the film & publication board and online content regulation

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[13 May 2024] The Film and Publications Board (FPB) has published its Annual Performance Plan (APP) for the period 1 April 2024 to 31 March 2025.

FPB Annual Performance Plan 2024/5

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[17 April 2024] The FPB has published a notice of withdrawal on its website.

Withdrawal of Notice to ISPs and Platforms setting out obligations in respect of 2024 elections

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[7 April 2024] The FPB has agreed to withdraw the notice purporting to set out obligations of internet service providers, platforms and others in respect of combating misinformation and disinformation. The agreement to withdraw the notice was prompted by urgent legal proceedings initiated by Media Monitoring Africa and others on 5 April 2024, arguing that the notice was unconstitutional in multiple respects.

Details of the litigation are available from the powerlaw.africa website: Media Monitoring Africa Trust and Others v Film and Publication Board and Others (2024/037092)

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[24 March 2024] The Film and Publication Board (FPB) has issued a notice in terms of section 18H and section 27A of the Films and Publications Act (“the FPA”) setting out obligations of internet service providers and social media platforms to combat disinformation and misinformation in the lead up to the 2024 national elections in South Africa.

FPB Notice ISP and Platform obligations in respect of 2024 elections

The FPB has “identified misinformation/disinformation and fake news, as harmful or disturbing, due to its potential to propagate for war, incite violence, or advocate hate speech. Such material is therefore prohibited in terms of the Act”.

The Notice specifies that:

• “disinformation” means information that is false, but the person who disseminates it knows it is false
• “misinformation” means information that is false, but the person who disseminates it believes it to be true

The FPB is essentially saying that misinformation and disinformation constitute harmful content and that it is mandated to take steps to prevent the dissemination of harmful content.

The Notice restates the prohibition in section 18H of the FPA against distribution of propaganda for war; incitement of imminent violence and advocacy of hatred that is based on identifiable group characteristics, and that constitutes incitement to cause harm.

Schedule 3 to the Notice sets out obligations of internet service providers:

Knowledge of the use of services of an internet service provider. – Where an internet access provider has knowledge that its services have been used for the hosting or distribution of content that amount to propaganda for war, incitement of imminent violence or advocating hatred based on an identifiable group characteristic and that constitutes incitement to cause harm, such internet service provider shall report to the FPB in writing , within 30 (thirty) days from publication of this Notice –

(a) All reasonable measures available on their platforms to prevent prohibited content ahead of and during the 2024 National and Provincial Elections, in particular misinformation, disinformation and fake news.

(b) All reasonable steps taken to prevent access to content which amounts to propaganda for war, incitement of imminent violence, advocacy of hatred that is based on an identifiable group characteristic, and that constitutes incitement to cause harm such as misinformation and disinformation ahead of and during the 2024 National and Provincial Elections.

The Notice confirms that a failure to comply with the requirements of sections 27A (1) and (2) of the FPA is an offence which may attract a fine or imprisonment or both where there is a conviction.

Internet Service Providers, user-to-user services including Social Media and Video Sharing platforms and search engines have a responsibility ahead of and during the 2024 National and Provincial Elections to ensure that their platforms are not used for propaganda for war; incitement of imminent violence and advocacy of hatred that is based on identifiable group characteristics, and that constitutes incitement to cause harm in terms of section 18H of the Act.

Finally, the Notice requires that ISPs, social media and video sharing platforms and search engines are required to report to the FPB on:

• Reasonable measures put in place to prevent prohibited content ahead of and during 2024 National Elections in the Republic; and
• All reasonable steps taken to prevent access and/or distribution of content which amounts to propaganda for war, incitement of imminent violence, advocacy of hatred that is based on an identifiable group characteristic, and that constitutes incitement to cause harm such as misinformation and disinformation during election.

Reports are to be sent to clientsupport@fpb.org.za.

The notice was published on 22 March 2024 and responses are due by 30 May 2024.

[Note that this notice is problematic in that the FPB does not have the powers it is purporting to exercise and what it is imposing is an impermissible restriction on the right to freedom of expression.]

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[20 February 2024] The Film and Publication Board (FPB) has published amendments to its Tariff Regulations 2020, effectively revising tariffs upwards by the consumer price index (CPI) + 1%.

FPA Amendments to Tariff Regulations 16 February 2024

The amendments purport to be effective from 1 April 2023 but the more correct view is that they would come into operation on their date of publication in the Government Gazette (i.e. 16 February 2024).

The tariff for registration as an internet service provider (ISP) is R779.84. No tariff is specified for the renewal of registration as an ISP.

The FPB has also published a notice setting out the registration and classification obligations of distributors and exhibitors under sections 18(1) and 24A of the Films and Publications Act.

FPA Schedules under s18 and 24A 16 February 2024 

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[15 October 2023] Film and Publication Board Annual Report 2022/23

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[21 August 2023] The Board has published a set of draft regulatory instruments for comment.

FPB Draft Industry Code on Prevention of Online Harm August 2023

Draft Guidelines to determine whether content is harmful August 2023

FPB Draft Guideline for Peer-to-Peer Video Sharing August 2023

Draft Regulatory Instruments of the Film and Publication Board 18 August 2023 (original notice combining the above)

Submissions – due by 29 September 2023 – should be marked for the attention of Mr Andrew Sebapu, and can be emailed to
clientsupport@fpb.org.za with the subject line “draft Regulatory Instruments of the Film and Publication Board”

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[23 June 2023] The Film and Publication Board has published a draft accreditation framework and associated mock application form for public comment.

Draft Accreditation Framework

Comments are due by 4 August 2023 and must be addressed for the attention of Mr Oupa Makhalemele at oupa.makhalemele@fpb.org.za with the subject line ‘draft Accreditation Framework of the Film and Publication Board with mock application form’.

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[28 March 2023] The Film and Publication Board has gazetted the following regulatory instruments following public submissions:

Notice of publication

Enforcement Committee Rules

Complaints Handling Procedures

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[6 January 2023] The Film and Publication Board, in terms of section 31(1)(a)(c) and (f) of the Films and Publications Act has published the following draft regulatory instruments for public comment:

• Draft Enforcement Committee Rules
• Draft Complaints Handling Procedures 
• Draft Films and Publications Amendment Tariff’s Regulations
• Draft Regulations on the Processes and Procedures for Applying or Registering, Amending, Transferring and Renewing Licences and Terms and Conditions to be Applied to such Licences

Comments are due by 17 February 2023 and must be addressed for the attention of Mr Pandelis Gregoriou at clientsupport@fpb.org.za with the subject line ‘draft Regulatory Instruments of the Film and Publication Board’.

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[1 November 2022] The Film and Publication Board has in terms of section 24C and 27A of the Films and Publications Act, issued a legal notice to ISPs requiring them comply with various provisions of the Act.

The legal notice requires ISPs to report on measures they have taken to tackle the proliferation of Child Sexual Abuse Material (CSAM) and other online harms on their platforms and/or services.

The gazetted Notice requires that ISPs comply with the provisions detailed therein by 27 January 2023.

Notice in terms of section 24C and section 27A of the Films and Publications Act, 1996 (Act no. 65 of 1996), as amended

Press release

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[2 September 2022] The Films and Publications Amendment Regulations, 2022 have come into force following publication in the goverment gazette.

Films and Publications Amendment Regulations, 2022

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[6 July 2022] The Council of the Film and Publication Board has published updated classification guidelines for films, publications and interactive computer games.

Classification guidelines for the Classification of Films Interactive Computer Games and certain publications

The guidelines set out the various classifiable elements – such as nudity, language and violence – and the manner in which they are to be applied.

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[9 May 2022] The Film and Publication Board updated Parliament on its progress in implementing the provisions of the amended Films and Publications Act on 3 May 2022.

FPB 2022-2023 APP Presentation

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[1 March 2022] The President of South Africa has determined that the Films and Publications Amendment Act 11 of 2019 will come into force today, 1 March 2022.

Proclamation Notice Films and Publications Amendment Act 11 of 2019

Films and Publications Amendment Act 11 of 2019

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[6 November 2020] After three years the Film and Publications Board has finalised its review of tariffs applicable to its interactions with distributors and others.

Films & Publications Tariffs Regulations 2020

New tariffs specified in section 1 of the Regulations relating to physical distribution and registrations will come into force on 1 February 2021.

New tariffs specified in section 2 of the Regulations relating to online distribution and registrations will come into force on 1 December 2020.

Most tariffs are set with reference to the size of the distributor (we are not clear on how the third column will work):

Physical Distributor and ISP registration fees

Online Distributor Annual Licence Fees (Films / Games)

Fees are applied in a stepped fashion (i.e. 0-499 @ Rx + 500-999 @ Ry etc)

Online distributor annual license fees are capped at ZAR2 million.

All tariffs are subject to an annual Consumer Price Index (CPI) increase plus 1% effective from 1 April of every year.

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[30 October 2020] The Minister has issued an invitation to the public to nominate potential appointees to the Council of the Film and Publication Board. The closing date for submissions is 14 November 2020 and these may be submitted to: nedappointmentfpb@dtps.gov.za for the attention of Ms. Precious Tsolo.

Notice of Invitation to Nominate

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[30 August 2020] The Minister has published a notice that the deadline for submissions on the Draft Film and Publications Regulations 2020 has been extended to 12 October 2020.

Notice of extension

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[15 August 2020] The FPB is engaging with various stakeholder groups on the Draft Film and Publications Regulations, 2020 based on the below presentations:

Presentation – draft Films and Publications Regulations 2020 – Online Distributors – 5 August 2020

Presentation – draft Films and Publications Regulations 2020 – Game Distributors – 6 August 2020

Presentation – draft Films and Publications Regulations 2020 – Adult Content Distributors – 7 August 2020

Presentation – draft Films and Publications Regulations 2020 – WASPA ISPA – 17 August 2020

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[3 July 2020] Draft Films and Publications Amendment Regulations, 2020

Comments are due by 17 August 2020 (previously 3 August 2020) and may be submitted to: clientsupport@fpb.org.za, for the attention of Mr Pandelis Gregoriou, using ‘draft Film and Publication Regulations’ in the subject field. Enquiries can be made to 012 003 1400.

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[4 October 2019] The President has signed the Films and Publications Amendment Act 11 of 2019 into law, although it will only come into force on a future date to be proclaimed in the Government Gazette.

Films and Publications Amendment Act 11 of 2019

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[4 July 2019] The Film and Publications Board (FPB) presented its Annual Performance Plan (APP) for the 2019/2020 government financial year to the Portfolio Committee for Communications on 3 July 2019.

NDP 2030 and FPB targets 2019-20 (FPB APP Presentation 3 July 2019)

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[7 April 2019] The Council of the Film and Publications Board has published updated classification guidelines for films, publications and interactive computer games.

Classification guidelines for the Classification of Films Interactive Computer Games and certain publications

The guidelines set out the various classifiable elements – such as nudity, language and violence – and the manner in which they are to be applied.

It is unfortunate that the Board has again overstated its jurisdiction:

All legitimate content that meets the criteria of a film, game, publication or online content as defined in the Act falls within the jurisdiction of the FPB. This includes films exhibited at cinemas, DVDs, Blu Rays, videos on demand, mobile content (in so far as it does not amount to broadcast content) and the internet.

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[20 March 2019] The Films and Publications Amendment Bill 2019 has now completed its long journey through the Parliamentary process after being passed by the National Assembly on 19 March 2019, and has been sent to the President for signature and proclamation.

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[17 March 2019] The Portfolio Committee adopted its report on the Bill and published what is likely to the final version of the Bill.

Films and Publications Amendment Bill B37C-2015 (this sets out the changes proposed by the NCOP)

Films and Publications Amendment Bill B37D-2015 (full version incorporating latest amendments)

Report of PC Communications on Film and Publications Amendment Bill 7 March 2019

[27 February 2019] The Bill is inching closer to finalisation, with the amendments made by the National Council of Provinces  (NCOP) approved by the Portfolio Committee for Communications on 26 February 2019.

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[30 October 2018] The Select Committee on Communications and Public Enterprises met to finalise this Bill on 24 October 2018, which they duly did. The Bill will now be referred to the President for signature.

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[20 October 2018] The Select Committee for Communications and Publications has published a list of amendments which it proposes to the Film and Publications Amendment Bill as received from the Portfolio Committee for Communications,

Films and Publications Amendment Bill Select Committee Proposed Amendments

There are three proposed amendments, two of which are technical while the third removes the requirements that members of the new Enforcement Committee should have qualifications and extensive experience have been removed. The only remaining provision is that the chair be a retired judge.

[4 September 2018] The Film and Publications Board, in terms of the Film and Publications Act, as amended,  have published a revised set of Classification Guidelines for public comment. Interested parties are invited to submit written comments by 26 October 2018 to Phuti.Moyaha@fpb.org.za with ‘draft Classification Guidelines’ in the subject field of your email. Enquiries can be directed to 012 003 1400.

Notice

Revised Guidelines

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[6 August 2018] The National Council of Provinces has scheduled meetings on this Bill. On 15 August 2018 it will receive a formal briefing from the Department of Communications after which written submissions will be considered on 22nd August. Based on its assessment of the written submissions the Select Committee may request oral presentations from certain parties, which will be entertained on 5 September 2018.

According to the Committee secretary there is an opportunity to make further written submissions on the B version of the Bill, but these must be received prior to 22 August 2018.

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[19 April 2018] Film and Publication Board Presentation: 2018/2019 Annual Performance Plan

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[2 March 2018] Report of the Portfolio Committee on Communications on the public hearings on the Films and Publications Amendment Bill B37 – 2015 20 February 2018

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[28 February 2018] We have clarified that the Bill lapsed as per Rule 333 of the Joint Rules of Parliament, which provides for the lapsing of Bills on last sitting day of annual session or term of the NA or when NA is dissolved.

The Bill was revived through a motion in a sitting on 27 February 2018 and it will now go before the National Assembly for debate on 6 May.

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[21 February 2018] It appears that the Film and Publications Amendment Bill 2017 has “lapsed”.

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[16 February 2018] The FPB has published a discussion document on the review of classification guidelines which are reviewed every five years. Stakeholders, including members of the public are invited to provide input by way of written submissions emailed to ClassificationGuidelines@fpb.org.za by 27 March 2018. Public consultation sessions will be held throughout the country from 19 February to 13 March 2018.

Discussion Document on the Review of the Classification Guidelines

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[14 February 2018] The Portfolio Committee is scheduled to discuss the adoption of the report into the public hearings on the Bill on 20 February 2018. Presumably thereafter the Bill will be sent on to the National Assembly for debate.

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[26 November 2017] The Portfolio Committee voted to adopt the Bill in the form linked to below on 14 November 2017. The Bill will now go before the National Assembly.

List of Amendments made to the Film and Publications Amendment Bill [B37A-2015]

Films and Publications Amendment Bill as adopted by Portfolio Committee for Communications [B37B-2015]

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[10 November 2017] The deadline for submissions on the Film and Publications Board Draft Tariffs Review has been extended to 16h00 on 22 December 2017.

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[22 October 2017] As things stand, further deliberations on the Films and Publications Amendment will take place on 24 October and 14 November, with the Minister scheduled to address the Committee on the status of the Films and Publications Board on 28 November 2017.

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[2 October 2017] The FPB has published new draft tariffs applicable to the various registration and classification services which it provides.

Film and Publications Board Draft Tariffs Review

Submissions are due by 10 November 2017 and should be emailed to tariffs.submissions@fpb.org.za marked for the attention of Tshepo Mogale.

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[28 September 2017] The Portfolio Committee will meet on 10 October 2017 to deliberate further on the Bill.

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[10 June 2017] The “Report of the Portfolio Committee on Communications on its deliberations on Budget Vote 3: Communications, and its Entities, Dated 16 May 2017” notes that while the Committee is aware of the delay in finalising the Bill, the “Committee’s interest is in ensuring that the Bill passes Constitutional muster and serves the purpose it is intended for”.

The status quo is that the Committee has requested – through an Interim report on the Bill – the permission of the National Assembly to amend provisions of the Films and Publications Act other than those to be amended under the Film and Publications Amendment Bill.

Interim report PCC on the Films and Publications Amendment Bill B 37 – 2015, 23 May 2017

“Whilst inquiring into the subject of the Bill and conducting the public hearings and deliberations, the Committee realised that it may be necessary to amend other provisions of the principal Act which were not included in the Bill. The Committee now seeks to amend other provisions in the Act beyond the scope of the Bill. NA Rule 286(4)(c) stipulates that when a Committee deals with a bill amending provisions of legislation, and  the Committee intends to propose amendments to other provisions of the principal Act, the Committee must seek the permission of the Assembly to do so.  

In light of NA Rule 286(4)(c), the Committee hereby seeks the permission of the National Assembly to inquire into and amend additional provisions of the principal Act.”

The Committee made specific references to section 4A – which deals with the powers and duties of the Council of the Film and Publications Board – and the definitions section.

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[16 May 2017] Deliberations on the Film and Publications Amendment Bill continued in Parliament today, with what seemed a very cursory clause-by-clause deliberation. Below is a link to the presentation made by the Department of Communications.

DoC Presentation FP Amendment Bill 16 May 2017

[16 May 2017] The Film and Publications Board presented their annual performance plan for 1 April 2017 to 31 March 2018 to the Portfolio Committee for Communications on 3 May 2017.

FPB Strategy and Annual Performance Plan Presentation 3 May 2017

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[25 April 2017] The Portfolio Committee for Communications has released its draft programme for the Parliamentary term starting on 2 May 2017 and ending on 30 June 2017. The following meetings are relevant to the Film and Publications Amendment Bill 2015:

• Tuesday, 23 May (09h30 – 13h00): Briefing by the Department of Planning, Monitoring and Evaluation on the compliance of the Films and Publications Amendment Bill [B37 – 2015] with Socio-Economic Impact Assessment System SEIAS) & Further deliberations on Bill
• Tuesday 30 May (09h30 – 13h00): Adoption of report of public hearings on the Films and Publications Amendment Bill [B37 – 2015] & final deliberations on the Bill.

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[10 March 2017] Below are links to documents presented at the appearance of the Department of Communications and the Film and Publications Board before the Portfolio Committee for Communications on 7 March 2017.__

• Department of Communications Presentation
  • Annexure A – Review of Tariffs for Content Distribution in South Africa Close-Out Presentation
  • Annexure B – Final Impact Assessment: Film and Publication Amendment Bill, 2015
  • Annexure C – Clause-by-clause Narrative Report

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[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:

• Cause for Justice
• Centre for Constitutional Rights
• Emma Sadleir
• Google
• ISPA
• Media Monitoring Africa & SOS Coalition
• Multichoice
• National Association of Broadcasters
• Press Council of SA
• Right2Know
• SABC
• South African Communications Forum
• SA Jewish Board of Deputies

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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:

*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.

MOU

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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]

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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:

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”.