Films and Publications Amendment Bill [B37-2015]: critical inputs from public hearings

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Communications

21 September 2016
Chairperson: Mr H Maxegwana (ANC)
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Meeting Summary

The Committee met to consider critical stakeholder inputs from Parliamentary public hearings into the Films and Publications Amendment Bill, which were presented by the Department of Communications (DOC).

Major issues highlighted by the SA Communications Forum (SACF) included a proposal to substitute the terminology “child pornography” with “child sex abuse material”. The Forum felt that powers of compliance monitors in section 15(a) were too broad and open to abuse, and that the definition of hate speech was too broad in context. The Film and Publication Board (FPB) disagreed with the comments regarding powers of compliance on the grounds that health regulations had similar processes. It also clarified that the current terminology “child pornography” was in tune with the constitutional court definition. The SACF suggested that section 18(8) sought to impose restrictions on the Independent Communications Authority of South Africa (ICASA), and section 18(e) did not accord the respondent of illegal content an opportunity to be heard before it was taken down. The FPB conceded to both comments, revising section 18(e) and deleted section 18(8).

The Right 2 Know commented that the legislation was overly restrictive, the fees and pre-classification capacity were barriers to freedom of expression, pre-publication censorship was unconstitutional, and that though the legislation was designed to protect children from harmful content, their rights and freedom to participate online and in the decisions that affected them had to be taken into account. The FPB responded that Right 2 Know was invited, after a protest march to the FPB offices, to make an input, but had failed to do so. It also pointed out that government was subsidising up to 90% of the costs of classification, and there were digital literacy initiatives to enable children engage in safe on-line activities.

The National Association of Broadcasters (NAB), ICASA, the South African Broadcasting Corporation (SABC), e.t.v and the Association of Christian Media all voiced concerns about the excessive limitations of sections 18(7) to 18(9). In response, the FPB deleted the sections to cure any potential drafting and constitutional deficiency. e.t.v proposed that the words “on-line streaming” be inserted in section 18(6), whilst Multi-Choice requested that the exemption be extend to all ancillary services. The FPB responded that Multi-Choice’s ‘Show Max’ and video on demand on-line services fell under the FPB domain, and the entity had to register and comply with FPB requirements. 

Major concerns raised by Interactive Entertainment South Africa (IESA) were that the policy accorded the FPB with an alarming amount of censorship powers, that the creation of games and films were intrinsically a creative and artistic expression, and that section 18, read with section 24(a) of the Act as regards additions and amendments, was unconstitutional. The entity argued, based on a court judgment, that the system of administrative prior classification was also unconstitutional. FPB’s response was that the interpretation of the court case by IESA had been very selective and misleading. It was also clarified that FPB was a classification authority and not a censorship board. The objective of the classification of mobile games and films was to inform and protect, prior to distribution.

The Jewish Board of Deputies, the Cause for Justice, and Emma Sadleir Social Media Law also made substantive inputs, supporting the Bill and proposing stricter penalties for hate speech, revenge porn and sexual violence against children on-line. The feedback was welcomed by the FPB and incorporated into the Bill.

Media Monitoring Africa and the Save Our SABC (SOS) Coalition mentioned that the voice of children had not been represented during the development of the Bill and at the public hearings before Parliament. As regards inputs from the Centre for Constitutional Rights, the FPB disagreed with the entity on a broad range of issues, especially those which addressed pre-classification and the implementation of the Bill.

The Internet Service Providers’ Association (ISPA) commented that section 27(a) placed onerous obligations on ISPs to monitor hate speech and child pornography. It proposed that take down notices must be accompanied by a court order, and criticised the policy requiring ISPs to preserve evidence, while on the other hand requiring them to take down upon being informed by the FPB.  The FPB responded that the duty to monitor was non-existent, and the board had a memorandum of understanding (MOU) with the South African Police Service (SAPS) on dealing with specific matters. In as much as take down notices had to be accompanied by a court order, any delay in obtaining a court order may defeat the object of the take down and the prevention of continued harm.
 
The majority of the Members’ questions stemmed from the requirement to conduct a Regulatory Impact Analysis (RIA). It took the Department over 25 minutes to concede that no RIA had been conducted for the current Bill. However, they said that research had been conducted, which benchmarked different models in other countries with the FPB.

A Parliamentary legal adviser caused controversy when she asserted that the Committee could not halt the process of the Bill on grounds that no RIA had been conducted, claiming that the RIA was neither a constitutional nor legislated obligation of the Committee. A Member commented that Parliament’s legal services treated the Committee as an institution with no rational obligations, and as a technical instrument which had no duty to respond to societal imperatives.

Other questions pertained to consultation with traditional councils, classification of on-line distributors not registered with the FPB, the degree of independence of the penalty committee, and revealing the identities of on-line perpetrators of hate speech.

 

Meeting report

Critical Inputs from Parliamentary Public Hearings
Mr Collin Mashile, Chief Director, Department of Communications (DoC), briefed the Committee about the comments and inputs from stakeholders and entities affected by the amendment.

The comments by the South African Communications Forum (SACF) said that “child sex abuse” material was the preferred terminology to “child pornography” in order to avert the frustrations of law enforcement agencies as regards implementation. The Film and Publication Board (FPB) had stipulated in its response that the current definition was in line with the constitutional court definition in the case of De Reuck versus the Director of Public Prosecutions (DPP) and others 2004 (1) SA 406 (CC).

The SACF strongly believed the powers of compliance monitors in section 15(A) were too broad and open to abuse, with no basis provided for the proposition. The FPB had disagreed, stating that health regulations had similar processes.

In response to the comment by the SACF that the definition of “hate speech” was too broad, he affirmed that the definition of hate speech had been reviewed accordingly, and included terms that would serve the Bill better and address future issues. As regards the Forum’s proposal to insert the words “for commercial purposes” in the definition of distribute, he said that the FPB disagreed with the comment and insisted that the Act placed the onus on citizens to ensure that they did not distribute harmful content to children without taking necessary precautions.

Section 22 of the Act made provision for people who distributed non-commercial material, such as religious and educational material, to apply to the FPB for exemptions from paying classification fees.

The SACF had also said that section 18(8) sought to impose restrictions on the Independent Communications Authority of SA (ICASA), and section 18(e) did not accord the respondent of illegal content an opportunity to be heard before the content was taken down. In response, the FPB had deleted section 18(8), and the revised section 18(e) now provided a criterion for dealing with prohibited and user-generated content.

The last input from the SACF had stated that the Forum supported the accreditation of foreign rating systems and the establishment of an independent classification authority, as proposed in section 18(c). In response, he affirmed that Multi-choice had advised against the establishment of an independent classification body for film classification, as it would result in the FPB outsourcing its mandate. The FPB had agreed with Multi-Choice in this regard, and section 18(c) had been revised to make provisions for co-regulation.

As regards the comments from Right 2 Know, it had rejected the legislation on the grounds that it was overly restrictive and it framed the internet primarily as a threat. The Right 2 know had been invited to make inputs subsequent to their protest match to the FPB offices, but the entity had neither availed itself, nor made any inputs. Consequently, the FPB disagreed with the comment and stressed that the legislation rather sought to protect children.

Right 2 Know had also commented that the fees and the pre-classification capacity was a barrier to freedom of expression, and that while the designed legislation would protect children from harmful content, children should not be seen merely as passive victims, and their rights and freedoms to participate on-line and in decisions that affected them should be respected.

Mr Mashile affirmed that the government was subsidising up to 90% of the costs and FPB budgets by between R15 to R20 million annually on public awareness campaigns, focusing on learners and educators. The FPB had recently partnered with the SACF and had participated in a number of industry engagements aimed at enabling children to have safe and empowering experiences when engaging in on-line activities.

Right 2 Know had also commented that pre-publication censorship was unconstitutional and in response, the FPB had highlighted that section 7(2) of the constitution, read with section 28(2), placed a direct obligation on organs of state such as the FPB to act in the best interests of the child. As a sequel to this, he said that the interpretation of the media case involving Interactive Entertainment South Africa (IESA) and Google had been very selective and misleading. The print media case had not been against prior classification in general, but rather dealt with the prior classification of protected speech, such as press freedom and the right of the public to receive news and information that was in the public interest without any delays.

Stakeholders which had commented on the Bill included the National Association of Broadcasters (NAB), ICASA, the SA Broadcasting Corporation (SABC), e.t.v, and the Association of Christian Media. There had been comments that the provisions of sections 18(7), 18(8) and 18(9) sought to limit the exemption afforded broadcasting licencees by way of section 18(6) of the Films and Publications Act and instructed ICASA not to renew a broadcasting licence of a licencee who was not registered with the FPB. The provisions had also been termed ultra vires, and said to be in violation of section 192 of the constitution. Regarding the responses by the PFB, it was highlighted that the purpose of the amendments in section 18(7) to (9) was to facilitate synergy and alignment between ICASA and the FPB in relation to overlapping mandates. Sections 8(7) to (9) had been deleted to cure any potential drafting and constitutional deficiency. The Portfolio Committee would take into consideration whether streaming should be exempted for news only.

The stakeholders had also commented that the exemption afforded by section 18(6) of the FP Act be modified to cater for broadcasters’ on-line content that was already classified. In response, Mr Mashile said the FPB would not insert in section 18(6) any wording that would seek to expand or limit the definition of broadcasting as defined in the primary Act, and reiterated that any amendments in relation to what constituted broadcasting must be conducted in the Broadcasting Act and not in the FP Act.

Other comments included the proposal by e.t.v that the words “on-line streaming” be inserted in section 18(6), and that Multi-Choice would want the exemption to extend to all ancillary services. The FPB affirmed that although Multi-Choice was a broadcaster as defined, its broadcaster status could not be used to claim exemption for its Show Max and video-on-demand on-line service. The service was classified under the FPB domain, and Multi-Choice would have to register and comply with FPB requirements.

Interactive Entertainment South Africa had also made some tangible inputs. The first input was that the Bill must be read with the on-line policy in mind. The FPB wished to ensure uniformity in classification and labelling standards for media content distributed on-line. IESA had also commented that for a body that claimed not to be a censorship board, the Bill and policy accorded an alarming amount of censorship powers. The FPB strongly disagreed with the statement stating that the board was a classification authority, and not a censorship board. However, the FPB agreed with the comment that the creation of games and films were intrinsically a creative and artistic expression.

IESA had also commented that section 18, read with section 24(a) of the Act and the proposed additions and amendments envisaged by the Bill. were unconstitutional. The stakeholder had contended that the sections required administrative prior classification of films and games, and made non-compliance a criminal offence. They had reiterated that the system of administrative prior classification was unconstitutional due to it being an unreasonable limitation of the freedom of speech. The FPB had responded that the primary purpose of the board was to provide customers with advice and also to protect children from exposure to disturbing and harmful material and from premature exposure to adult experiences. The FPB added that section 7(2) of the constitution, read with section 28(2), placed a direct obligation on organs of state such as the FPB, to act in the best interests of the child. The board added that with specific reference to the FPB prior classification of films and games, the question had been answered by the constitutional court in the case of De Reuck versus DPP and others 2004 (1) SA 406 (CC).

Interactive Entertainment South Africa had also highlighted that in the constitutional court case of Print Media versus the Minister of Home Affairs and another (CCT113/11), the court had explicitly stated that the system of administrative prior classification was unconstitutional. The board responded that the interpretation of the Print Media case by IESA and Google was very selective and misleading. The board reiterated that the Print Media case was not against prior classification in general, but rather addressed prior administrative classification of protected speech such as press freedom and the right of the public to receive news and information that was in public interest, without any delays. The FPB had added that the court had neither declared section 18 of the Act nor the entire section 16 unconstitutional. The board had clarified that the court had identified only section 16(2) which required magazines that contained sexual conduct to be subject to prior distribution classification to be unconstitutional, and consequently the court had proceeded to redraft the remainder of section 16.

IESA had also proposed that administrative prior classification for media that would receive an X18 or higher rating should be subject to administrative prior classification. The FPB considered the suggestion by IESA and Google that the FPB confine itself to porn classification, and leave all games below X18 and XX ratings to the gaming industry to decide on the appropriate ratings, to be absurd. The board reiterated that section 18(3) of the FP Act provided broad guidelines to the FPB classification committees on how films and games were to be classified, and the guidelines furnished greater clarity on the classification of films and games to ensure that children of the appropriate age were permitted to view them.

The Jewish Board of Deputies had stated that it would like to see internet service providers and administrators of social media being held accountable and forced to release the identity of perpetrators of hate speech on-line.

Emma Sadleir, social media law specialist, had assisted with the alignment of the definition of sexual conduct and child pornography with the definition in the Sexual Offences Amendment Act.

Cause for Justice had called for a single classification system in the country.

Mr Mashile said the FPB had welcomed the feedback from the entities and had incorporated the inputs into the Bill. The definition of “hate speech” had been revised as proposed, and the necessary amendments made to ensure that on-line service providers assisted accordingly. The single classification for the country was an initiative that all industry players, including broadcasters must embrace. At the moment, industry players were quick to indicate that they were regulated by ICASA and wanted nothing to do with the FPB.

Media Monitoring Africa and the ‘Save Our SABC (SOS) Coalition’ had also made some key inputs. Media Monitoring Africa had commented that the voice of children had not been represented during the development of the Bill, and it was still not represented at the public hearings before Parliament. It had also been highlighted that the provisions relating to revenge porn should be tightened to include prohibition against dissemination, even in instances where there had been consent during the creation of such a photograph or film. The FPB had responded that it had worked with learners in schools, parents and care-givers throughout the country. It had travelled around the country in 2012 to educate learners and parents on the impact of media content classification as part of the 2012 review of the classification guidelines, and had also commissioned the University of SA (UNISA) in 2014 to conduct a study on the impact of media content. The FPB had also responded that the necessary amendments have been made in section 18 (f).

The Centre for Constitutional Rights had made some inputs on the Bill. The stakeholder had stated that the Bill must be capable of implementation and enforceable, pre-classification was unconstitutional, the penalty committee lacked the sufficient degree of independence, and an open public participation process in vetting, nominating and appointing of members of council, the appeal tribunal and the penalty committee, was required. While responding, the FPB had ascertained that the Bill was implementable, and other concerns were matters for the Minister and the Portfolio Committee.

The Centre for Constitutional Rights had also pointed that classification of all on-line content was impractical, that the FPB should drop the pre-publication classification requirement, and require that classifiers obtain a court order before entering the premises to classify digital content. The FPB had responded that the mandate of the FPB was to regulate films and games and further to ensure that social media was not used to distribute hate. The Chief Director reiterated that the board also responded that there was nowhere in the Bill where it was stipulated that classifiers would visit the premises of distributors to classify digital content.

The Internet Service Providers’ Association (ISPA) had proposed that section 27(a) placed an onerous obligation on ISPs to monitor hate speech and child pornography. It had added that the policy required ISPs to preserve evidence, while on the other hand the Bill required them to take down material upon being informed by the FPB. ISPA had also commented that take down notices must be accompanied by a court order, and the terminology “child sex abuse” material was preferred instead of “child pornography”. The FPB’s response affirmed that a delay in obtaining a court order may defeat the object of the takedown and prevention of continued harm. The FPB had said that there was no duty for ISPs to monitor hate speech and child pornography, but rather to notify the FPB or remove such content. Mr Mashile added that the FPB had a memorandum of understanding (MOU) with the SA Police Service (SAPS) to deal with such matters and reiterated that the current definition of “child pornography” was in line with the constitutional court definition.
       
Discussion
Mr Sandile Nene, Adviser to the Minister, DOC, mentioned that technical amendments had been dealt with in the South African Postal Service Act of 1958. He added that the ICASA Act had also been amended.

The Chairperson read apologies from the Acting Director General of the Department and the Deputy Minister.
 
Mr Sipho Risiba, Chief Operations Officer, FPB, said the board disagreed with the comment by the Centre for Constitutional Justice that the Bill was not implementable, as strides were being made through partnership with the SACF in its digital literacy forum. As per the comment by IESA, deeming that the classification of games was unconstitutional, the COO said that their interpretation was selective.
 
Mr Mongameli Kweta, Senior State Law Adviser, said that there was no intention to limit the right to privacy and freedom of expression. He clarified that section 14 dealt with privacy and section 15(a) addressed the right to enter the premises of perpetrators of illegal on-line content.

Mr Nene clarified that a thorough regulatory impact assessment (RIA) might take up to two years and by the time it was concluded, market trends would have changed and RIA might fail to achieve its intended purpose. 
The Chairperson said that the Committee was currently undertaking legislative proceedings and proposed that the Parliamentary legal adviser give an insight into RIA issues, as it was a Parliamentary process.

Ms Phumelele Ngema, Parliamentary Legal Adviser, clarified the RIA issues. She said that RIA was neither a constitutional requirement nor a legislated requirement. RIA was rather a mechanism developed by the executive to ensure that the processes of bringing about legislation, repealing laws, or enacting laws were thorough. RIA was basically a rationalisation process instituted by the executive to assist in ensuring the consistency of laws, without their having negative implications.  Parliament had to comply with the constitution as well as the rules when processing legislation.

Ms Ngema clarified that there was a distinction between the RIA and legislative processes, which were both crucial. RIA could be conducted at any given time, either before the initiation of the Bill by the executive, or Parliament through its own Members. RIA was an assessment of the statutes on what was regulating the country. She said that RIA had no relevance, as long as it was still a Bill and could not be enforced. The current process was an amendment of an existing Act, and not a new stand alone bill, so the Department should rather inform the committee if an RIA had been conducted for the principal Act.

She said that there was nowhere in the rules of Parliament or the constitution where provision or enablement was made for Parliament to withdraw a bill or halt its processing where RIA had not been provided. Taking such action was beyond the mandate of the Committee. The opportunity to engage the public and specific interests of the stakeholders within the legislative process could amount to an impact assessment on issues that would arise when the bill became a law. The RIA was basically a good process that afforded all stakeholders an opportunity to influence the outcomes of the bill when enacted, and also to ensure that the Bill was addressing its intended purpose.

Mr M Gungubele (ANC) sought clarity on the legal adviser’s statement that withdrawing a bill without an RIA was beyond the mandates of the Committee. He said that there was a distinction between the duties that were beyond the Committee’s mandate, and what was necessary to produce quality work. An RIA was not just about serving the purpose, but also about the implementation processes required. As regards the comment by SACF on section 15(a) that the powers of compliance were too broad and open to abuse, the response accorded to SACF did not address the question. SACF’s input on section 18(e) regarding the authority to take down illegal content had been given a vague reply. Pertaining to the agreement with Multi-Choice about the mandate of the FPB in section 18(c) of the bill, no comprehensive explanation had been provided. As regards the inputs from “Right to Know” raising concerns about the taking into account of the rights of freedom and participation of children on-line and in decisions that affected them, the response provided had been merely technical and did not address the key elements.

Ms P van Damme (DA) said that even though the Department had consulted stakeholders, the only issue the Department was conceding on was the avoidance of duplicating ICASA’s mandates. Major constitutional concerns raised by key industry players whom the law sought to regulate had not been addressed. The court judgement on pre-classification had been clear and simply stated that any pre-publication classification limited the rights to freedom of expression, which was vital for democracy. Limitations must be justifiable in an open and democratic society and only less restrictive means should be applied. She reiterated that even if the Committee decided to endorse the bill, the constitutional court would challenge the pre-publication classification. Taking down websites without a court order was an infringement on the rights of website owners, and the Department was seeking to overstep its mandates by undertaking roles that overlapped with those of law enforcement agencies and the judiciary.

Ms Van Damme said that the amendments were major, and not merely technical amendments as stated, and when issues such as co-regulation and a penalty committee were introduced, the amendments were considered major and substantive. Addressing comments by the Parliamentary legal adviser, she said that Parliament had been given wrong legal advice in the past, which accounted for the loss of many court cases. In terms of the rules, Parliament was required to conduct a motion of desirability to consider all the facts before processing a bill. She argued that part of the facts included the RIA, which was extremely crucial. In terms of RIAs, a policy had been adopted in 2002 which required that seven steps be taken before a bill was introduced to parliament. She inquired if a full and updated RIA had been conducted before presenting the bill, as it formed part of the aforementioned steps. The market circumstances which might change could be identified only when an RIA was conducted and consequently, Mr Sandile’s argument about changing market factors was invalid.

Ms V van Dyk (DA) sought clarity on the differences between a search engine, a hosting provider, and an ISP. She said that the e.t.v legal representative had indicated that by placing live streaming content regulation under the FPB, and not ICASA, the bill prohibited the streaming of live content. She asked why Google had been depicted in the report as a hosting provider. Why were video on demand services classified under the FPB, whilst the bill addressed only online streaming. There had been public outrage that the book “50 Shades of Grey” had not been classified, but the film had been. Why were games and films deemed more harmful than books? The bill as currently drafted would prohibit the streaming of live content on the internet by broadcasters, as they could not be pre-classified.

She asked how content by different broadcasters would be identified on the internet, and the financial implications for non- compliance. She said that the broadcasting industry could not be regulated by two institutions (FPB and ICASA) from the same government. How did the FPB intend to deal with online game distributors that were not registered with the board? She sought clarity on the definition of “user generated content,” and inquired why the FPB aspired to impose criminal sanctions against non-compliance with classification, while regulating bodies in other countries and the European Union had not implemented similar sanctions.
 
Mr R Tseli (ANC) said that if a role player suggested that some members of the committee being proposed by the FPB lacked independence, and FPB responded that it avoided an altercation with the Minister and preferred that the issues were handled by the board, the FPB then became a player and also a referee. He asked why role players had to appeal through a body set up by the FPB and not an independent body. As regards section 18(e), the argument had been that illegal content could not be taken down without consulting the respondent, and the FPB’s reply did not address the stated issue. He asked if the FPB aligned itself with the proposal by the Jewish Board of Deputies, as no valid response had been provided. He sought clarity on the section 16 argument by Interactive Entertainment South Africa, that the whole of the section was unconstitutional, and asked how the FPB aimed to strike a balance between the mandates of the FPB on classification and the court ruling which exempted magazines from pre-classification.

Ms S van Schalkwyk (ANC) inquired why traditional councils, which played vital roles, had not been taken into consideration in the amendment process, and stressed that the Committee dealt with issues of nation building and social cohesion. She proposed that the Department engage with traditional councils to make substantive inputs.

A Member sought clarity on elements of section 18 and their likelihood of impacting on the implementation of the Bill. She also endorsed the proposal of the Jewish Board of Deputies.
 
Mr M Kalako (ANC) inquired if an impact assessment had been conducted when the principal bill was passed. The bill stood a chance of being processed only when all legal and constitutional doubts had been cleared by the Department. He suggested that the Department and FPB engage the NAB, as similar issues were being raised by broadcasters. As much as the Committee was keen on processing the bill to address issues, a thorough procedure could not be overlooked. He also clarified that the bill was the sole mandate of the Committee, and not the Minister.

Mr M Kekana (ANC) suggested that stakeholders and the NAB must be engaged and their issues refined prior to the submission of the final amendment.

The Chairperson commented that e.t.v’s section 18(6) concern had not been addressed, as it related to the insertion of the words “online streaming”. He added that the Bill was the sole mandate of the Committee, and not the Minister. Cabinet issues did not apply to the Committee, and the issues about the principal bill must be addressed. He added that the Department should respect the views of stakeholders and ensure that they were integrated into the bill.

Mr Kweta explained that section 16 provided for the classification of publications, and the board possessed the mandate to refer publications to the classification committee. Section 16(1) made provision for stakeholders to apply for classification and exemptions to apply to newspapers. The Print Media judgment proposed that magazines should also be exempted from gaining prior approval before publishing their contents, and they would be exempted accordingly. Section 16 in its entirety was aimed at strictly classifying publications, and not at limiting the freedom of expression. Section 18(e) made provision for the board to take down certain notices. The Promotion of Administrative Justice Act (PAJA) stipulated that public power must be exercised in a just manner with due process. He claimed that the Act was always applicable, and the board was also required to engage the respondent before the notices were taken down. He then proposed that the Committee consider including in the new section 18(e) the words, “will be subject to due process” or “will be subject to the PAJA Act”
 
Mr Risiba said that with reference to section 16(2) and the post-Print Media constitutional judgment, on-line publications subject to the regulations of the Press Council were also exempted from pre-classification. Other magazines which were not regulated by the Press Council still had to submit their publications for classification. The book “50 Shades of Grey” had been classified “18,” and the outrage had been based on the expectation that the film, which received a rating of “16,” should have received a higher rating than the book.

He said that stakeholders were required to provide specific details when challenging the constitutionality of the bill. There were systems, including on-line, in place to prevent delays in classification decisions, and the taking down of websites was a mere misconception. He clarified that the aim was to take down illegal content on-line and on social media, and not websites. Pertaining to the streaming of broadcasting services, he clarified that news coverage and public rights to receive information that was in their best interest exceeded the board’s mandate. Exemption of all ancillary services provided would not be conceded as regards the video on demand services of Multi-Choice.

The Chairperson inquired about the meaning of video on demand services.

Mr Risiba replied that video on demand services allowed subscribers to rent movies on-line without visiting physical video stores. Pertaining to issues raised about the independence of the penalty committee, he said that the purpose of the penalty committee was to impose administrative fines, as it would be an onerous task to report every minor offence to the SAPS. Offences related to child pornography, hate speech and propaganda had to be reported to SAPS, as such offences required a criminal justice approach. In the event where illegal on-line content was hosted outside the Republic, the board would contact the relevant law enforcement agency of the respective country.

He said that the FPB had endorsed the input from the Jewish Board of Deputies. Addressing Ms Van Dyk’s question, he explained that ISPs provided access only to the internet. Google was an example of a search engine. Although Google had measures in place to prevent access to child pornography, the stakeholder still battled to filter explicit results from its search engine. Hosting providers were likened to ISPs, and they hosted films online.

All the inputs from stakeholders had been taken seriously and they had assisted the board in compiling a sound and valid document that could withstand constitutional scrutiny. The definition of “digital film” and “stream” excluded broadcasting services. Subsequent to the hearings, two Senior Counsels had been consulted for legal opinions, and sections 18(7) to 18(9) had consequently been deleted from the Bill.

Mr Mashile endorsed the comments of Ms Van Schalkwyk, and said that traditional councils would be consulted when drafting future policies. He also endorsed the comments by the Jewish Board of Deputies. While it was the mandate of the Dpartment to remove contents relating to hate speech on-ine and tracing the perpetrators, it became the mandate of the Department of Justice and enforcement agencies to undertake proper action. E.t.v’s concern had not been dismissed, but had been properly addressed. He clarified that ‘user generated content’ had been defined in the document presented to the Committee earlier.

Mr Risiba responded to Ms Van Damme’s question, and confirmed that a Regulatory ImpAct Assessment had been conducted, coupled with consultation with the industry and relevant stakeholders.
 
Mr Nene mentioned that as regards RIAs, there was a general understanding that the market would always be ahead of policy and regulation. He also said that the information on social media was encrypted and cumbersome for the national intelligence agency to access. The Department would abide by the recommendations of the committee pertaining to RIAs. He said that an RIA might take three years to complete and by the time it was implemented, the market would still be ahead of the policy.

Mr Mashile said that when the law had been passed in 1996, the RIA phenomenon was not in existence. It had only come into effect on 1 October 2015. The proposal by the Jewish Board of Deputies might be extremely difficult to implement due to issues around the encryption of vital information. He added that the inputs of all stakeholders were imperative for the Department to fulfil its mandate.
 
Mr Risiba said that as regards the international classification of games and films, benchmarks were conducted with specific reference to the Pan European Game Information (PEGI) video game content rating system. He said that both were self-regulatory entities and memberships were voluntary, while the FPB was a state entity. It was easier for both entities to enforce policies because consumers could boycott products that did not bear the logo of the entities. The South African classification system was in line with the Australian classification system. Finland had a similar body, with trained classifiers, and broadcasters did not pay any classification fee as it was fully transferred to the industry. In Brazil, classification was fully subsidised by the government, but penalties were attached to non-compliance. The board had looked at various models and have imported some that would assist in mitigating the challenges faced in the country.

Ms Van Damme said that RIA’s legal requirements had been in existence since 2012, and not since 2015, as stated by Mr Mashile. She asked if an RIA had been conducted as part of the Department of Performance Monitoring and Evaluation (DPME) guidelines of February 2012, and if it had been conducted in accordance with DPME guidelines, since the Chief Director had stated it was a legal requirement. She inquired if the research conducted by the FPB was aligned with RIA requirements. She said that the steps in the RIA process included identifying a policy issue before a bill was drafted and conducting an initial RIA before drafting the bill. An initial RIA was then used for discussions before the bill was drafted, the updated RIA was concluded, and then amendments were made to the bill. A full RIA was then submitted to Cabinet with the draft bill. The full RIA was then published with the draft Bill and regulations for comment, after which the full RIA was updated before a final submission of the draft Bill to the Parliament.

The Chairperson said that the question referred to the DOC and was a mandate of the Department, and not the FPB. He then inquired if the question was a follow-up to the Department.

Ms Van Damme clarified that the question was a follow-up to both the Department and the FPB, since the Chief Director had clearly stated that conducting an RIA was a legal requirement according to the DPME guidelines of February 2012, and not in October 2015, as stated by the Chief Director. She then inquired if the RIA had been conducted in accordance with DPME guidelines, or if only research had been conducted. She stressed that research did not automatically translate into an RIA ,as both were completely different.

Mr Mashile responded that the bill was the Department’s responsibility. According to Cabinet requirements, every Department was required to conduct a socio-economic impact assessment, which was equivalent to an RIA. The RIA was the sole responsibility of the Department, and not the FPB. As of 1 October 2015, the bill had already been drafted and an RIA could not be conducted. Mr Mashile suggested that he limited his comments, as they tended to be misinterpreted.

Ms Van Damme interrupted Mr Mashile, and asked him to reply if a RIA had been conducted or not.

The Chairperson advised the Department and the FPB to listen and simply address the questions being asked.

Mr Tseli advised the Department refrain from giving explanations that had not been requested, but rather to answer the simple question of whether an RIA had been conducted or not.

The Chairperson added that members wanted clear answers, and not explanations.

Mr Gungubele said that the Adviser to the Minister had informed the Committee about market trends that were rapidly changing, and which affected an RIA. The missing part of the Mr Sandile’s statement was an insight into the obligation of the Department to ensure that actions were taken fast. He reiterated that fundamental requirements could not be skipped simply because factors were rapidly changing. Fundamental requirements depended on the Department’s technical interventions. He expressed his worries about the serious economic impact the RIA had, and mentioned that if the Department required prompt action from the Committee on the bill, fundamental issues had to be addressed by the Department.
 
The Chairperson said that the Chief Director appeared to have no insight about the implementation date of the RIA. He said that the Department reserved the right to be open about issues they had no clue about, and would be referred to the Committee at a later date. He asked when the previous RIA had been conducted, if any, and mentioned that the issue being raised by the Committee was a fundamental issue and it was interested in receiving a clear answer.

The Chief Director suggested delegating Mr Sandile to address the question related to the RIA, after which he would finalise the response.

The Chairperson declined and said that if the Adviser to the Minister chose to answer the question, he might as well finalise it.

Mr Mashile said that the Committee would be briefed in detail about the RIA at the next engagement scheduled for 13 October.

Ms Van Damme expressed her serious dissatisfaction with the fact that despite the knowledge of the department that the Committee would engage on RIA, no favourable answer had been received. She asked again if an RIA had been conducted or not. There was no need to postpone the response till the next engagement, and she urged the Department to rather answer the question.

The Chairperson mentioned that the Chief Director and the Adviser represented not only the Department, but also the Minister. They both needed to be well versed with the right information before undertaking such mandates. The RIA was mentioned in a document in the previous engagement, and all issues pertaining to it should have been addressed. He expressed his shock about the Department’s silence on RIA. He then informed Ms Van Damme that it would also be improper for the Department to give an answer they were not sure of. If the Department was incapable of dealing with the issues raised, they should rather engage the Committee at a later date.

Mr Tseli endorsed the Chairperson’s comments, and advised the Department to refrain from providing a problematic response. He said that the Committee intended to process the bill as soon as possible, but the RIA was a fundamental issue which must be thoroughly addressed. He also endorsed comments of Members who had expressed their dissatisfaction about the Department’s silence regarding the RIA. He appealed to Members not to pursue the issue of the RIA further, but rather to engage the Department at a later date.
 
Ms Van Damme reiterated that the Adviser and Chief Director had been mandated and given full authority to be capable of answering questions pertaining to RIA. She concluded that the Department had not conducted an RIA or was perhaps afraid to answer “no” in an attempt to avoid an altercation with the Minister.

Ms Van Dyk said that two of her questions had not been addressed. She inquired about section 16(1), as only magazines and newspapers had been addressed. She then asked about blogging, software, and other forms of reporting, and sought clarity if they were also required to register. How did the FPB intend to deal with on-line publishers of games and films who were not registered with the board? What was the definition of ‘user generated content’?

Mr Mashile responded that ‘user generated content’ was clarified in the document presented to the committee.

Mr Risiba said that the FPB had considered inputs from the NAB and had redrafted the definition of “streaming” and “film” to specifically exempt broadcasted content to avoid confusion. He confirmed that as regards on-line international distributors who were not registered with the board, there was an arrangement in terms of section 22 (3) of the FP Act, where the board issued permits to on-line content distributors upon payment of a prescribed fee of R795, which enabled them to self-classify contents subject to training by the board, and industry audits.

As regards unregistered on-line content distributors, he said that there were arrangements in place to deal with those entities and also to obtain interdicts and block them via the MOU with ICASA.

He explained that more emphasis was placed on the classification of films and games than publications, as studies revealed that children tended to mould their behaviour and character based on the content they were exposed to, and films and games left longer impacts in the minds of children. There was currently a regime where the Press Council addressed issues at publication.

Mr Kalako advised the Department to stop beating about the bush and provide a clear answer if an RIA had been conducted or not. He also inquired if the Department had actively participated in the initiation and drafting process of the bill. The FPB had already responded that research had been conducted which was not an RIA, so the Department should be able to provide answers regarding RIA.

The Chairperson again advised the Department to respond if an RIA had been conducted or not. In the event where officials failed to speak the truth in Committee engagements, actions would be taken in terms of the Public Finance Management Act (PFMA).

Mr Nene said that an RIA was a Cabinet directive or a guideline, and not a legislative requirement.

Ms Van Damme interjected, and said Mr Sandile was beating about the bush and not answering the question asked. She inquired again if an RIA had been conducted or not.
 
The Chairperson advised the Department to refrain from raising issues that would become problematic, and simply answer the posed question.

Mr Nene answered that no RIA had been conducted to date, and only research had been conducted which had studied different countries.

The Chairperson wondered why it had taken the Department so long to concede that no RIA had been conducted. He added that the responses from the Department must be honest.

Ms Ngema clarified that there could never be an obligation or function or duty that was required of Parliament unless it came out of a stipulated mandate in the form of the constitution or legislation. At present, neither of these were in existence, but in terms of justice laws rationalisation -- to rationalize justice and the court -- section 6 item 16(a) of the constitution did provide such an obligation, which was restricted only to justice issues and the running of the courts of the country. The question posed as regards RIAs was a process question, and while advisers provided advice to influence the legislature, it must be noted that the legislators were the decision makers. She said that earlier in the engagement, answers had been based on assumptions until the Department had indicated that no RIA had been conducted. There were distinctions between the constitution, the legislation, the regulation and the guidelines, among others, but supreme to all of them was the constitution, followed by the legislation.  Neither the constitution nor legislation defined the obligations of Parliament in respect of RIAs. The issue then became the issue of an oversight, and section 55(2) came into place, which had nothing to do with the legislative process.

The RIA issue should rather be to submit and advise, and when the Committee had deliberated and was preparing its report for the House, its resolutions on RIA would be included. The Committee was a body of the House and could not stand or act alone. Time was evolving and things were rapidly changing. The rules applicable now had been adopted in May 2016, and spoke clearly on the motion of desirability, but the previous rules had not been clear. Hence there were constitutional cases, especially with respect to bills initiated by Parliament or by the Members or by the Committee, which made a distinction between an executive bill and a bill initiated by Parliament. She said that in terms of the rules of Parliament, when the first reading of an executive bill was conducted, the House decided on the next line of action which was in tune with the new rules. If the House failed to hold the bill at that stage, but referred it to the Committee for processing, the Committee must then continue processing, despite the issues encountered which related to the matter of the motion of desirability and the remedy to that would be in the Committee’s report to the House to highlight all that had transpired during the Committee proceedings. However, a bill from the executive could not be halted based on the fact that an RIA had not been conducted.

As regards the Committee’s bill, the motion of desirability was also discussed and if the decision on the motion of desirability was negative, the Bill did not move to the Committee. However, for an executive bill such as the one being processed, once referred, the Committee must deliberate and complete the processing and reflect any dissatisfaction observed in their report to the House, which was a necessary and crucial exercise.

She proposed that that the Committee suggest to the constitutional review committee to include an RIA as a constitutional obligation for the Committee. A guideline from the executive could not apply in Parliament, but it may influence the decision and an internal guideline from Parliament was binding.

The Chairperson said that a response had been received from the Department that no RIA had been conducted. On 13 October, inputs from the Parliamentary services would be given on the whole bill, and advice on the processes, and the Committee would engage on any pending issues on the bill on 13 October before it was finalised on 23 October 2016.

Mr Tseli said that with regard to the RIA which had not been conducted, even though it had been mentioned in the State of the Nation Address (SONA), it would be a bad precedent to fail to fulfil certain mandates based on the fact that they have not been translated into legislation. He emphasised that the RIA was a Cabinet decision and needed to be respected.

Mr Gungubele said that the Parliamentary legal services treated the Committee as an institution with no rational obligation and as a technical instrument which had no duty to respond to societal imperatives. He said that the Committee had a rational responsibility to fulfil and was not a mere technical instrument. The statement made by the Parliamentary legal adviser that the Committee was acting beyond its powers was unacceptable.
 
Ms Van Damme proposed that all necessary information must be received from the Department before the bill was processed.

The Chairperson said that the Parliamentary legal adviser should be well equipped in the next engagement to participate actively if need be.

Ms Ngema asked Members to appreciate the clear distinction between an oversight exercise for Parliament, and legislative processes for Parliament.

The Chairperson said the parliamentary legal adviser would be engaged on 13 October. He advised the Department to pay attention to the raised issues to avoid the bill being challenged. It would be advisable to have a full team of officials from the Department, including senior executives and legal advisers, as well as the FPB, to assist the Committee to have meaningful engagements.

The meeting was adjourned.
 

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