Tomorrow the Portfolio Committee on Communications begins deliberations on the Films and Publications (FPB) Amendment Bill, the Internet Censorship Bill.

This Bill, tabled in Parliament in November last year is, quite simply, bad news.

In its current form, it gives government wide-sweeping powers to censor content on the Internet; is unworkable, unaffordable, vague and contains several unconstitutional provisions.

The DA is not alone in its concerns.

During Public Hearings earlier this month, major industry players such as MultiChoice, eNCA, eTV, Right2Know, Media Monitoring Africa, the SOS Coalition, the South African National Editors Forum, the National Association of Broadcasters, Google and the South African Broadcasting Corporation (SABC) all made submissions to the Communications Committee opposing many of the Bill’s proposed provisions.

It must be noted that there are some provisions in the Bill that are to be welcomed:

• The DA is pleased that in line with the Constitutional Court’s order in De Reuck v Director of Public Prosecutions, the definition of what constitutes child pornography, for the purposes of sexual arousal, has been tightened;
• We are also pleased the Bill seeks to outlaw revenge porn. Revenge porn has become a major problem, affecting mostly women, and we welcome the intention to prohibit it.

Save for these two proposed amendments, the rest of the Bill must be thrown out.

It is clear that the FPB, and indeed the Minister of Communications did not apply their minds sufficiently to the Bill before it was tabled in Parliament.

We therefore support and welcome the SABC’s call for a Regulatory Impact Assessment, which will provide more clarity on the proportionality of the proposed amendments in relation to the challenges the Bill aims to address. This should happen before the Bill is passed.

There are several problematic provisions in the Bill, which can be grouped into three:

1. Constitutional concerns:

The Bill contains several unconstitutional provisions.

• In section 18(8), the Bill states that ICASA may not issue or renew any broadcasting licence to a broadcaster who also streams content through the Internet, unless such broadcaster is also registered with the Board. If passed, this would mean that the FPB would, in contravention of the Constitution, overstep its mandate and infringe on the powers of a Chapter 9 institution, ICASA. The FPB cannot instruct ICASA when it may or may not issue or renew a broadcasting license, a determination that may be made only by ICASA in terms of section 192 of the Constitution, as was pointed out by Multichoice during the Public Hearings.
• The Bill is also unconstitutional in that it seeks to impose the pre-classification of content distributed online. Section 18(5) states that no digital film may be distributed unless it has been classified by the FPB. This amounts to pre-classification and is in direct contravention of the order of the Constitutional Court in Print Media South Africa v Minister of Home Affairs 2012. The court found that prior classification of content amounts to an unreasonable limitation to the right to freedom of expression. The government was instructed to amend the Films and Publications Act to ensure compliance with the Constitution, yet the proposed Bill does the exact opposite of what the court ordered.
• The Bill also infringes on the constitutional right to privacy. Section 24(3) states that any person who distributes a film or game classified as “X18” online must keep a register of all instances where access was granted to a user, whose name, address and verifiable age must be noted in the register kept for that purpose. The CEO of the FPB will have the right to access this list. This is an unjustifiable breach of the right to privacy. Section 14(d) of the Constitution affords the right to privacy, which includes the right to not have your private communications infringed. If the CEO is able to access a register of all the people that have accessed a site in the past year, the right to privacy of many may be infringed upon. There should be stricter conditions.

2. Use of vague and broad terminology:

• throughout the Bill, vague and broad terminology is used. Many of the submissions during Public Hearings complained of this. As an example, the definition of “digital film” in section 1 is “any sequence of visual images recorded in such a manner that by using such recording, such images will be capable of being seen as a moving picture, and includes any picture intended for exhibition through the Internet or any other electronic medium or device”.

This is broad enough to include all digital videos, and films including user-generated video material such as videos uploaded on social media channels such as YouTube, Facebook, Twitter and Instagram. This means that every single person with a social media account in South Africa would have to register with the FPB as a distributor, and pay the requisite fee for pre-classification. This is quite learly unworkable.

3. Ministerial powers:

• Section 5 of the Bill gives the Minister the power to appoint the Penalty Committee in consultation with Cabinet.  The Penalty Committee will have, amongst other powers, the right to impose fines of up to R150 000 and refer cases for prosecution for contraventions of the FPB Act. A body with such powers should be appointed in consultation with Parliament, and not the Minister and Cabinet to prevent a situation where the Penalty Committee becomes a political hit-squad. Moreover, we do not believe that it is up the FPB to impose criminal sanctions, as it is largely an administrative body. Matters of law enforcement and criminal penalties should be left to the SAPS, the NPA and the courts.
• When the Bill is read alongside the Films and Publications Board’s Online Regulation Policy, it becomes clear that there is a strong desire to control the content that South Africans access and distribute online.

The combination of the Online Regulation Policy and the Films and Publications Amendment Bill provides the Films and Publications Board wide powers that amount to nothing short of censorship.

This Bill is a thinly-veiled attempt at internet censorship, disguised as the protection of children against exposure to pornography, as observed recently in many less-than-democratic jurisdictions.

The proposals in the Bill prove that the Department of Communications does not quite comprehend the exact nature of the Internet and online interactions. It also proves that, regardless of their ignorance, the government is trying to censor freedom of speech.

Freedom of the press is a fundamental characteristic of a well-functioning and healthy constitutional democracy.

Under Minister Faith Muthambi, the South African press has been under constant attack from the ANC-controlled government. The continued clampdown on freedom of the press shows no signs of abating, as can be witnessed through recent decisions made by the Department of Communications, no doubt due to the influence exerted by Luthuli House.

The legislation currently being pushed through Parliament is unacceptable. The DA will do everything possible through our engagement in the process of legislation to ensure that the bill does not pass in its current form.