PEN South Africa Condemns Film and Publication Board’s Plan to Control the Internet

PEN South Africa condemns the draconian regulations which the Film and Publication Board plans to introduce to control the content of messages and other expressions of opinion which civil society and other users of the internet write online. It calls for their withdrawal because they are unconstitutional, in conflict with other law, poorly drafted and vague, too far reaching in scope, difficult to interpret and unworkable.

The regulations are aimed at the online views of bloggers, users of Twitter, Facebook, You-Tube and other social media websites, and the reason advanced for this move is to ensure that children are protected from exposure to disturbing and harmful content as well as premature exposure to adult experiences.

The board adds that for all intents and purposes, content includes films, games, “certain publications” – not defined but presumed to cover anything that a blogger or user posts online – and self-generated content uploaded or posted on social media platforms. It says that there is a proliferation of illegal content and the “abuse’’ of these platforms which are, at times, used by sexual predators to lure their child victims and by people who advocate racist ideologies and, therefore, use these platforms to undermine the government’s agenda on social cohesion.

The board states that it has drawn up a policy aimed at ensuring that online distributors remain vigilant, that their filtering mechanisms are adequate to protect children against exposure to harmful content and that people with racist ideologies do not use these platforms to undermine government’s social cohesion and transformation agenda. While the desire to protect children is laudable the methods chosen to do so are highly questionable.

The board states that this policy would clearly apply to major corporates such as Google and Apple, who would face “sanctions” if they don’t comply. It could also affect bloggers or individuals posting material or video clips online, exposing them to legal sanctions for exercising constitutionally protected free speech.

The board wants to widen the categories of businesses that must register with it. Registration incurs a fee and for online content distributors it contemplates a fee of up to R750 000. But in addition to businesses, the board states that anyone who wants to distribute online a film, game or “certain publications” has to apply to the Department of Communications for an online distribution agreement and pay a fee, determined by the minister. This appears to apply to all bloggers and users who generate online content who will then have to classify the content on behalf of the board using its classification guidelines.

If the board disapproves of the content it can order that it be removed (“taken down”) and the author of the material pay a further fee for this process.

In calling for the withdrawal of the draft regulations, PEN South Africa points out that these regulations also range over offences already covered by the law. People will also strongly resist having to register with the Film and Publication Board and carry out its onerous requirements such as complying with classification rules and publishing the board’s logo online as well. Objections will also be raised to the fees to be paid and other costs incurred which will be seen as a kind of tax on the use of the internet.

Particularly objectionable is the requirement that online content distributors should be registered and thus could be de-registered for failure to comply with the board’s extensive requirements which means they can be prevented from publishing online.

In effect, this creates a detestable licensing system which can be used to violate constitutionally protected freedom of expression online and curbing the flow of information, the exchange of ideas and the engagement in creative writing online.

One of the uncertainties in the proposal is whether every content distributor in the world would have to register or be in breach of the regulations since they all make content available in South Africa. Also uncertain but likely is the need for the Films and Publications Act itself to undergo substantial revision to ensure a clear and constitutional basis for appropriate regulatory intervention in respect of online content.

Many organisations including the Freedom of Expression Institute, the Right To Know Campaign, the SOS (Save our public broadcaster) Coalition, the Association for Progressive Communications and Research ICT Africa have rejected the draft regulations which inevitably will be challenged in court.

The regulations do not apply to the websites of newspapers and magazines who are members of the Press Council because they are exempted from the Films and Publications Act. Also gaining exemption will be the websites of organisations that become members of the Press Council and its ombudsman system for dealing with complaints about their online content when the council has completed its restructuring to allow for such membership. The Film and Publication Board has agreed to this exemption which will also apply to bloggers and individuals who become members of the Press Council.

But this process entails paying a fee the amount of which has still to be decided. It is unlikely that a large number of online users will seek council membership so they will become subject to whatever the Film and Publication Board eventually puts into practice.

PEN South Africa with its large membership of writers is greatly concerned about their welfare should these draft regulations or other rules – equally objectionable – be introduced to a group of people whose desire to work in a freedom of expression environment is deeply ingrained.

PEN South Africa is an organisation representing writers, defending free-expression and encouraging literature. It abides by a strong PEN Charter which champions the ideal of “one humanity living in peace in one world”. Write! Africa Write! becomes a call for African writers to say what they wish to say and to eschew the divisions of the past in favour of the idea of one humanity living in peace on one continent. Originally PEN stood for Poets, Playwrights, Essayists, Editors, and Novelists. A leading voice of literature, PEN now brings together poets, novelists, essayists, historians, playwrights, critics, translators, editors, journalists and screenwriters in a common concern for the craft and art of writing and a commitment to freedom of expression through the written word.

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