Films and Publications Amendment Bill [B37-2015]: Departmental response to public submissions

Meeting report

Chairperson's opening remarks
The Chairperson noted the apologies of the Minister as well as the Acting Director General of the Department of Communications, Mr Ndivhuho Munzhelele. He then welcomed and introduced a new Member of the Committee, Mr Mondli Gungubele (ANC).

Films and Publications Amendment Bill [B37-2015]: Department of Communications responses to public submissions
Mr Collin Mashile, Chief Director, Department of Communications, said the Department of Communications (DoC or the Department) had welcomed the 32 submissions received on the Films and Publications Amendment Bill (the Bill) from various stakeholders. Some were joint submissions and others had been from concerned organisations and groups as well as non-governmental organisations (NGOs).

He wanted to read two quotations which he felt explained why the Bill was proposed. Mr Andrus Ansip, Vice-President, Digital Single Market, said: “I want to see online platforms (and) sectors to be a powerhouse in the digital economy, not weigh them down with unnecessary rules. They need the certainty of a modern and fair legal environment. That is what we are providing today. This means not changing existing rules that work” but he also went on to say that the rules that did need to be changed had to be done “ to improve user protection and to reach a level-playing field”. Mr Günther Oettinger, Commissioner for the Digital Economy and Society, had stressed that “The way we watch TV or videos may have changed, but our values don’t. With the new rules, we will...make sure incitement to hatred will have no room on video-sharing platforms. We also want to ensure a level-playing field, responsible behaviour, trust and fairness in the online platforms environment…”.
Those quotations emphasised what the DoC had to look into – namely, to isolate any problems with online content, and whether and why government intervention was necessary. The objectives and intended effects of any legislation must be carefully considered.

The DoC had intended to ensure that the responsibility for the Films and Publications Act (the Act) was moved properly from the Minister  of Home Affairs, where responsibility for the legislation previously resided, to the current responsible Minister of Communications. The Department would now need to consider the relevant judgments of the Constitutional Court which had struck down some provisions of the Act. There was a need to create policy and regulatory consistency, certainty and clarity.  The Department had evaluated whether the Act and other legislation was still aligned with the Constitutional values of South Africa.

The current Bill was focussed on protecting children and the vulnerable sectors of society against the most harmful content in the online environment, and was intended to strengthen the existing enforcement and protection mechanisms in the Act. Provisions around self-regulatory frameworks on notice and take down-actions had been developed to ensure that illegal content would be easily removable from websites. Hotlines existed in many countries for victims to report illegal content on the internet and to fight sexual abuse material.
Speaking to the need for the legislation, he explained that some regulatory authorities around the world were providing information on what to do when challenges were isolated, but despite these, many parents were themselves not sufficiently digitally literate to know what to do. There was therefore a need for governments, regulatory authorities and market operators to provide information on available tools and on how to use them. SA and international markets had witnessed gradual shifts in the distribution of content from traditional content distribution platforms (DVDs, VHS and cinema) to online content distribution platforms.

Many of the comments related to the definitions, and the DoC agreed that further investigation was needed to help provide legal certainty and to assist in preventing abuses of the regulations and intention behind the legislation. In principle, there was agreement that the Film and Publication Board (FPB or the Board) would only deal with online or internet content networks and services matters, while the Independent Communications Authority of South Africa (ICASA) would focus only on regulating broadcasting content. The Department would assess the practical, technical and related potential financial costs and social benefits arising from implementing and enforcing the regulatory provisions emanating from the legislation. DoC believed that the cost implication of enforcing the law in line with international trends was expected to be modest, given the small number of online content and service providers. Obligations were to be imposed onto online distributors to register with FPB, and the addressing of harmful and legal online content would carry negligible financial and technical implications. However, this would have a large and positive impact on society, by ensuring the protection for vulnerable groups in the society.

The Bill was correcting provisions in the Act in order to strengthen the current regulatory regime in order to create a reliable policy for consumers, industry and the public. The DoC was of the view that the impact assessment would continue to be an on-going exercise, as the law became better entrenched and enforced. The Cabinet had decided that the law would be implemented from September 2016.  Online video-sharing distributors and the DoC would work together to protect children and the vulnerable from harmful content such as pornography and violence and protect citizens from incitement to hatred. Harmful content would be flagged and reported.

The DoC had also consulted with the Department of Justice and Constitutional Development (DoJ) on the Bill in two meetings. The Board, the Department of Telecommunications and Postal Services and the national authorities, including Internet Service Providers Association (ISPA) and ad hoc members of the South African Law Reform Commission (SALRC) were present because the SALRC was also busy with proposals to revise the laws around child pornography. The meetings recommended that the Films and Publications Act (referred to here as FPA) should not deal with child pornography.  The objectives of the Act were to classify films and productions, to provide for the establishment of the FPB and a Film and Production Tribunal, revoke certain laws and provide for other matters. The Sexual Offences Act (SOA) dealt with criminalisation of child pornography. The DoC had felt that it would be unwise to have the FPA dealing with child pornography, because it did not actually specifically relate to the criminalisation of sex offences. Hitherto, South Africa had been the only country that had dealt with child pornography within a law that classified media (the Act). In order to rectify this, it was proposed rather that section 24B of the FPA now be incorporated in the SOA. The Cybercrimes and Cyber Security Bill would be used to effect that amendment. However, child pornography that was cyber-related had not actually been fully addressed till now in the current section 24B of the FPA.

FPB had commissioned a study in 2015, through UNISA, in order to collect empirical evidence on the experience of South African children and media material, to ensure that the FPB Classification Guidelines categories aligned with the developmental stages of children. That study had indicated that sexual content, horror and violence caused the most observable impact on children between the ages of 7-17. Blasphemy and prejudice were less noticeable in movies, but those children surveyed were found to have been desensitised to violence and bad language in movies. The DoC felt that parents should be providing the necessary guidance for gaming and viewing choices. However, it was accepted that parents played a limited role in monitoring their children’s media exposure. The children were reluctant to express to their parents that they might feel uncomfortable as a result of exposure to unsuitable content. It was also noted that many children also played age inappropriate games containing elements of extreme violence. The impact of games on thoughts and behaviour seemed to be less, however, because these games were animated and thus seen as not real.

DoC encouraged the Committee to ensure that the protection of the children and vulnerable citizens against harmful content was enhanced. This would be done through regulatory and legislative efforts that were all intended to improve on the updated classification enforcement mechanism. South Africa had moved from censorship, so this Bill was not intended to censor, but was intended to classify in line with international trends which were specific and relevant to South African challenges and the South African environment.

Discussion
The Chairperson pointed out that this was a general description of the response from stakeholders but the Committee wished to go into more detail about the specific responses on clauses in the Bill.

Ms P van Damme (DA) expressed her concern that she had not had sufficient time to go through the document recently handed to the Committee.

The Chairperson agreed that this document had only just been received.

Mr Mashile explained that the Department had only finalised the second document, containing the Department's responses to each stakeholder's submission, on the previous day, and apologised that he had not managed to forward it to the Committee earlier. The first document, just presented, had been sent through last Friday.

Mr M Kalako (ANC) thought it was unacceptable that the Minister had not sent in an official apology for not attending the meeting. He also stressed that the Committee should not receive documents late for future meetings.

Mr R Tseli (ANC) agreed with Mr Kalako and strongly felt that late submission of documents should not be allowed again. This document was vital for the meeting. He therefore proposed that the Department must present the detailed submissions at this meeting because the Committee could not proceed to any further deliberations without having that grounding.

Ms Van Damme agreed also that late submissions of documents was completely unacceptable, and she felt that in fact the DoC should not be allowed to continue with the presentation of the second document. The Bill was highly controversial and he personally felt that she would need plenty of time to go through the content. For this reason, any discussions would have to be led by the document. She also pointed out that although there was reference made in the initial presentation that the Bill was to be amended by September 2016, this Committee was separate from Cabinet and was not bound by any decisions of the Cabinet.

Ms S van Schalkwyk (ANC) felt that it was important to give the Department a chance to present the latest document, and postpone discussions by the Committee until the following day.

The Chairperson agreed that it had not been acceptable for the DoC to submit this document at 16:00 on the previous afternoon, and that would be mentioned to the Minister. Any meetings on the following day would have to be prefaced with responses to the questions that the Members might make.

Summary of input by stakeholders
Mr Mashile said he would elaborate on some of the points made earlier. The Regulatory and Social Impact Assessment (RSIA) was a requirement of Cabinet and the information about the Bill being completed by September 2016 actually was referring to that RSIA having been completed by then before the law could be passed.

He summarised general input on the Bill during the public hearings.
 
The Bill would not be changing from dealing with child pornography to child abuse material. The Department wished the word “harm” to be re-defined because the term was used in one of the classification processes – and it was to be re-defined to encompass distress. He reiterated that the main objective was to ensure that FPB could deal with everything that involved online registrations as well as content available online.

The Department had accepted the recommendations made by the Press Council and had incorporated them, based on the decision made by the Constitutional Court. Recommendations submitted by another Board had been made on hate speech. However, it was difficult to enforce these through the Bill, as the focus in the Bill was to ensure that the general public was aware of the legal steps that had to be taken in order to report online hate speech comments. The Department felt that it would be important to regulate online content by allowing the FPB the freedom to investigate matters which were not reported, but that might require other interventions, since the FPB would not currently have the resources and expertise to raise the matter on behalf of the public.

Discussion
Mr Tseli appreciated the Department’s presentation. He also was impressed by the level of interest shown by the stakeholders. However, he had some difficulty in understanding the legal role played by the FPB and the other law enforcement agencies, when dealing with illegal online content and other harmful content. At what point would the Department of Justice and those who handle the criminal law enforcement take over the matters dealt with?

Mr Tseli asked that the Committee be provided with a report of the study conducted on children through UNISA.

Mr Tseli highlighted the concerns raised by stakeholders on the classification system. He asked the Department to reveal how much, in numerical terms, the 90% classification fee subsidy was. He asked the Department to share some of the best practices in other countries as it would help to make an informed decision.

He also highlighted that online distributors would register with FPB which would have financial and technical implications and so he asked that the implications be clearly stated.

Ms W Newhoudt-Druchen (ANC) said that the presentation had gone quite a lot into children, but t she had not seen any of the children’s rights organisations present, whether this was a correct observation and whether they specifically had made any contributions to the discussions which led to the current Law correction process. She asked if the Department had interacted directly with Child Protective Service organisations or entities that dealt with children’s rights other than the UNISA project. She knew that there had been 32 submissions made, but only 18 had managed to make oral presentations, and she wondered if one of those bodies that did not make oral presentations had perhaps been a child rights organisation. She called for further comment on children's rights input.

Ms van Damme was pleased to find that the DoC and FPB were willing to agree on many of the points raised. She felt that the Bill was initially brought to Parliament in a form where many of the points bordered on the unconstitutional, was vague and generally had been problematic. She said that the Manager of Legal and Regulatory Affairs had not provided good legal advice to the FPB before presenting the proposed corrections on the Bill to the Portfolio Committee. The Committee had seen far too many challenges that should have been highlighted and dealt with before bringing the Bill to Parliament. Overall, better legal advice could have been given, and the Bill could have been better drafted. She noted the comment on the RSIA but said that the presentation also mentioned that this could be done while the remainder of the steps were being implemented, but she did not agree; Cabinet said that it had to be done before implementation.

Ms van Damme asked if the DoC agreed with the suggestion of the SABC, which was a reiteration of the point that the RSIA should take place before any implementation of the Bill.

Ms van Schalkwyk thanked the Department. She said that she had done some research on international experience but had not been able to find out what was being done on the Continent, and she wondered if the Department had been able to find out what was happening elsewhere in order to help to assess the viability of the proposals, and how they were regulating. She asked the Department to indicate why classification had to take place through the Bill, if it was already been done by companies such as Sterkinekor or NuMetro, and there had not been any instances reported in the media on any challenges. 

Ms V van Dyk (DA) asked the Department to forward a report with the input from the 32 stakeholders which included each constitutional challenge queried and faced in the past, as well as how the issues would be addressed. The Department had also mentioned that the Bill would be applicable to filming companies and official internet publications. She wondered how the Bill made the distinction between individual users of the internet and official institutions that should be registered with the FPB as distributors.

Mr Kalako was concerned about the cost implications although the Department had highlighted that the costs would be minimal. He asked if there had been any tangible estimation of the amount that companies in the industry would lose from the Bill being implemented. He also addressed the deadline which had been set by Cabinet, agreeing with his colleague that the Portfolio Committee was separate from Cabinet, and had different roles to play so he wanted the Department to explain why reference was made to that Cabinet decision. He asked how the Department would deal with the challenges that society faced on content that included violence and child pornography since children should not be exposed to these things and had to be protected from exposure. He asked for more comment on the public opinion expressed that the Department wanted to invade privacy and dictate what would be suitable for online users, and asked that the comment should specifically refer to examples from the Constitution. He highlighted that the Portfolio Committee would not accept anything that would infringe on the rights of freedom of expression and other forms of freedom that the public was entitled to.

Mr D Kekana (ANC) said that it was important for the Department to listen to all comments, particularly those raised by several stakeholders on whether the Bill was properly aligned with the Constitution. He recommended that the Department should identify all the loopholes and further consult with legal advisers as it seemed that many people had highlighted valid points, and the Department must specifically consider why these points had been highlighted and challenges raised. The main problem seemed to be that the Department had not taken into consideration all points from organisations and individuals about the Bill.

Ms Newhoudt-Druchen said that this presentation merely highlighted the fragmentation in the industry and she asked what strategy the Department had to combat such fragmentation.

Mr Mashile appreciated the comments by each Member and said that the Department and FPB had recognised that it would be hard to deal with online content without the help of the parent’s associations, children's rights groups, law enforcers and South African Police Service (SAPS) as well as the various other organisations that were already involved. The FPB had already started engagements with different entities while putting together an online policy. Children’s organisations had also been a part of the policy-making procedure in Honeydew. He mentioned that the Department had until 25 October to get back to the Committee with the final proposals on the Bill. For this reason, he agreed with Mr Kekana that it would be very wise for the Department to go out again and consult with organisations who had strongly objected to the Bill and to give further consideration to suggestions around the constitutional challenges.

The Department had met with representatives from Kenya. The FPB and the Department would also be engaging with Kenya regularly about the challenges faced in that country. Different Ministers from other countries had also taken resolutions for dealing with classification of online content. South Africa was more advanced and would take the lead in order to address some of the issues discovered with unauthorised online content. The FPB would be working with the other international African law enforcers dealing with the same problem. He felt that the Department of Justice and the law enforcement agencies would have to develop strategies to deal with hate speech, illegal online content and other issues discussed within the SA Law Reform Commission process.

He highlighted that the FPB would do research and deal with classifications while engaging with the relevant people about the Constitution. The FPB would recommend to the Department what action to take moving forward. The Department would provide reports on international based research. The general consensus was that the Department wanted to protect the children under the age of 18. He fully conceded that it would not be easy for the Department to be “detectives online”. The financial implications would include that people would need to be employed to deal with new issues that arise. Technical upgrades would be needed as well.  to identify people spreading harmful content as such content would need to be filtered. He mentioned that RSIA was an on-going process and that it would not end.

Ms Abongile Mashele, Researcher, FPB, said the UNISA study would be forwarded to Members of the Committee as requested. The report would provide details about how the FPB interacted with children and how the children reacted to the visual content they were exposed to daily. The methodology (screening method used) was also included in the report, as the study concentrated on focus groups and quantitative questionnaires with the parents.

Mr Themba Wakashe, Chairperson and Chief Executive Officer, Film and Publication Board, said that all content distributors paid a fee for registration ad would have to submit content to the FPB for classification. The FPB had spent R5.5 million on classification fees processes, yet only managed to collect R2.2 million as revenue. It was very obvious that the FPB was spending more than it was receiving to ensure that the industry submitted all relevant content for classification. FPB also charged an annual online distribution fee. The figures had indicated that government should be charging between R1.6 million and R2.2 million annually, and thus strongly suggested that the government was subsidising the industry at the moment. The idea, therefore, that the Bill was being passed as a way for the government to milk the industry was inaccurate because the figures suggested that the government was contributing towards the growth for the sector. Many African countries were facing the same problems but were relying upon the South African government to bring about solutions which could be implemented in other countries as well. He highlighted that FPB had interacted with Child Welfare, ChildLine and was working within the UNICEF framework. He said that the Department also had information about what each organisation had said and the responses that were given by the FPB.
Mr Sandile Nene, Adviser to the Minister, wanted to clarify why this Bill concentrated on children. Section 28 of the Constitution obliged the government to protect children in particular and he quoted that  “the child’s interests are of paramount interest in every matter concerning the child”. He highlighted clause 16 of the Bill and mentioned that all possible harm to children was considered, in line with the constitutional requirements, when the Bill was drafted.
Ms van Damme said that she had asked about the RSIA because the SABC had suggested that before the Bill was implemented the Department should perform an RSIA. She asked the Department once again to indicate what the plan was in this regard because the presentation seemed to suggest that it would be done contemporaneously with implementation. According to the Parliamentary rules, a RISA should actually be conducted before the Portfolio Committee deliberated and a decision is made to grant the  motion of desirability on a Bill.

Mr Tseli noted that the online distributors had said that when illegal content had to be removed, it had to be accompanied by a court order. He did not agree with that. He believed that the FPB mandate included educating consumers and so he did not see why the content could not simply be removed and the consumer informed that this specific content was illegal or harmful to children. He highlighted that children should not be seen as passive victims, Therefore, when dealing with the online content, the Department should ensure that the children’s rights were considered. Another stakeholder had mentioned that as the content was classified, the FPB would most likely delay live broadcasts, and the public was strongly opposed to that. He asked what the Department had to say on this matter.

The Chairperson agreed with Mr Tseli that consumer education was important. He asked to what extent the FPB had initiated consumer education, with the specific target audience being the youth.

Mr M Gungubele (ANC) asked the Department about the 90% subsidy figure and said he was not convinced on the Department's argument there, that the large expenditure was sufficient justification for the legislation. If the private sector were to contribute more, what then would the role of the state be in ensuring that the society’s rights and obligations were balanced.

The Chairperson mentioned that the Media Monitoring Africa group had highlighted an important issue about children, similar to the points made by Ms Newhoudt-Druchen at the beginning of the meeting. He asked the Department to elaborate further on the issue, so that the Portfolio Committee could have a better understanding. Media Monitoring Africa group had mentioned that children were represented by organisations and so the children’s voice would only be heard through the organisations coming to and expressing their views at the public hearings.

Mr Mashile said that everyone was affected by harmful online content or even illegal online usage and so the Bill would not only be directed towards protecting children but protecting the rights of the society in general. The FPB would have to educate consumers about online digital literacy. Children would be taught how to engage in an online environment as it would be crucial for economic growth. The internet would be used for education and research purposes, and so the Bill would not want to interfere with that. The Department was trying to deal with harmful and illegal content.

The Chairperson asked how the policy review differed from the telecommunications policy review, and how this would be affected.

Mr Sipho Risiba, Chief Operations Officer, FPB, said that the report that Ms Van Dyk had requested was available and the FPB already had prepared a presentation on that. The FPB had sought advice from Senior Counsel as a result of the opinions raised at the public hearings. The FPB had decided to not focus on Section 18(7), (8) and (9), which involved ICASA and media streaming. A lot of work was being put in to ensure that the challenges were eliminated. This Bill would make a distinction between ordinary internet usage and individuals who needed to register in order to distribute online content. The FPB wanted to clearly define the term “online users”, as the impression was that the broad term would include private users on social media.

He also made it clear that the FPB did not have the same powers as the SAPS or the National Prosecuting Authority, but the FPB only played an administrative and supportive role. It was important to ensure that the online user policies were aligned with what the Bill would state.

He highlighted some of the current problems; a church leader had his privacy invaded by pictures of him being posted on Facebook by a young lady in his congregation. When he reported the incident, Facebook noted that the pictures could not be removed because the law did not permit this since it was only photographs that incited terrorism that could be removed. He further said that because the Bill did not highlight broadcasting, live broadcasts would not be affected, as classification of these would not be a requirement. The FPB had also discovered 233  000 pieces of content based on child pornography. The FPB felt the need to correct the problem. It would offer counselling should a child be exposed to such an environment. He also mentioned that schools would be educated frequently about making use of the internet and viewing online content, and that was the primary focus of this Bill.

Ms Mashele said that the regulatory model wanted to make sure that children were not merely passive participants and wanted to figure out how to reach out to the right entities for classification decisions. The Classifications Guideline would be an important tool to determine the age ratings that were prepared and reviewed by the Classifications Board. The Board would look at three things to determine how harmful content would be if children were exposed to it; namely the empirical data, developmental stages available in psychology theory,  and engagements with the children. She repeated that this would ensure that children were actually involved in the classification process.

Mr Nene said that the Department would engage further with the public to enquire about its stance on the current legislation and the Amendment Bill. A Policy Forum had been put in place where stakeholders such as ICASA, the FPB and Brand South Africa would be working together. The FPB was also focussed on empowering online content users.

Ms van Damme felt that it was important to receive information about when the RSIA would take place and what the deadlines were. She repeated that she did not believe that the Portfolio Committee could proceed with the Bill without having first taken these necessary steps.

Ms van Dyk asked what the impact of the Bill would be on the gaming industry in South Africa. She said that most games would be loaded on to the internet before they were sold to the public. She wanted to know the likely effect on gamers, income and job creation in this industry.

Mr Kalako also wanted to know how long the RSIA was likely to take.

Mr Mashile said that the Department would not normally go into detail about the technical implications in a meeting. The social benefits from the RSIA would become clear in due course but it was anticipated that the social impact from the Bill would benefit the economy.  He said that the Department would try to engage with those who had technical expertise to give a detailed report of the total impact on society.

Ms van Damme noted that the SABC had raised a number of objections to the proposed Amendment Bill, some of which dealt with the likely effect on the nation at large. She urged that the Bill had to be properly considered and the Department would have to present each issue thoroughly and in detail to allow for fair engagement.

The Chairperson emphasised that no decision could be taken on the Bill at this meeting as many issues were still unclear.

Mr Risiba confirmed that the FPB would regulate games and was looking into how to deal with peer reviews. He said that during the creative process, game creators would send out the incomplete version of the game, known as the demo, to fellow gamers in order to assess the demand. FPB would not be involved in the creative process and was only interested in the stage of distribution for financial reward, which would take place once the product was completed and ready for sale. At that point, the game would be analysed and submitted for classification. An appropriate classification would be then be added to the game before it was sold to the public.

The meeting was adjourned.