By Adv Nadene Badenhorst, FOR SA Legal Counsel

The Minister of Communications and Digital Technologies recently published the draft Films and Publications Amendment Regulations, 2020 for public comment.

Various organisations have expressed concern that the Regulations give Government a dangerous amount of control over the kind of content that can be published online. With regard to religious content in particular, a social media message is doing the rounds stating that “No person or organisation’s will have the right anymore to make a video or broadcast any recordings or live broadcast without being licensed. Ministries no longer be able to broadcast their services or recordings. You will not be allowed to share videos on your devices”.

But is this correct? No, not quite.

As explained later in this article (under the heading “THE IMPACT ON CHURCHES AND OTHER RELIGIOUS ORGANISATIONS”), it is only “commercial content”, i.e. content deriving revenue for the individual / organisation, that is being regulated – not “non-commercial content”. An individual or church who publishes content (including a recorded sermon, live broadcast or any other video) on the internet or sends content via Whatsapp etc, does therefore not need to register with the Film and Publication Board (FPB) as a “distributor” or submit the content for classification – unless people pay to view or receive the content.

THE (AMENDED) FILMS AND PUBLICATIONS ACT

The draft Regulations follow the adoption of an amended Films and Publications Act (commonly referred to as the “Internet Censorship Bill”) last year. Even though the President signed this Act into law in October 2019 already, it has not yet come into operation (and will only come into operation on a date to be proclaimed in the Government Gazette).

In this regard, the FPB has advised that the amended Act can only come into operation once the Regulations to the Act have been finalised. Practically, this means we are still some time away from both the Act and the Regulations coming into operation.

The Films and Publications Act of 1996, amongst other things, makes it compulsory for any person who “distributes, broadcasts or exhibits any film or game” to:

a) register with the FPB as a “distributor” or “exhibitor”; and

b) submit for examination and classification any film or game prior to publication.

The recent amendments to the Act were made, largely, to reflect and regulate the growing use and distribution of commercial content via the internet (“online content”).  So, for example:

  • In terms of the original Act, “distribute” in relation to a film or publication, meant “to sell, hire out or offer or keep for sale or hire”, and a “distributor” meant “a person who conducts business in the selling, hiring out or exhibition of films”. [Own emphasis.]
  • The amendments to the Act broaden the definition of “distribute” however to include “to stream content through the internet, social media or other electronic mediums” and “to sell, hire out or offer or keep for sale or hire, including using the internet” to do so. Likewise, a “distributor” is “a person who conducts the business of distributing films, games or publications which are distributed for commercial purposes using the internet”. [Own emphasis.] (“Commercial purposes” has not been defined in the amended Act, however.)

In terms of the amended Act, therefore, it appears that persons / organisations who stream content through the internet, social media or electronic mediums and who derive any form of revenue from doing so, are obliged to register as a “distributor” with, and also to submit the content for classification to, the FPB. In other words, it is only “commercial content” that is regulated – not “non-commercial content”, which the amended Act defines as content distributed “for personal or private purposes”.  

This interpretation of the amended Act (which, granted, is not that easy to follow or understand and calls for different provisions and definitions to be read together to make sense of what the Act is actually saying) is consistent with the FPB’s online content regulation policy, and also what the FPB has personally conveyed to FOR SA during our various meetings with them.

As already said, these amendments to the Act have now been adopted and signed into law. Whether or not we like it or agree with it, is now water under the bridge. It is just a matter of time before they will be effective in law and will need to be complied with.

THE DRAFT REGULATIONS

What the draft Regulations (are supposed to) do, is to state how the provisions of the Act are to be practically implemented or applied. For example, how one should go about applying for registration as a “distributor”, or for classification of content. Strictly speaking, therefore, the Regulations should therefore not make “new law” (that can only be done by Parliament, through legislation) – it can only stipulate implementation detail.

When read in isolation (i.e. without reading the Regulations with the amended Act), we can see how the Regulations can give the impression that online content in a broad sense (including both “commercial” and “non-commercial content”) is going to be regulated. On our reading of the Regulations together with the amended Act (and our interactions with the FPB) however, this is not the case.  

THE IMPACT ON CHURCHES AND OTHER RELIGIOUS ORGANISATIONS

The next question is, what does this mean for churches and other religious organisations? In particular, is there a legal obligation on churches and other religious organisations to register as a “distributor” of content through the internet, and to submit the content to be distributed through the internet, to the FPB?

FOR SA has been engaging with the FPB in this regard since 2017, and continues to do so. In fact, our very submission on the draft Regulations (submitted this month and available here) states that the Regulations present the perfect opportunity to bring the necessary clarity in this regard. What we have been advised by the FPB to date, however, is as follows:

  • The FPB does not regulate “non-commercial content” (i.e. short videos of an explanatory and informational, or marketing and promotional, nature; or User Generated Content (UGC) e.g. YouTube videos, Whatsapp videos and the like). (According to the FPB, “non-commercial content” will only be investigated if a complaint is laid / the content is red-flagged with the FPB because, for example, it contains violence).
  • What is regulated, however, is “commercial content”, which the FPB interprets as “packaged / finished” content (whether online or on DVD etc). It would thus seem that “commercial content” would include the selling of DVDs of sermons by religious organisations, even if these were simply sold at cost.
  • The net effect is that if a religious organisation is distributing “commercial content”, they would have to apply as a “distributor”. (We were further advised that the application for “distribution” is per congregation / campus, because each campus is treated as a stand-alone entity by the FPB. Further, the organisation’s registration as a “distributor” is valid for one (1) year, after which it is renewable.)

More specifically, the FPB this month advised FOR SA in writing that where “churches are uploading sermons as videos to their websites directly, without charging any fee to access same, there would not be a requirement for the churches to register with the FPB and submit the said sermons for classification. (The implication is that where churches do charge a fee to access sermons, or sell any material that they are distributing through their website or otherwise, they will have to register with the FPB and either apply for classification of the content, or exemption from classification).

WHAT CAN / SHOULD RELIGIOUS ORGANISATIONS DO?

The deadline for submissions on the draft Regulations, is now closed. FOR SA has however asked the Minister to re-open the Regulations for public comment and give an extension so everyone can have a chance to participate.  If and when it is re-opened, FOR SA will advertise same on our website and we encourage religious organisations to make submissions on the draft Films and Publications Amendment Regulations, to the Film and Publications Board (FPB).

In particular, the submissions should encourage the FPB to provide clarity with regard to religious organisations and in particular to:

  • Define “commercial content” in the definition section, so as to expressly exclude religious content (irrespective of the format, and irrespective of where it is hosted online);
  • Define “non-commercial online distributors” to include religious organisations;  and
  • Exclude religious sermons from the definition of “films”.

FOR SA will keep engaging with the FPB, and also keep an eye on any developments, in this regard to make sure that our religious rights – including our right to freedom of religious expression on the internet or otherwise – remain protected.

Nadene is an Advocate, and practised as a member of the Cape Bar for a number of years. She holds both a BA LLB degree from the University of Stellenbosch and a LLM degree in International Human Rights Law (cum laude) from the University of Essex. She currently serves as a Next Generation Board Member on the Advocates Africa Board, representing Southern Africa.



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