What the FPA Regulations mean for churches

by Daniela Ellerbeck
14 September 2022

Introduction:
The updated Regulations to the Films and Publications Act, 1996 (as updated by the Films and Publications Amendment Act, 2019) were gazetted by the Minister on Friday, 2 September 2022.  In this article, we break down what these regulations mean for religious organisations.

Who is regulated:
Non-commercial distributors are not regulated. The updated Act and Regulations only focus on regulating commercial distributors. However, this raises the question of who will be seen as a commercial distributor?  The Act defines “distributor” as a person who conducts the business of distributing films, games or publications and includes a “commercial online distributor”.  

Whether religious organisations would be seen as “commercial online distributor” for purposes of the Act for sharing e.g. video sermons on the internet, was a question and concern that FOR SA raised numerous times with the Films and Publications Board (“FPB”).

The new Regulations now insert a definition of “commercial purposes”. This change, when read together with the definition of “commercial online distributor”, results in religious organisations only being seen as commercial online distributors when money changes hands. In other words, any money charged, or advertising revenue received for a video or publication will result in a religious organisation being seen as a commercial online distributor.

For example:
When a church charges a fee for access to the online recording of a sermon, this will be seen as a “commercial online distributor”.  It will then need to register with the FPB as such and will need to classify its content.

When a church receives advertising revenue for access to its online content, it will also be seen as a “commercial online distributor” and be required to register with the FPB to classify its content.

When a church sells (at cost) a DVD of a sermon, it will also be seen as a distributor and will need to register with the FPB as such and will need to classify its content.

Unnecessary to classify YouTube content:
Although not mentioned in the Act or Regulations, the FPB has advised FOR SA that, due to Google automatically self-classifying YouTube content, there is no need for the church to register with the FPB as a distributor and to classify its video sermons on its YouTube channel.

This is the case even if advertising revenue is received from YouTube (i.e. causing the church to be seen as a commercial online distributor).

Exemption:
Should a church host video content from which it derives money (e.g., by either charging for access to it or via advertising revenue) on another platform – such as its own platform / website – the church is a commercial online distributor that needs to register with the FPB.

However, section 22 of the Act (for which there is of yet no regulation), allows for a church to apply to the FPB to be exempted from the consequences (in terms of section 24A of the Act) of not registering as a distributor and from distributing unclassified content.

Publications v Films:
Publications (e.g. articles on a church’s website) are not subject to pre-distribution classification – i.e. they are only classified if/when someone asks for a publication or article to be classified.

However, films (e.g. video sermons) are subject to pre-distribution classification.

Who pays:
The tariff fee for asking that a publication (e.g. article) be classified by the FPB is born by the person requesting such classification.

The tariff fee for a complaint about, e.g. hate speech under Regulation 31, is borne by the distributor.

Conclusion:
Although much remains unclear, the FPB is aiming to publish a policy soonest (hopefully by 31 March 2023) that will bring greater clarity.

In terms of the updated Act and Regulations, FOR SA views them as successfully allowing religious organisations, such as churches, to share their religious content online without being unnecessarily unduly burdened (administratively and financially).

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Daniela Ellerbeck

Daniela Ellerbeck is an attorney of the High Court of South Africa. She serves as FOR SA’s Legal Advisor and Parliamentary Liaison. For her full bio, see https://forsa.org.za/about-us/our-team/

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