The Film and Publication Board’s final draft of its Online Regulation Policy retains some problematic elements, but is a significant improvement on its previous version.
This final version, revised with the help of Norton Rose Attorneys, was submitted to the Minister of Communications for approval and publication in the Government Gazette. The policy comprises four sections: online distribution of “television films” and games, user-generated content (UGC), complaints, and self-classification.
The Board intends that the Policy will constitute an effective regulatory framework for the classification of digital content. The Policy also seeks to create a basis for a form of co-regulation between the Board and industry for the classification of digital content distributed on mobile and digital platforms.
The Policy applies to any person who distributes or exhibits online any film or game or publication (excluding newspapers and magazines falling under the Press Council). It is clear in the Policy that any online film or game must be classified prior to distribution. This requires online content distributors to register with the Board to distribute online films and games and pay the “prescribed registration fee for content providers” as determined by the Minister, together with any other fees that the Minister may determine from time to time.
FPB states that all inputs have been considered in the development of the new document. A noticeable improvement is seen in its approach to the large quantity of unclassifiable user-generated content. The Policy refers to UGC as content created by users of online services which enable such content to be uploaded by the user. UGC can be professional or amateur and it is not relevant whether consumers must pay to view the content or not. As most of this content is produced, hosted, and distributed in and from foreign jurisdictions, the FPB does not have the necessary resources to classify it.
It will, however, retain the discretion to regulate “specific instances of UGC” where:
- A publication contains sexual conduct which violates or shows disrespect for the right to human dignity of any person, degrades a person, or constitutes incitement to cause harm; advocates propaganda for war; incites violence; or advocates hatred based on any identifiable group characteristic and that constitutes incitement to cause harm.
- A publication which would be classified XX or Refused Classification (RC).
- A film which would be classified RC, XX, or X18, or which contains a scene which may be disturbing or harmful to, or age-inappropriate for, children.
- A complaint is received.
The FBP will take the target market, accessibility and extent of distribution of the UGC, the “egregious nature” of the content, the potential to cause severe harm, especially to children and specific complaints into account when regulating content.
In response to a complaint or at its own discretion, the FPB is within its rights to:
- Issue the content provider or online distributor with a “classify” notice or a “restrict access” notice.
- Direct the content provider or online distributor to take down offending content.
- Classify content or review the original classification decision.
- Lay criminal charges.
- Block non-compliant online distributors at ISP level
Complaints will follow a structured process. Members of the public must first approach the “content provider responsible for the classification decision,” after which the matter can be escalated to the FPB if not satisfactorily resolved.
In its risk analysis, the FPB acknowledges that lack of buy-in by the industry is a risk to their reputation if they are unable to enforce the policy. In order to mitigate this, they have signed a memorandum of understanding with ICASA to block non-compliant online distributors at the ISP level.