R2K slams Film and Publication Board's attempt to censor the internet
In a move eerily reminiscent of apartheid-era censorship, the Film and Publications Board gazetted a draft online regulation policy earlier this month that would give it the power to police everything on the internet, including blogs, personal websites and Facebook pages. The Right2Know campaign immediately started mobilising South Africans against this draconian infringement on free speech which would surely fail the Constitutional test. 
The Right2Know Campaign demands that the Film and Publications Board to scrap the Draft Online Regulation Policy document gazetted on Wednesday, 4 March 2015. The FPB must desist from any attempt to exercise pre-publication censorship of Internet content.
The document, in its vague language and open-ended statements, would leave authorities with far too much room to infringe on the public’s right to freely receive and impart information as enshrined in chapter two of the Constitution.
The document states that:
“Any person who intends to distribute any film, game, or certain publication in the Republic of South Africa shall first comply with section 18(1) of the [1996 Films and Publications] Act by applying, in the prescribed manner, for registration as film or game and publications distributor.”
It is clear from this statement that the new regulations apply to an absurdly broad range of content that is not limited to that which is published online. It also suggests that the target of this regulation is not just major distributors but also individuals. In terms of the wording of the document, everything published on the Internet – including blogs, personal websites and Facebook pages – could be subjected to classification from the FPB.
According to the document, anyone wishing to publish or distribute content will have to first apply for a digital publisher’s online distribution agreement with the FPB, which will require a subscription fee. Once paid, the publisher would have to submit the content to the FPB for classification prior to publishing. This effectively is a specific form of pre-publication censorship, which is not acceptable.
Moreover, the time spent on the pre-classification of content would undermine one of the most valuable traits of the internet – its immediacy. There is also a very real threat that in the future, organisations lacking in resources and unable to afford costly subscription fees, such as community-oriented news outlets and civil society groups, will be severely hampered by the unnecessarily bureaucratic regulations envisioned by the FPB. These online media outlets provide a valuable contribution to the diversity of the South African media landscape. The FPB draft regulations will disenable this diversity.
Classifiers in your office
Worryingly, the regulations would allow the FPB to “dispatch classifiers to the distributors’ premises for the purposes of classifying digital content.” Distributors would have to “ensure that the work of classifiers takes place unhindered and without interference.” The vague wording of the regulations would allow for ‘classifiers’ to visit, for example, the homes of citizen journalists and ordinary internet users. Such sweeping powers reek of apartheid-era censorship, whose advocates similarly relied on the guise of moralising arguments. In this case, the FPB argues that the new measures are a necessary response to protect children from harmful or disturbing material. While there is clearly a need to protect children from those who produce or distribute child pornography, the law already provides for that by criminalising those who do so. The response to the threat of child pornography cannot be at odds with the rights guaranteed by the constitution. There are various less stifling measures to protect children from harm.
The FPB’s plan to police the internet is totally impracticable. New content is posted online via various platforms every second, which the FPB cannot practically prevent. It is likely that the majority of online users will not apply to the FPB for pre-classification of content, nor pay the subscription fee prior to publication, but under these regulations online users stand to be criminalised for doing something as simple as posting content online. This is at odds with Section 16 (1b) in the Bill of Rights. It also reveals a massive ignorance on the part of the FPB on how the internet actually works. And contrary to the arguments of the FPB, these regulations cannot practically prevent the distribution of content that is harmful to children.
Room for abuse
Although it is not possible to practically classify all online content prior to publication, the vague language of the draft regulations, however, could be used selectively to target specific users and online media outlets who have published content even when it is not harmful to children (ie. ANY content), thus amounting to post-publication censorship. The censoring power FPB is a hangover from apartheid and it has no place in a digital converged future.
It is also apparent that the FPB is overstepping its legal boundaries. The Films and Publications Act of 1996 only gives the FPB the ability to issue guidelines, not to legislate. Additionally the Act gives the FPB jurisdiction over films and games, but not over all published content. The FPB has failed to adequately consult with relevant stakeholders before drafting the document. Only industry stakeholders were invited to participate behind closed doors, while civil society was excluded from the process despite the fact that the regulations could have profound consequences for ordinary members of the public. The Right2Know Campaign condemns this latest attempt to broaden the power of authorities to censor and restrict publishable content — the sort of action characteristic of an increasingly overbearing, paranoid and insecure state.
The Right2Know Campaign demands that the Film and Publications Board immediately withdraw the Draft Online Regulation Policy document. The FPB must desist from any attempt to regulate Internet content. We already have laws to protect our children, and laws on hate speech etc. The FPB’s draft online regulations smack of unnecessary censorship, are unconstitutional and must be scrapped.
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