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Film and Publication Board
The Film and Publication Board (FPB) has the responsibility of classifying films, games and certain publications in line with South African values and norms under the overarching application of the Bill of Rights. This approach has a distinct difference from the censorship regime used by the Apartheid government to advance the then state’s discriminatory and dehumanising political agenda. The role of the FPB has previously been distinct as regulating the distribution of content, which was easily identifiable, falls within the jurisdiction of FPB. Films were either distributed via VHS, disc (DVD and Blu-ray) and in cinema format, games were likewise distributed in disc format whereas publications were in pre-packaged magazines and books. With developments in technology however, content has moved to online streaming or digital platforms. Consumers, and particularly children, now can access content which may not have been appropriately classified and labelled through such online streaming and digital platforms. The Film and Publications Amendment Act, 11 of 2019 (FPA Act) as amended came into operation on 1 March 2023. The purpose of the amendments in the FPA Act therefore is to close the regulatory gap that currently exists in the expanded market. Consumers, and children in particular, run a risk of exposure to harmful content which is distributed on online streaming and digital platforms. It is important to note that what is deemed to be harmful content may differ from one jurisdiction to the next. Harmful content is a value laden concept and it is important for it to reflect the societal values and norms of that country. The amendments therefore extend the current rating system and content regulatory regime to digital and online content providing services. This enhances the protection of children and limit consumer concerns and confusion. In addition to objects captured in section 2 (a) to (c) of the FP Act, the FPA Act inserts the following objects of the legislation: criminalising the possession, production and distribution of child pornography; and creating offences for non-compliance with the FP Act. It must be acknowledged that there is a need to improve coordination in regulating the creation, possession and distribution of audio-visual services and certain publications and by same ensure the protection of children and consumers from harmful and illegal digital and online content on all platforms. Co-ordination and collaboration amongst and between organs of state and industry is required to ensure future-proof regulation regime for the audio-visual services and publication sector. HistoryThe Film and Publication Board was established directly under the directive set out in the Films and Publications Act of 1996, shortly after South Africa achieved independence from apartheid rule. The Board's function would be to receive complaints, or applications to evaluate a film or publication, and classify it according to its suitability for different audiences. These publications could include movies, television programs, computer games, and music. The classification of a film or publication would trigger various prohibitions on possessing, exhibiting, distributing or advertising the film or publication. Different ratings were devised, the most serious of which was "X18", which prohibited anyone without a specific licence from distributing the content, which had to be conducted within "adult premises". Certain key exemptions from prohibitions were made to the scientific community (in regard to bona fide scientific, documentary, dramatic, artistic, literary or religious films and publications), and the media (in that those holding a broadcasting licence were exempt from the duty to apply for classification). An appeals process was also defined under the Act, allowing rulings made by the FPB to be contested and challenged. On 3 March 2020, Netflix agreed to obey the FPB's classification rules in the distribution of content in South Africa.[2] On 13 March, 2023, Hee Yay agreed to obey the FPB's classification rules in the distribution of content in South Africa.[3] RatingsThe FPB has the following rating guideline:
Former ratings include:
Additionally, the FPB provides the following content classifications:[4][5]
CriticismThe SpearIn 2012, the Goodman Gallery in Cape Town, showcased a painting by artist Brett Murray. It depicted President Jacob Zuma in a pose reminiscent of Lenin, but with fully exposed genitalia. The painting drew swift condemnation from the ANC ruling party, who condemned the artist, the artwork, and all media outlets who had published images of the painting.[6][7] Shortly after, the Film and Publication board sent five assessors to provide a rating for the artwork,[8] a move that was harshly criticized for being well outside its mandate, and beyond the remit of the purpose of the FPB. Despite this, the FPB issued an "16N" rating, which meant that the Gallery could no longer publicly show the painting if there were children in the building.[citation needed] During the classification proceedings, there were allegations that the FPB was acting outside its statutory remit, and that specific members had made statements or asked questions implying that it was entitled to censor political opinions and restrict freedom of the press.[9] This decision was later appealed following a public backlash, and amidst accusations of state-led censorship. Upon appeal in October 2012, the FPB set aside its original rating, thereby effectively de-classifying the painting. This had taken place after the painting was famously defaced and sold, which rendered the ruling moot on practical terms.[10][11][12] Online Regulation BillIn March 2015, the FPB gazetted a notice inviting public comment on a Draft Online Regulation policy, which sought sweeping new powers to police and regulate all aspects of content on the internet.[13] In this draft policy, the FPB sought to classify all manner of content, including, for instance, user-submitted videos to sites such as YouTube, which would require all such content to first be classified by the FPB at a charge and labelled as FPB-approved before it would be allowed to be legally published online.[14] Specifically, the following sections from the draft detail the broadness of the powers FPB seek:
The Electronic Frontier Foundation described the proposed legislation as follows:
The EFF also went on to point out that the FPB had effectively put the burden on South African ISPs to remove offending content, or replace said content with FPB-approved (and labelled) content, even on platforms such as YouTube, Vimeo and Vine.[15] In the response to what is understood as one of the most draconian pieces of internet legislation seen in the world, the FPB has been on the receiving end of a growing online backlash, proliferated through social media such as Facebook and Twitter. In particular, the Right2Know coalition, who advocate open government and whistleblowing, have championed the cause against FPB's draft proposal.[16] References
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