Regulations are soon to be promulgated to give effect to the provisions of the Film and Publications Act, which was amended last year. It will break the internet, and require a censorship bureaucracy of which the Apartheid government could only dream.
‘[V]ague, unenforceable, impractical, prone to abuse.’ That’s how Afriforum described the Draft Films and Publications Amendment Regulations, gazetted in July by communications and digital technologies minister Stella Ndabeni-Abrahams.
It reconfirms the government’s total ignorance of how the internet works, and its belief that citizens must be controlled by strict authority, for their own good.
It also demonstrates that the African National Congress (ANC) is no different from the old National Party. Like the National Party, its moral views are profoundly conservative. Like the National Party, it feels insecure in its power. Like the National Party, it often comes under attack by the media and citizens alike. Like the National Party, it views criticism as disloyal, and frequently responds with irritation and anger.
The draft regulations, like the Films and Publications Amendment Act that was signed into law last year, are draconian and regressive, and will severely curtail the ability of South Africans to express their views.
Classifying everything under the sun
In the past, the Film and Publications Board (FPB) classified movies and other content that were offered for sale or hire. That’s where the age restriction label comes from.
The new regulations extend the authority of the FPB to any content, including content distributed for free. It is so broadly worded that any online video clip of any length qualifies as a ‘film’.
Anything else under the sun qualifies as a ‘publication’. A sound recording of any kind. Any drawing, photo, illustration, picture, print, lithograph, engraving, or painting. Any writing, of any length, which ‘has been duplicated’ (which all modern electronic writing has, by definition). A statue, carved figure, statue or model. Any computer code, except games, which are classified separately, and films, ditto. The regulations literally say they apply to ‘any content made available using the internet’.
Anyone who wants to publish films, including live streams, podcasts, or social media videos, will be required to register, upon payment of a fee and proof that their tax affairs are in order, as a distributor or exhibitor. Failure to register means you will not be allowed to publish any video, anywhere, even for free.
All publications, games and films must, prior to distribution, be submitted to the FPB for classification. This includes all online content. This process could take weeks and will incur a fee. This may require appearing in person before the FPB.
The only exemptions to this requirement are media houses that are members of the Press Council of South Africa, and advertisements that fall under the Advertising Standards Authority of South Africa. Foreign publishers may apply to have foreign ratings systems accredited in South Africa.
Government permission
If you publish educational videos, fitness videos, spiritual videos, or training videos, you can apply for an exemption, but that will still require you to pay a fee and prove that your tax affairs are in order, so it still amounts to getting government permission to publish.
Distributors may apply for the right to self-classify content, which is the only way to bypass the delay of weeks or months while waiting for FPB classification or exemption. However, this will cost a very substantial annual fee (likely to run to hundreds of thousands or even millions of rand), and one slip could cost them that right.
If you’re handing out photocopied flyers, they need to be classified. If you publish a church newsletter, or a residents’ association circular, you’d better get FPB approval.
If you post a picture of your beach holiday to Facebook, or a racy quip to Twitter, they need to be classified, lest you corrupt a minor somewhere.
If you’re a blogger, I hope you can afford a massive self-classification fee, because otherwise you might as well shut your blog down for good.
If you carve pipes or whistles, each one will have to be submitted for classification, so a panel of government bureaucrats may inspect it for hidden phallic imagery.
The regulations also appear to tighten up what sort of adult content will be legal for adult audiences. Games may not depict any explicit sexual conduct whatsoever. Films may not depict ‘sexual violence’, which would prohibit any film depicting rape or sexual assault, no matter how it treats the subject or how many Oscars it won, and might well have the effect of outlawing BDSM content.
Vast new censorship bureaucracy
It is, of course, quite impossible for the FPB to vet and classify every piece of content that gets published, especially online. Yet these regulations, with few exceptions, require it to do so. Even with a vast new bureaucracy of censors, this task will prove to be impossible.
Real-time commentary on current affairs will become impossible, if these regulations are to be followed. Only registered news media will be able to write about the news. Joe and Jane Citizen will have to ask permission, pay a fee, and wait a few weeks, to post their two cents to social media.
The Act, and these regulations, are patently absurd. One cannot expect ordinary citizens to comply with these deeply stupid laws. They won’t. And like with irrational lockdown regulations, their respect for the law and the government making it will be further eroded.
There should, however, be thousands of new job opportunities as government censors, so notch up another win for creating unproductive jobs.
Think of the children!
Of course, the usual justification for such draconian censorship is to protect children. However, these regulations will not achieve that, at all.
The regulations define a detailed procedure to be followed should any content submitted for classification be found to contain child pornography, including reporting the applicant to the police.
Now I don’t know any child pornographers, but I would expect that your average maker of highly illegal material is not going to ask the government for permission to publish it.
They will also not publish it on any major content platform such as Facebook or Twitter. If they do, they won’t last long, with or without the FPB’s intervention. Nor will they publish it on an ordinary website, whose ownership can easily be traced. After all, child pornography is already illegal.
Wherever these criminals associate, the new process for classifying content will not touch them. And those who wish to view child pornography will have to know where to go to evade the law, and it isn’t YouTube, or any platform that is easily accessible to censors and law enforcement. You don’t just accidentally stumble upon it.
Nor will these regulations protect children from viewing content that the government, in loco parentis, has decided might offend their delicate sensibilities. Just because an online video must now carry an FPB stamp with an age restriction doesn’t prevent anyone from viewing it.
Keeping children away from potentially harmful content has always been, and will remain, the responsibility of parents. They will still be required to implement parental controls on devices to which their children have access, as they always have. These controls will not be based on FPB classifications, but on software that filters potentially offensive web addresses or controls offered by major content platforms.
Any child that could access dubious content before these regulations will still be able to access such content after their implementation. The regulations will benefit nobody, in any way.
Nobody benefits, except government
Except the government. The censorship regulations will benefit the government.
No longer will uppity nobodies who style themselves ‘citizen-journalists’ be able to discuss current affairs without permission.
Since almost everyone who has an online presence will end up falling foul of these vague and over-broad regulations, they also offer a way to exact revenge upon traitors who dare to criticise the ruling party.
If publishing something without permission can incur a R150 000 fine or eight months in prison, and every single tweet sent without permission will constitute a separate offence, it will be trivial to slap enemies of the government with penalties amounting to millions, or with years in a political prison. This law and these regulations are wide open to abuse.
Even the Apartheid government, which liberally censored music, films and publications, did not expect to prohibit literally all content produced by individuals without government consent. The ANC is now doing so, as if we needed more reason to vote them out of power at the earliest possible opportunity.
As soon as these regulations come into force, let’s have a mass disobedience campaign. I’d love to see the FPB go after tens of thousands of people for posting risqué pictures without asking permission first.
