parliament that legislative amendments are to be made to the Film and Publications Act of 1996 in order to facilitate classification of online content. In a presentation used to brief the Portfolio Committee for Communications on its background and activities, the FPB stated that “a legislative amendment process is underway to allow for better regulation of online content distribution”.

Presentation to PC Communications 9 September 2014

The Strategic Outcomes (SOs) for the FPB to 2017/8 are

  • SO1: Effective and visible monitoring of industry throughout the entire value chain for the protection of children and adults through information
  • SO2: Consumers, general members of the public and industry informed about the mandate of the FPB
  • SO3: Effective and efficient management of FPB Operations
  • SO4: Revised, effective and innovative regulation of the content distributed online, mobile and related platforms for the protection of children and adults through information
  • SO5: Expand FPB footprint through effective partnerships and stakeholders in pursuance of our Mandate

Current challenges included:

  • Inadequate empirical research and industry-specific expertise
  • Proliferation of content on various platforms (local and international), accessible to South African citizens, especially online
  • Increase of illegal content and user generated content (especially Child Pornography)
  • Cyber-safety as it relates to children
  • Inadequate regulatory tools for online content distribution (pending legislative amendments, Online Strategy implementation, ICT tools)
  • Limited enforcement of FP Act provisions (inadequate enforcement provisions)
  • Reduced funding sources to meet an expanding mandate (Decreased revenue generation due to shift from physical to online distribution)

Under SO1 the FPB indicated that during the period October to December 2013 it had conducted 579 online inspections, 88 inspections of ISPs and 65 inspections of social networks. It noted that it had reinforced it capacity to improve its abilities in this regard.

Under SO4 during the same period:

  • A draft Online and Mobile Content Regulation Strategy had been developed and was awaiting Council approval, although a strategy costing remained outstanding
  • The FPB had joined the International Age Rating Coalition (IARC) a global effort administered by the world’s leading content rating authorities that unifies and streamlines the age classification process for digitally delivered games and apps and is in the process of implementing its framework
  • 4 Industry workshops and 2 Parent Workshops on child online protection had been held

Analysis of revenue for this period showed that

  • Grant subsidy R 55,631,000 was received to date from the Department of Home Affairs. The Grant subsidy is being transferred in quarterly instalments of R 20,669,000 at the beginning of each quarter.
  • Classification fees of R 6,375,750 were collected during the first three quarters of the current financial year. To date only 30% of projected fees were collected; this is due to a decline in the material submitted for classification.
  • Registration fees of R 339,919 were collected during the first three quarters of the current financial year. To date only 24% of projected fees were collected.
  • Annual renewal fees of R 195,149 were generated. To date only 26% of projected fees were collected. This is due to an increase in number of distributors closing shop.
  • Interest Income amounting to R 15,848 was received to date from short-term investment made during the current financial year.
  • Other income collected from during the quarter related to recoveries from staff and income received for Tender purchases, at end of second quarter total amount of R 6,200 was collected.
  • 70 % of the overall budgeted income was actually received as at the end of the third quarter.

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[7 April 2014] The Film and Publications Board (FPB) has published regulations updating the fees and tariffs applicable to activities it undertakes.

FPB Tariff Regulations April 2014

While the fee for registration of Internet Service Providers increases to R529, the regulations also introduce a “licensing fee” of “up to R750 000 at the discretion of the executive committee” for “online distribution”. The term “online distribution” is not defined in the Film and Publications Act although “distribute” is widely defined, so it is not clear what this activity covers. (It is, however, possible to be certain about the merits of having a tariff decided at the discretion of an executive committee.)

Registration with the FPB as an ISP

The FPB requires all ISPs to register with it and its latest regulations state that application for registration must be submitted on the prescribed form and must be accompanied (a) proof of payment of the prescribed fee (currently R529), (b) an original valid tax clearance certificate and (c) the SA registration number of the business.

Film and Publications Regulations 2014

An applicant ISP must further indicate in its application form all measures or steps taken or put in place to ensure that children are not exposed to child pornography and pornography and the FPB may request an ISP to demonstrate that these measures/steps remain effective.

The regulations explicitly state that “No person may host any website or provide access to the internet as an internet service provider, unless such person is registered with the Board in terms of section 27A of the Act.”

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[30 October 2013] The Portfolio Committee on Home Affairs identified greater cooperation with ICASA in respect of online content classification as one of its recommendations to the Department as tabled in its Budgetary Review and Recommendations Report on 22 October 2013.

“10.  RECOMMENDATIONS

Of the issues observed by the committee during the year under review the following were of particular concern and are recommended for prioritisation by the Minister of Home Affairs in the future planning and budget allocations:

10.1.             …..

10.13.                Improved working relations between the FPB and the Independent Communications Authority of South Africa (ICASA) are needed to ensure that content that is broadcast and privately posted online complies with the Film and Publications Act.”

It seems unlikely that either of these bodies  – working independently or under a memorandum of understanding – is even close to being able to take on online content classification (to the extent that this is an achievable aim, especially dealing with “privately posted” content). This issue is one under consideration by the ICT Policy Review Panel and questions relating to the regulation of content are likely to be raised in the Green Paper on ICT Policy to be released in late 2013.

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[13 April 2013] The Film & Publications Board (FPB) presented its annual performance plan, strategic plan for 2013/14 – 2017/18 and budget for 2013/14 to the Portfolio Committee on Home Affairs on 29 March 2013.

Of interest is strategic objective 4:

STRATEGIC OUTCOME PROGRAM STRATEGIC OBJECTIVES KEY INITIATIVES
4. Ensure effectiveand innovativeregulation of thecontent distributedon online, mobileand relatedplatforms to protectchildren and informthe general public. Online and mobilecontent regulation 1. Development andimplementation of a content regulationframework that ensures 100% classification2.Labelling of classifiablecontent distributed on online, mobile and related platforms, by2017. Develop and implement anInternet content regulation strategy and framework.Electronic contentlabellingOnline childprotection

This intent to regulate online content should, however, be balanced against the following statement from the FPB CEO during the presentation: “The Board noted that it was regrettably not possible to regulate internet content, and there were high volumes of distribution of pornography on the internet. The industry was highly litigious, and large sums were spent in legal fees”.