Films and Publication Amendment Bill: hearings

Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
19 November 2003
Films and Publication AMENDMENT BILL: Hearings

Chairperson: Mr H Chauke

Relevant Documents
Films and Publication Amendment Bill [B61-2003]
Internet Service Providers Association
National Association of Broadcasters' Submission
Independent Communications Authority of South Africa
Cell C Submission
MTN Submission
Federation of Expression Institute Submission
Vodacom Submission (Appendix)
Telkom's Submission

SUMMARY
Submissions were heard from the Internet Service Providers Association, National Association of Broadcasters', MTN, Telkom and from 'Standing Together to Oppose Pornography'. Submissions had also been received from the Independent Communications Authority of South Africa (ICASA), Cell C, the Federation of Expression Institute Submission and Vodacom. Discussion mainly revolved around being liability without knowledge, and concerns about the meanings of 'distribute', 'possession' and 'reasonable steps'. The technological difficulties of monitoring internet and telecommunications traffic were highlighted. The submissions all supported the total ban on child pornography through practical measures. The concerns and details raised were noted for further discussion by the Committee, drafters and Advisors.

Discussion
Mr Chauke said this Bill dealt directly with pornography and should to be finalised by the end of the session. The Bill put the responsibility of the removal of child pornography (CP) in the hands of South African citizens.

Internet Service Providers' Association submission
Mr Richard Heath reported that the concerns of the Association centered around the definition of 'distribute', 'possession' and the implications of section 27A. They also queried the meaning of 'reasonable steps' because Internet Service Providers (ISPs) had no control over content. The definition of possession in section (1) (e) did not include 'with intent to hold' in its present definition. Mr Heath motivated that with 'some form of knowledge' be included'.
Section 27 (a)(1)(a) dealt with issues of access. The clause in its current form meant that by giving access unknowingly, they would be held liable. He motivated that 'knowingly provide access' be inserted. In Section 27A(a), the definition of ISPs was too broad, which would create uncertainty. He motivated that clause 27A be removed because many issues had been dealt with in the Electronic and Communications Transactions Act. He asked the Committee to look at the ECT Act to deal with issues of distribution because in its current form, ISPs would be automatically held liable. ICASA already had a register of ISPs. For details, see attached document.

Discussion
Mr Chauke pointed out that the Bill had just arrived. He asked Mr Heath that other than the 3 areas what would be the input of ISPs in assisting the eradication of CP, apart from voicing their three concerns. He said that ISPs had to be responsible somewhere.

Mr Heath said that he had condensed their submission. He explained that ISPs distributed so much content that they had no way of knowing what was being sent out. ISPs should only be held accountable for knowingly distributing CP. The ECT Act adequately dealt with being held liable for knowingly distributing and not taking steps.

Ms A Van Wyk (ANC) commented that section 27A was being taken out of context. The Bill was not expecting ISPs to monitor, but once notified, to take steps. CP was a more serious issue than harmful content and needed to be dealt with strongly. She got the feeling that the presenter wanted no responsibility.

Mr Heath disagreed and repeated that it was not clear what constituted 'reasonable steps'. If ISPs had been notified and had to act, the legislation should say exactly that.

Mr K Morwamoche (ANC) said that ISPs wanted to distribute but they did not want to be held liable for their mistakes. He gathered that Mr Heath was arguing that no one should be held liable from the ISP's side. He asked who should be held liable.

Mr Heath said that ISPs were happy to be held liable if they had knowledge of the content. Reasonable steps could be interpreted differently - for instance, one Judge could decide that not monitoring was not reasonable steps. The ambiguity of 'reasonable steps' would have an adverse reaction on ISPs because of uncertainty created.

Mr Chauke asked for a comment from the drafters. The Committee was trying to put in measures to put a total ban on CP. The fact that ISPs were shying away from responsibility was an issue. Maybe the Committee was dealing with something that they did not understand.

Mr P Sibande (ANC) said that there were challenges facing the country as a whole. Section 27A dealt with individual and societal responsibility. There was a national issue of moral degeneration which had to be dealt with. The trend of money as a priority over rights had to be removed.

Advocate K Malatji (Chief Director: Legal Services) explained that section 27A said that ISPs had responsibility once they had knowledge. The concept of reasonable steps was part of many different types of legislation. The refusal to be held responsible was not taking the Bill forward. There was nothing wrong with Section 27A because it just meant 'where there was knowledge'.

Mr Chauke asked for comments on distribution and registration. He brought up the issue of ICASA needing another register. He asked the drafters what they had found through their consultation and for the rationale behind registering.

Mr I Chetty (Legal Council: Film and Publications Bill) agreed that there was no need for a central registry by another authority if one already existed. The government had to know whom they were dealing with. On the issue of 'reasonable steps', it had been written deliberately widely in order to give people room to move. There was no problem with the definition of distribute and he felt that there was no unreasonable burden on ISPs. It was not necessary to tamper with the definition.

Mr Chauke pointed out that there would still be more consultation and more time to engage.

Mr M Waters (DA) asked how long it would take to shut down a site once ISPs had been warned. The members were concerned that there was not enough policing of content. He asked how much it would cost and how much manpower it would take to police content.

Mr Heath explained that data centres hosted other peoples content. He said that it could be taken down within 1 hour. As it could take time to locate a site, it could take longer. If the site was hosted on a South African network and server, it could be taken down within ½ hour. Steps had been taken regarding policing but that in many situations, it was technically and physically impossible to police content. The main problem for ISPs was section 27 (b) because this was not clear. 27A (2) (a), (b) and (c) pinpointed where the liability lay and they were happy with those clauses.

Mr W M Sikakane (ANC) observed that the Committee may be legislating on something that they did not understand. He asked Mr Heath to clearly explain whether it was possible to intervene or intercept material on the internet.

Mr Heath said that it was a complicated question because of privacy concerns. He used the example of the Post Office opening letters that they were mandated to distribute. ISPs transmitted data from one person to another. It involved much material, therefore it was a technological and privacy issue.

National Association of Broadcasters' (NAB) submission
Professor Kobus Van Rooyen outlined the concerns of broadcasters, such as the definition of CP. They proposed that the Bill should use the definition used in the Constitutional Court. They discussed issues of aesthetic feeling, visual art being included into the definition. They raised concerns around the meaning of 'distribute', the definitions of sexual conduct, classification of publications, the jurisdiction of the Film and Publications Board over broadcasters, the use of warrants and CP crimes Committee extra-territorially. They also submitted proposed solutions for these concerns. For details, please see attached document.

Discussion
Mr Chauke said that it was clear that broadcasters did not want to be interfered with. He gave the example of YIZO YIZO and the particular arrangements to sensor the film after the outcry. He asked the broadcasters what mechanisms they were advocating, how CP should be dealt with, and the systems they would suggest.

Professor Van Rooyen said that the regulation of content fell under ICASA and was based on the Constitution. He said that to date, no broadcaster had broadcasted CP of any kind because under the code, no XXX films could be shown. There were mechanisms and rules in place to deal with the complaints with films like YIZO YIZO. Parliament and government had agreed that broadcasters should be basically independent since 1994. On the YIZO YIZO issue, Parliament had discussed the issue before a decision was taken on the complaints received. The Broadcasting Commission had met within 9 days and a decision was taken by the panel that the SABC was wrong for broadcasting the series at 20.30hrs. If they had done it again, they would have been fined. It was clear that the system was working well.

Mr Chauke asked about the relationship between NAB and the Film and Publications Board.

Professor Van Rooyen said that they had fantastic co-operation. If they had a complaint, they immediately contacted the Film and Publications Board. The first guideline was to look at the certificate issued by the Film and Publications Board. There was now a watershed rule of 9pm.

Mr P M Sibande (ANC) asked for clarity on Proposal 8 which proposed not implementing the repeal of the provision because it would remove the work of 23 years. He asked for elaboration in detail because the process of inclusive transformation involved a change of some of the rules.

Professor Van Rooyen said in 1994 there had been over 80 public hearings regarding the pre-control of film distributors. This issue engaged with an appeal and the additions to conditions.

Mr Chauke asked if the drafters had anything to add.

Mr Chetty said that there was a contradiction because the Classification Review Board should give restrictions. There was a question of whether or not stronger restrictions were needed. Limiting the power of the Appeal Board was not helpful. The issue was not written in stone because it was opened to Parliament.

Professor Van Rooyen agreed with Mr Chetty. If more restrictions were imposed, then an appeal should be lodged by the Minister.

Mr Chauke said that the issue would be flagged for discussion later.

Ms Van Wyk commented about the proposal that the Film and Publications Board be able to fine. broadcasters The function of the board was a disciplinary function, therefore it was not a problem to fine. She asked for a comment form the State Law Advisor on the Bill's constitutionality. She said that the matter of CP was directed at the Film and Publications Board. Although the broadcasters were more responsible to ICASA, there was nothing in law prohibiting Parliament making broadcasters more responsible for CP.

Mr Chauke asked Advocate Otto Kellner about the regulation of a broadcaster by ICASA and the attempt to regulate them through the Bill. Was it going against the Constitution? What had informed the decision to include the broadcasters?

Advocate Otto Kellner agreed with Ms Van Wyk. Jurisdiction under another board could be a problem. ICASA was just the umbrella body but Parliament could tell them what to do. They needed to look at the regulation of the Film and Publications Amendment Bill (FPAB) and the rules of ICASA to see if there was contradiction.

Mr Chauke said that ICASA and the FPAB were both put in place by Parliament. More detail was needed on the contradiction. He asked the drafters for a comment.

Adv. Malatji said that registration under different Acts served different purposes. ICASA's role was different to PFAB. They still had to see where the duplication was. They were dealing with the specific issue of CP. Broadcasters were under ICASA for a specific purpose which had nothing to do with CP. Broadcasters were not being brought under the Film and Publications Board to administer them. Clear proof of duplication was needed.

Mr Chauke referred the Committee to the submission by ICASA.

Professor Van Rooyen said the Film and Publications Board was not a disciplinary body like the Broadcasting Complaints Commission (BCC), thus this would be a new arm. CP was not the problem. Section 24 (4) prohibited any broadcasting of CP, classified or unclassified. ICASA had included CP in its Code and additional rules were not necessary because any person could be prosecuted. ICASA was a constitutionally recognised body and the Film and Publications Board was not a constitutionally recognised body. ICASA had a well-established Code and the BCC worked well.

Ms Nana Makaula (CEO Film and Publications Board) said that the Board also regulated the distribution of films. There was a need to ensure that the regulatory mandate was done and a need for specific fines. The Board had to monitor, otherwise the Act would remain unimplemented. CP was being expanded from only being a Film and Publication issue. CP cases had previously been delayed because everything had to be taken to the Board before being taken to court. That was why it had been removed from Schedule 1 in order to make it a criminal offence that could be taken straight to court. There were annual reports complaining how broadcasters were let off the hook from the PFAB. The Board had been at pains trying to bring jurisdictions together and broadcasters had to observe the requirements of the PFAB.

Mr Chauke referred to his earlier question about the relationship between the two bodies. This was not the place for that debate but it was clear that that there was no proper co-ordination.

Professor Van Rooyen said that he did not want to give the impression that broadcasters were in cahoots with ICASA. Parliament had given framework to regulate to broadcasters. The guidelines were different with the broadcasters forming part of the press. The Committee had to give careful consideration to rights of broadcasters. Parliament had given governing rights to ICASA. CP was not an issue because it was dealt within the parameters to deal with the broadcasting. He conceded on the issue of a proviso. He was not soft on CP but no broadcaster had ever broadcasted CP. There was a special ruling by ICASA about X18 films being shown late at night. The history of NAB and ICASA had to be respected and another consultation needed to be held.

Mr Chauke said the door was open for NAB and the Film and Publications Board to talk. The doors were still open for more items to be sent in.

MTN Submission
Mr Siyabonga Madyibi (Senior Regulatory Advisor) raised concerns around the definitions being too broad. The Telecommunciations Act section 14. MTN was a mere conduit and a medium of content. There was a constitutional premise of the right to privacy and the practical implications of MTN having to intercept every SMS. There was also the issue of the interpretation of ISP. Mobile operators were conduits and did not deal with content. The Interception Act held certain obligations about reasonable suspicion and the ECT Act performed the same role as the Bill. For further details, please see attached presentation.

Discussion
Mr Chauke asked Mr Madyibi how many of the 4 million subscribers were prepaid versus contract. The issue of policing was a big one together with the issue of capacity. He asked MTN where they saw themselves playing a role.

Mr Madyibi said that it was safe to say that over 80% were prepaid.

Mr Chauke asked if that meant that 80% of the 4 million could not be controlled.

Mr Madyibi said that it was unfortunate but true. The prepaid industry in South Africa had exploded and there were no regulations on prepaid. There were no details or information taken in the prepaid service. Prepaid services used independent numbers. The only way to trace the identity of a user was through the serial number, but the reality was that many phones were bought with no details.

Mr Chauke reflected that the figures meant that 800 000 could be controlled. He asked if they had the capacity to regulate that.

Mr Madyibi related that on a single day, the MTN tollfree number received 9 000 calls. The amount of traffic amounted to millions of transactions. Due to the volume, it was impossible to monitor. If there was reasonable suspicion, then they would intercept but it was practically impossible even among contract subscribers.

Mr Walters expressed sympathy. He told the drafters that the ECT Act and others had been 3 to 4 years in the making. Was the amendment of the legislation being based on the Acts being passed?

Mr Chauke brought attention back to pornographic material being sent from one person to another. If there was a total ban and this was contravened, what could be done? What capacity did MTN have?

Mr Madyibi said they could hand over monitoring material to the authorities. This was harder to achieve with prepaid subscribers because they could not identify the user.

Mr Chauke said that it was an issue of responsibility because there was a gap in the law. At some point, subscribers should give their information when purchasing prepaid cards. Unless there was a particular register in place, they could not deal with the problems in this situation.

Mr Malatji said that the Bill was not consistent in the ECT Act and it did not impose strict liabilities. Internet providers had to knowingly take steps as CP was very serious. Although there was the Right to Privacy, Section 28 of the Constitution guaranteed the rights of the child. Certain businesses had to be conducted differently to deal with the legislation. It was not correct that it was an open-ended obligation because steps had to be taken to prevent CP being transmitted or broadcast.

Mr Chetty said that with the convergence of technology, paedophiles exploited many means of technology. After what he had been hearing, he felt that maybe mobile operators needed to be included.

Mr Madyibi said that Section 27 and the ECT Act spoke to CP. Mobile operators were not encouraging CP but the implementation of the law had to be practical. The ECT Act excluded mobile operators. There had to be a balance between monitoring transmissions and protected transactions. He stressed caution regarding how to come up with steps to deal with the issues. Currently there was liability to anyone who transmitted unknowingly. MTN was in the business of dealing with content. He said that in the Interception Act, there was a suggestion that prepaid customers had to leave a copy of their ID. This had an impact on the people who had businesses on street corners because everyone who sold prepaid corners would have to have photocopy machines to copy IDs. He asked if the legislation meant to deal with the possible gap with prepaid clients.

Ms Nosiviwe Mapisa-Nqakula (Deputy Minister - Home Affairs) directed her comment to Advocate Malatji. The Committee was not saying that they wanted mobile operators to have the capacity to monitor. Where there was a whistle blower and a report made, then the service provider had to co-operate with the investigation. In terms of the Interception and Monitoring Act, service providers deliberately intercepting every SMS was a violation of the rights of citizens. Service providers had to create mechanisms to monitor without the violation of privacy. Service providers could co-operation if there were any suspicions.

Mr Madyibi said that MTN unreservedly supported any effective methods to combat CP. If the Bill was couched couched in such a way to help with investigations, then they were in full support.

Ms Van Wyk said that she sympathised with MTN as ISPs had presented a similar presentation in the morning. There were many ways to recognise images but these were very costly. She brought up the issue of cell phones in real time communications. Cameras on cellphones made it possible to transmit CP in real time.

Mr Madyibi concluded his comments by saying that the Interception Monitoring Act (IMA) implemented mechanisms to intercept shady practices. Mobile operators had moved in that direction. There were meetings with the Minister to implement the IMA. MTN was willing to help out when there was a reasonable suspicion.

Telkom Submission
Advocate Francois Slabbert (Specialist Legislation and Policy Development) said that they supported all the initiatives although the Bill had unintended consequences for telecommunication operators. They highlighted issues of the definition and possession. Mr Maphelo Mvunelwa (Specialist: Parliamentary Liaison Regulatory and Public Policy) said that if the Bill could be framed in the Deputy Minister of Home Affairs' words, then it would take everyone far. The IMA had consulted with the major industrial players to make the network interceptible, thus there were already obligations.

Discussion
Mr Chauke said that the issue of definitions had been mentioned by the other presenters. The commitment to come on board was positive. The details that had been raised would be looked at by the drafters because legislation was informed by the submissions received. He said that they would not leave out anything because different bodies supposedly covered them elsewhere.

Mr Mvunelwa said that Telkom did not register ISPs because they were not a regulatory body. Telkom just gave them access.

Adv Slabbert said that assistance to service providers to intercept was already in the IMA. There was a contradiction proposed in the Bill. The ECT Act excluded strict liability whilst the PFAB created a strict liability.

Standing Together to Oppose Pornography Submission
Ms Doreen Meissner said that they supported the amendments aimed at protecting children. She said that pornography was commonly found around rape and paedophile offenders. She proposed that the Film and Publications Board be expanded to include a law enforcement section to deal with complaints through a well-advertised route; that the public be better informed about the dangers of pornography, the Film and Publications Board be expanded to include broadcasting, clinics be made available for pornography addicts, restrictions on pornography and room made for syntax. She closed by saying that sensible legislation to protect children was paramount.

Mr Chauke thanked Ms Meissner for her presentation. There were many submissions presented and sent in. He said that members, advisors and drafters must look at the issues.

The meeting was adjourned.

Appendix
VODACOM SUBMISSION
1. INTRODUCTION

Vodacom would like to thank the Portfolio Committee of the Department of Home Affairs for the opportunity to make a representation on the Films and Publications Amendment Bill (published in GG 25421 on 1 September 2003). Vodacom fully supports the Bill's objectives, and in particular, the regulation of offences involving child pornography.

The definition of "publication" as set out in the Act is potentially applicable to the mobile data environment and in this context, Vodacom wish to make the following submission. We also highlight certain conflicting provisions of this Bill with the Electronic Communications and Transactions Act (no.25 of 2002).

2. COMMENTS

This submission will only focus on certain aspects of the Amendment Bill, as set forth below.

2.1 Ad definition of ('distribute" and section 8 of the Bill

The definition of "distribute" includes sell, hire, offer, keep for sale or hire of film or publication, and specifically includes handing or exhibiting and the failure to prevent access to a person under age of 18 years. We submit that the definition should not include the requirement to prevent access to a person under the age of 18 years. This requirement is also stated in section 27(c) of the Act as amended in section 8 of the Bill, and must also be deleted in section 8.

In the mobile cellular environment, where Vodacom have a customer base of over eight million people, it is difficult, if not impossible to determine the age of the majority of our customers. Only a small percentage of our customers are contract subscribers and could reasonably be expected to be above the age of 18 years that is the legally required age for contract formation. The majority of Vodacom's customers are pre-paid subscribers and there is no knowledge or information regarding the age of such customers.

It follows that the provision in relation to knowledge about the age of customers (i.e. below the age of 18 years or not) would pose an obligation on Internet Service Providers to know the age of such customers on each occasion, which would be impossible to implement from a physical and technological perspective.

2.2 New definition of ('distributed network"

The term, "distributed network" is used in the definition of "publication" and other sections of the Ad, but is not defined.

"Publication" means

(i) any message or communication, including a visual presentation, placed on any distributed network including, but not confined to, the Internet".

Vodacom submit that "distributed network" should be limited and should specifically exclude mobile cellular networks, since it would be impossible for mobile cellular networks to:

(a) identify the age of mobile customers and

(b) prevent access to the internet on the basis of age of the customer.

2.3 ECT Act

Vodacom would like to bring to the Portfolio Committee's attention that we are taking proactive steps by prohibiting the Wireless Access Service Providers (WASPs)1 from providing unlawful and illegal content to users of Vodacom's network. This is done by way of contractual provisions in Vodacom's contracts with the WASPs, whereby Vodacom's network may not be used for any illegal and unlawful services.

Chapter XI of the ECT Act provides that the liability of service providers is limited when acting as a mere conduit, caching, hosting and provision of information location tools on the basis of membership to an industry representative body and subscription to the industry code of conduct. Furthermore, should Vodacom receive any notification of an unlawful activity1 the provisioning of the WASP service on Vodacom's network will be stopped immediately.

Since the ECT Act clearly seeks to exclude liability for telecommunications service providers in specific circumstances (as mentioned above, e.g. a mere conduit or hosting), the provisions of this Bill seem to be in conflict with the ECT Act insofar as telecommunications service providers are not excluded from incurring liability when performing their duties in terms of the provisioning of the licensed telecommunications service.

The ECT Act states very clearly that a service provider is not liable for providing access to or for operating facilities for information systems or transmitting, routing or storage of data messages via an information system under its control, as long as the service provider-

(a) does not initiate the transmission;

(b) does not select the addressee;

(c) performs the functions in an automatic, technical manner without selection of the data; and

(d) does not modify the data contained in the transmission.

Vodacom proposes therefore that the above provisions be included in the Bill to ensure consistency with the ECT Act.

The above provisions of the ECT Act and specific role of mobile cellular network operators could be compared to the role of the Post Office, as a "service provider". The Post Office delivers mail to addressees without the knowledge of content of the letters, and does not incur liability of content but merely distributes it to the addressees.

3. CONCLUSION

We trust that the above comments will make a positive contribution to the Committee's deliberations and finalization of the Bill.