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By Carla Collett, Partner & Cindy Leibowitz, Knowledge Partner at Webber Wentzel

The Films and Publications Amendment Act, 2019 (Amendment Act) became operational on 1 March 2022. The Amendment Act is important because it was introduced to address some of the very real dangers lurking in the online environment; and because almost every person and business in South Africa has a digital presence, it is applicable to almost everyone.

The preamble of the Amendment Act states that the amendments will "regulate online distribution of films and games" and extend the "compliance and monitoring functions of the Film and Publication Board (FPB) to online distributors", amongst other things.

The Council is tasked with determining the seat of the FPB and its CEO and members. Whilst the Films and Publications Act, 1996 (Act) requires the FPB to be independent and impartial, the Council is appointed by the Minister of Communications and Digital Technologies. Commentators argue that this is a factor which may impact the independence of the FPB.

Some of the key changes to be aware of introduced by the Amendment Act include:

• Aligning the Act to the digital environment. Various definitions have been amended or introduced to extend the scope of the Act to content displayed on the internet or social media. For example, the definition of "publication" has been amended to include content published using the internet and new definitions have been included for terms such as "social media" and "streaming".
• Non-commercial online distributors. The Act introduces the term "non-commercial online distributor", being any person that distributes (or enables the distribution of) content using the internet, for personal or private purposes.  An ordinary person posting content on social media for personal reasons will be caught by this definition. Anyone can complain to the FPB that such person offered services online and the content being offered is unclassified or prohibited (or potentially prohibited). The FPB may require the person in question to take-down the content.
• Enforcement Committee. The Amendment Act creates a new committee, the "Enforcement Committee", to investigate cases of non-compliance referred to it by the FPB. If the committee finds that a person has not complied with the Act, it is not a criminal offence, but the committee must refer the matter to the National Director of Public Prosecutions.
• Functions of the FPB & compliance officers. The functions of the FPB have been extended to include, for example, accrediting commercial online distributors’ classification systems and hearing complaints against prohibited content. Compliance officers are given various search and seizure powers, including to enter a premises, with the SAPS, where games or films are being sold, hired out or exhibited or stored. Although compliance officers' powers are fairly wide, this is pared back by the requirement for a person in charge of the premises to consent to the search and seizure.
• Obligations imposed on internet service providers. An internet service provider must disclose the identity of a person who publishes: (i) prohibited content; (ii) a private sexual photograph or film; or (iii) a film or photograph depicting sexual assault and violence against children. This raises some complex privacy issues, particularly under the Protection of Personal Information Act, 2013.

Although the intention behind the Amendment Act is laudable, it will only be successful if it can address the online dangers without threatening the hard fought for and won right to freedom speech.