South African Draft Online Regulation Bill Poses Censorship Threat
A proposed policy to regulate online content in South Africa is poised to return the country to a worrisome state of severely curtailed free expression. The Draft Online Regulation Policy proposed by the Film and Publication Board (FPB) of South Africa is far-reaching and absolute in its censorship, potentially setting South Africa back by decades on issues of free expression, as well as putting the country on par with some of the world’s worst offenders—like Iran and China—in terms of restrictive legal environments for online speech. But there is still time to mount a strong and coordinated effort to prevent this travesty from taking root.
The Draft Online Regulation Policy, introduced by the FPB to regulate commercial content like films and games published online, is a purported attempt to protect children from offensive and illegal content, including child pornography, hate speech, racism, and extreme violence. But the online content covered by this policy would extend beyond that produced by commercial film and game publishers to include content created by individuals who publish game code, post YouTube videos, and ostensibly even those who post content on social media.
The FPB has traditionally been the body responsible for putting age restrictions and content warnings on movies and TV programs, similar to the Motion Picture Association of America, with the important distinction that it is a statutory body rather than a voluntary, self-regulated one. Citing “media convergence,” the FPB has begun to expand its mandate and its purview of censorship to cover the internet. Some media activists have suggested that it is this uncertainty of its role in the age of the internet, coupled with growing internet usage in South Africa, that has resulted in such a restrictive policy proposal.
In its current form, the policy would require that all “commercial content” be approved and classified (given a rating) by the agency prior to publication; that all publishers of content register with the agency and pay a publishing fee prior to publishing; that internet service providers (ISPs) and other digital platforms obey its jurisdiction and respond to its takedown requests; and that financial and other penalties be imposed for those who do not comply. The scope of this proposed policy calls into question the capacity of the FPB and threatens to contribute to both active and passive censorship that could significantly restrict freedom of expression in South Africa.
While the FPB has stated that its intent is simply to extend the offline film and game classification system to an online medium, the policy also states: “With regard to any other content distributed online, the Board shall have the power to order an administrator of any online platform to take down any content that the Board may deem to be potentially harmful and disturbing to children of certain ages.”
“An administrator” could refer to any host of online content, including local ISPs, media outlets, and social media platforms, extending far beyond traditional commercial distributors. The FPB also reserves the right to visit the location of any distributor to evaluate the classification of its material and take action in the form of fines or takedown if to be deemed offensive or illegal. Combined with the prospect of fines, this inspection provision is likely to result in self-censorship as well.
The FPB has been sanctioned previoously by a South African court, which ruled in 2012 that a large section of its policies were unconstitutional and that prior restraint of publication “though occasionally necessary in serious cases, is a drastic interference with freedom of speech and should only be ordered where there is a substantial risk of grave injustice.” This new draft policy brazenly disregards the court’s previous ruling.
, journalists, and media outlets in South Africa, such as Right 2 Know, have and have requested support from the international community. The FPB is obligated by section 195 of the South African Constitution to engage in public consultations about this new policy; submissions for public comment remain open to concerned individuals worldwide through July 15.* In addition, opponents of the proposed policy can sign an action letter to the FPB chairman to scrap the policy here.
States that respect freedom of expression understand that governments should play a minimal role in monitoring content prior to publication. Any other scenario is fraught with the danger of censorship—a danger that can be averted by concerted local and international support to voice concern about the issues created by such pervasive new policies.
*Submissions for public comment can be emailed to [email protected] 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.