Following recent remarks by South Africa's Deputy Home Affairs Minister Malusi Gigaba expressing interest in a law to ban porn
from being transmitted on the internet, cell phones and television, Arthur Goldstuck, MD of World Wide Worx has warned the government against the idea, saying it is futile, will only cost the country a lot of money to enforce and could make the
country a global pariah in terms of corporate investment.
It's not possible to ban internet porn unless government becomes a nanny state over what everyone does over the Internet, said Goldstuck. It would require enormous resources from internet providers and extensive resources from
Home Affairs Minister Gigaba said that he also wants South Africa to not only join the global fight against the spread of child pornography, but also to work to protect children in general from porn in the mass media.
We are still awaiting the report of the Law Reform Commission on our request for advice on the possibility to prohibit pornography in the mass media, public broadcasters as well as internet and mobile phones, he said in a speech in
Parliament, adding, We are determined that we should have legislation ... to protect our children. Those who want to view pornography must do so in the privacy of well-regulated adult shops.
South Africa wants to censor the internet from pornography .
According to the South African government in a statement from The Deputy Minister of Home Affairs Malusi Gigaba: The Internet and Cellphone Pornography Bill proposes that pornography be filtered out at the tier one service providers to avoid
it entering the country. The Bill is aimed at the total ban of pornography on internet and mobile phones. United Arab Emirates and Yemen already have legislation in this regard. Australia and New Zealand are currently seeking to do so.
Malusi Gigaba met with Justice Alliance of South Africa that was represented by Advocate Johan Smyth and Brendan Studti. The meeting was part of the ongoing work to draft the bill and to get legal opinion on constitutional issues related to the
Internet and Cellphone Pornography Bill.
Current legislation in South Africa already bans child pornography but the proposed bill iwill ban all pornography entirely from computers and cellphones through the internet.
Malusi Gigaba said that Cars are already provided with brakes and seatbelts, it is not an extra that consumers have to pay for. There is no reason why the internet should be provided without the necessary restrictive mechanisms built into it.
The South Africa Law Reform Commission (LRC) is conducting research to determine how the South African Pornographic Bill should be
implemented, a process that could take up to 18 months.
Bayanda Mzoneli, media and parliamentary liaison officer for the Department of Home Affairs, says the deputy minister Malusi Gigaba requested guidance from the LRC in September 2009 on how best to ensure that TV, mobile phones, and the Internet can be
included in the classification dispensation to protect children.
Mzoneli explains that the Justice Alliance of South Africa (Jasa) went so far as to draft the South African Pornographic Bill out of its own initiative, to contribute to the process. He notes the current draft Bill is not an official draft Bill of
government, and the deputy minister is officially waiting for advice from the LRC .
Mzoneli says the advice of the LRC would be to determine whether the inclusion should take the format of legislation, regulation, self-regulation or otherwise.
He adds that the Bill is currently open for public debate, and that IT professionals have not been forthcoming in providing insight into the technological barriers surrounding the implementation of the Bill.
Hopefully the public discussion will help guide the Bill, but ultimately it is up to the LRC to decide how the Bill will be implemented, he says.
South Africa's department of Home affairs has backed down on a total ban of internet porn websites.
The department met with the Film and Publications Board, the Internet Service Providers' Association (Ispa), the department of communications, the Independent Communications Authority of SA and the Wireless Application Service Providers'
Association (Waspa), in an attempt to find middle ground with regards to protecting children from Internet-based pornography.
In July deputy minister Malusi Gigaba said he would fast-track legislation to ban porn on SA computer screens.
Many in industry were concerned that the document drafted by the Justice Alliance would be used as a basis for the proposed legislation. The document proposed harsh penalties for Internet service providers that carried porn on their networks.
However, Dominic Cull, Ispa regulatory advisor and owner of Ellipsis Regulatory Solutions, says Gigaba agreed at the meeting that legislative action to prevent online pornography should be a last resort for the department.
Cull says Ispa, Waspa and government authorities will begin looking at other ways to protect children from porn on the Internet. Cull says education and marketing was suggested as one possible approach. Providers could also implement voluntary
filtering on certain websites if they wanted to.
All the representatives at the meeting decided to put together task teams to investigate alternatives to a blanket ban on Internet porn, Cull says.
South Africa's Film and Publications Board (FPB) is expecting to be granted the power to order an
administrator of any online platform to take down any content that the Board may deem to be potentially harmful and disturbing to children of certain ages.
The censors have generated a 14-page set of draft rules for online content that would, in theory, have given it the power to order Wikipedia et al to remove images, and then send them an invoice for the cost of doing so.
For Video on Demand services, the board has proposed co-cesnorship, which will allow each streaming provider to classify its own content with an in-house team of people after they are trained, for no more than five days, by the FPB.
By June 2016, everything such streaming providers make available to South African audiences must be rated. That may prove a challenge for in-house teams too, so the FPB draft regulations make another concession -- content classified under another system
can be deemed classified by the FPB, if the regimes are sufficiently similar. In practice, a 13 (language) or 16 (nudity) classification imposed by regulators in the US or Europe will be accepted for South African use.
The censors look set to become very nasty about what the board describes as self-generated content. This, the draft rules say, could include a drawing, picture, illustration or painting; recording or any other message or communication, including a
visual presentation, placed on any distribution network including, but not confined to, the internet .
Streaming services will be responsible for their own classification expenses, and those who distribute self-generated content can expect an invoice from the FPB once it has decided to classify such content of its own accord. So it appears that
finding harmful content is the driver behind an expected eight-fold increase in the money the FPB says it will need to police the online space.
This week the department of communications, under which the FPB falls, published its budget forecasts. In the last financial year, the budget shows, the FPB spent under R1-million for online and mobile content regulation . By 2016 that is expected
to increase to R8.2-million.
The department of state security is expected to release, within weeks, a first draft of the Cybercrimes and Related Matters Bill. That law is being drafted behind closed doors, but is understood to be a clear victory for the state security department
over the department of telecommunications and the department of communications.
Only once in a while does an Internet censorship law or regulation come along that is so audacious in its
scope, so misguided in its premises, and so poorly thought out in its execution, that you have to check your calendar to make sure April 1 hasn't come around again. The
Draft Online Regulation Policy
recently issued by the Film and Publication Board (FPB) of South Africa is such a regulation. It's as if the fabled prude Mrs. Grundy had been brought forward from the 18 th century, stumbled across hustler.com on her first excursion online, and promptly
cobbled together a law to shut the Internet down. Yes, it's that bad.
First, the regulation applies, in the first instance, to films and games (regardless of subject matter), as well as to publications containing certain loosely-described forms of sex, violence and hate speech. As to these types of content:
5.1.1 Any person who intends to distribute any film, game, or certain publication in the Republic of South Africa shall first comply with section 18(1) of the Act by applying, in the prescribed manner, for registration as film or game and publications
5.1.2 In the event that such film, game or publication is in a digital form or format intended for distribution online using the internet or other mobile platforms, the distributor may bring an application to the Board for the conclusion of an online
distribution agreement, in terms of which the distributor, upon payment of the fee prescribed from time to time by the Minister of DOC as the Executive Authority, may classify its online content on behalf of the Board, using the Board's classification
Guidelines and the Act ...
If you are a video blogger creating films from your basement, the prospect of FPB officers knocking on your door to classify your videos probably isn't that appealing. So, being the forward-thinkers that they are, without actually providing an exception
for user-generated content (or a sensible definition of it), the FPB provides an alternative system which places the burden of classifying such content onto Internet intermediaries:
7.5 In the event that such content is a video clip on YouTube or any other global digital media platform, the Board may of its own accord refer such video clip to the Classification Committee of the Board for classification.
7.7 Upon classification, the Board shall dispatch a copy of the classification decision and an invoice payable by the online distributor within 30 days, in respect of the classification of the content in question.
A few definitions are in order here: an "online distributor" could be a South African ISP, which might have no connection with the "global digital media platform" that actually hosts the content. Nonetheless, the ISP is assumed to
have the capacity to take down the original video, and to upload a new, classified, version containing the FPB's logo:
7.10 The online distributor shall, from the date of being notified by the Board in writing of the classification decision, take down the unclassified video clip, substitute the same with the one that has been classified by the Board, and display the Film
and Publication Board Logo and classification decision as illustrated in clause 5.1.6.
Oh, but it gets worse. Since classification rules already apply to offline films, games and proscribed publications, the regulation purports to be doing nothing more than to be extending the classification scheme to online versions of those materials, so
that anyone distributing them over the Internet also has to obtain a license to do so. But then there's this:
7.4 With regard to any other content distributed online, the Board shall have the power to order an administrator of any online platform to take down any content that the Board may deem to be potentially harmful and disturbing to children of certain
That's right, any online platform can be ordered to take down any content distributed online that the Board may deem to be potentially harmful and disturbing . Traditional publishers are subject to no such sweeping, extrajudicial censorship power.
South Africa is one of Africa's largest and fastest growing economies, and for it to adopt such an extreme preemptive Internet censorship regulation would be a serious setback for South Africa's burgeoning online industry, as well as, needless to say, a
serious blow to human rights. If you are South African, or have any friends or colleagues who are, please take action
by signing the Right to Know petition, and spreading the word about this looming threat.
Mobile operators and ISPs could have their licences revoked if they fail to comply with new censorship
legislation being developed to govern online content in South Africa.
In a statement, the cabinet said it had approved the submission of the Films and Publications Amendment Bill to parliament. The amendments to the Films and Publications Act of 1996 provide for:
Technological advances, especially online and social media platforms, in order to protect children from being exposed to disturbing and harmful media content in all platforms, physical and online.
Of particular concern to ISPs and telecommunications providers will be the cabinet's declaration that the companies must:
Protect the public and children during usage of their services and Icasa will not issue licences or renewals without confirmation from the Film and Publication Board (FPB) of full compliance with its legislation.
The online regulation policy proposed by government will require all individuals and organisations who upload digital content to first register with the FPB, pay a fee prescribed by the minister of communications, and either submit the content to the
board for classification or self-classify in accordance with the board's classification guidelines.
Anyone who does not comply with the policy is liable to pay a fine or face a prison term of up to six months.
If the Films and Publications Amendment Bill is passed in its current form, South Africans may no longer upload videos to online channels, such as
YouTube, Facebook, Twitter and Instagram -- unless they register as a distributor and pay a censorship registration fee.
A spokesperson from the Democratic Alliance party, Phumzile van Damme, said that government is increasingly overplaying its hand with regard to freedom of speech:
There seems to be a firm hand in a broader project of censorship that is very worrying.The 'Internet Censorship Bill' in its current form gives government wide-sweeping powers to censor content on the internet.
The bill seeks to restrict the distribution of digital films in that such content needs to be pre-classified by the Films and Publications Board. The terminology used in this provision is broad enough to include all digital videos and
films, also user-generated video materia uploaded to social media platforms.
A section in the bill states that any person who distributes a film or game classified as X18 must keep a register when access to the content is granted to a user. The user's name, address and age will be captured in the register and the CEO of
the Films and Publications Board will have access to this register.
Van Damme commented:
This is an unjustifiable breach of the right to privacy, which includes the right to not have your private communications infringed.
Meanwhile as the bill is being discussed in parliament, South Africa's film censors have demand that
Google censor seraches for adult material.
The Film and Publication Board has stated it is unacceptable for people to be able to access pornography with a Google search. The FPB made the statement during a parliamentary hearing into submissions on what has been called its Internet
censorship bill. Lawyer Nicholas Hall quoted the FPB during the IESA's submissions on the FPB Amendment Bill.
FPB: It is unacceptable that you can type in Pornography and get access to porn, Google needs to take steps to address this
South Afric's Film and Publications Amendment Bill will apply traditional pre-vetting style censorship t everything posted on the internet in
The National Assembly has approved the bill in a vote of 189 in favour, with 35 against and no abstentions. The bill must now come before the National Council of Provinces for its approval before it can be sent to President Cyril Ramaphosa to be
signed into law.
Opposition parties say the Film and Publications Amendment Bill amounts to censorship - and may be unconstitutional. The Inkatha Freedom Party's Liezl van der Merwe said:
This bill through the Films and Publications Board, seeks to take wholesale control of the internet. Among some of the provisions, this bill requires everyone who generates some type of revenue from distributing content online to register, pay a
fee and have their content approved and classified before they can post it.
The party's Mbuyiseni Ndlozi says the red berets are prepared to challenge it in the Constitutional Court if necessary.
Speaking to BusinessTech, legal expert and long time opponent of the bill, Nicholas Hall, explained some of the details of the censorship provisions. Hall said that the FPB now has the power to classify and potentially ban films, games and 'other
Other publications are defined as:
Any newspaper, book, periodical, pamphlet, poster or other printed matter;
Any writing or typescript which has in any manner been duplicated;
Any drawing, picture, illustration or painting;
Any print, photograph, engraving or lithograph;
Any record, magnetic tape, soundtrack or any other object in or on which sound has been recorded for reproduction;
Computer software which is not a film;
The cover or packaging of a film;
Any figure, carving, statue or model; and
Any message or communication, including a visual presentation, placed on any distributed network including, but not confined to, the internet.
Hall said that YouTubers and streamers are most likely to be affected by the new laws:
While the amendment bill will give the FPB the power to potentially classify any content uploaded online, including private communications, they generally will only have this power if someone complains to them about the specific content.
Films and games are treated differently, however. Under the bill, a distinction is made between 'commercial distributors' and 'non-commercial distributors'. Non-commercial distributors of films and games are treated much like the creators of
'other publications', their content can only be classified if someone complains.
However, commercial distributors are required to have their content classified prior to distribution or face criminal prosecution.
Hall added that this distinction was particularly problematic as it is unclear what is defined as a 'commercial purpose', and that this could be as simple as enabling advertising on uploaded videos.
All content platforms (Youtube, Netflix, Steam etc) will now also be required to register as distributors and pay an annual fee, based on the number titles they have in their library.
The other concern is that they have built in provisions to allow them to enforce this system, one of which is to force ISPs (eg Telkom, Mweb, and Afrihost) to block access to content platforms that do not comply.