Films and Publications Amendment Bill: proposed amendments arising from hearings

Meeting report

Opening Remarks

The Chairperson acknowledged the presence of the Acting Director-General of the Department of Communications. He however expressed concern about the prevalence of personnel in acting capacities within the communications portfolio. He pointed out that having the majority of personnel in the Department and its entities in acting capacities was problematic and the Committee ought to focus on redressing the issue at some stage.

Feedback on the Deliberations on the Films and Publications Amendment Bill

Mr Ndivhuho Munzhelele, Acting Director-General, Department of Communications, took the Committee through the presentation on feedback on the deliberations on the Films and Publications Amendment Bill. The feedback touched mainly on the four issues that the Committee requested the Department to deal with in the previous briefing in November 2016. These being around the final tariff structure related to the Bill, details about the protection of children, issues of subjectivity versus objectivity when dealing with children’s concerns and the relevant Socio-Economic Impact Assessment System (SEIAS).

A new tariff structure related to the Bill was work in progress and the Department was working with the Film and Publication Board (FPB) on its finalisation. The final tariff structure would come into effect subject to Films and Publications Board Council and the Minister’s approval. The Department was considering the alignment of tariffs and online distributors’ fees for physical distribution of films and games to the cost of classification, and the need to accommodate diverse businesses in relation to the size of their libraries. There was also need to identify categories that are exempted or pay a special fee for small releases; for example, Educational and Promotion of cultural activities and religion.

On the protection of children, Mr Munzhelele said that protecting and addressing risks faced by children on/offline continued to be a policy priority. Therefore, in this Bill the protection of children against potentially damaging images relates to the risks related to and faced by children on/off-line. More broadly, some of the regulatory policy children protection measures would relate to: preventing inadvertent and/or deliberate access to harmful content on/off-line by children; protecting the most vulnerable from potentially harmful content on/off-line content; increasing the awareness of online safety issues and steps to take to reduce risks for children; and the age verification systems to restrict access for under 18s to harmful content on/off-line

The protection of children and young people as an important policy and regulatory issue required forward-looking analysis, more effective and smarter approaches. Children continued to access harmful content offline and online, intentionally and unintentionally, and government has noted that little or no effort has been made to date by most porn providers to prevent children from accessing their content. Government was therefore working on addressing this challenge as there was sufficient expert opinion to the effect that exposure to harmful content can lead to distress or harm to people under 18.

Government and all other stakeholders take into account principles when formulating policies for the protection of children against harmful content offline and online. These include the empowerment of children and parents to evaluate and minimize risks and engage on online platforms in a secure, safe and responsible manner, identifying government bodies with responsibility and authority to implement these policy objectives such as the Independent Communications Authority of South Africa (ICASA), and integrating digital media literacy skills in schools curricula.

Mr Munzhelele also emphasized the need to capacitate the Film and Publication Board to enable it to effectively carry out its monitoring mandate.

On the issue of subjectivity versus objectivity when dealing with children’s concerns, he noted that within the protection of children against harmful research, there has been a deliberate move towards evidence based policymaking and engagement in socio-economic impacts analysis to ensure that the legislative frameworks were objective. Therefore government engages in research to screen out as much of the subjectivity as possible and ensure objectivity/reliability of findings by interviewing children, parents, industry and other experts; whilst at the same time engaging in socio-economic impact assessments that help develop a high-proof forward regulatory policy for the protection of children. Across the globe there is general consensus that even though this a difficult topic to study, there continues to be a need for further quality research “to evaluate the potential harmful impacts of sexualised media, advertising and products on children and young people” and on harmful content and its impact on children and young people over time, shaped by appropriate frameworks, particularly by a critical understanding of gender, inequality and aggression. When dealing with children’s concerns, there is ethical difficulties when it comes to interviewing children in relation to online pornography and never to ask a child directly about this unless that child raises it first. Research has also indicated that “the key drivers of behavioural change among children and young people are peer support and educative approaches, rather than simply legislative prescription”.  In this regard, the planned digital media literacy and related skills might assist children and young people in resisting online pornography and other risks. Effective age appropriate education/information and digital media literacy programmes may assist children and young people with critical reading and analysis to “know what constitutes wrong, reportable behaviour and to whom it should be reporte

Mr Munzhelele highlighted that a systematic approach to evidence-based policymaking was essential to determine policy priorities. Through the Socio-economic Impact Assessment System (SEIAS), the Department was able to detect that government regulatory policies and strategies to foster and ensure that off/online platforms safe for use by children were in their infancy. Therefore, the Department and FPB engage in quantitative and qualitative international comparative regulatory policy analysis to develop the empirical foundations and share information about national policy approaches to address children’s concerns and protect children.

In conclusion, Mr Munzhelele pointed out that the protection of children against harmful online/offline content is in the interest of society in general. The Department considers it of importance that the government and its regulatory agencies remains involved in the implementation of these protections within the limits of the Constitution and the protections of all kinds of freedom that have to be balanced against those rights and their protections. The Bill before the Committee has significantly improved and once passed the FPB will be able to implement it effectively

Amendments to Films and Publications Amendment Bill

Mr Tshegofatso Kgarabjang, Director: Legal Services, Department of Communications, took the Committee through the proposed amendments to the Bill.

Preamble

Mr Kgarabjang identified the substitution of Penalty Committee with Enforcement Committee in the preamble and the rest of the Bill. This was renamed because the name Penalty Committee created an impression that the powers of the said committee were limited to issuing penalties. However, the mandate of the committee was to enforce the Act thus it had to be referred to as an Enforcement Committee. The Act required all acts of non-compliance to be dealt with through the criminal justice system.

He said the term ‘digital games and digital films’ was replaced by ‘generic games and films’ as it was restrictive.  

He said that ‘accreditation’ was added to the line ‘to provide for accreditation of independent commercial online distributors by the Film and Publication Board’, and ‘industry classification’ was deleted. This was done to make a clear distinction between commercial and non-commercial distributors. The mandate of the FPB was exclusively the regulation of commercial distributors, however the Board could only intervene in non-commercial distribution provided there was a complaint.

He noted the addition of ‘international’ in the statement ‘to provide for foreign and international classification systems’. This is because the FPB will provide classification and accreditation for both foreign and international standards.

He also commented on the substitution of ‘advocating racism and hate speech’ with ‘propagating prohibited content’. The thinking was that prohibited content was not limited to advocating racism and hate speech but encompassed everything prohibited in line with section 16 of the Constitution.

Clause 1- Definitions

Mr Kgarabjang said that ‘artistic’ in clause 1(a) of the definitions was deleted as it was restrictive. The classification guideline will be used to determine artistic merit or conduct. 

He commented that the term ‘child pornography’ in clause 1(b) was retained regardless of the views expressed by some stakeholders who felt that the use of ‘child sexual abuse material’ would be more appropriate. There was need for the Films and Publications Act, a secondary piece of legislation, to align with the principal Act on Sexual Offences and Related Matters which uses the term ‘child pornography’, for consistency.

The definition of ‘harmful’ was inserted in clause 1(j) in recognition of a new offence - revenge porn. Victims of online revenge pornography would now have a basis for recourse.

The definition of ‘hate speech’ was inserted after the definition of “game” on clause 1(j). This was meant to make sure the Bill was in line with section 16 of the Constitution.

The term ‘online distributor’ in clause 1(m) was replaced by ‘online commercial distributor’ to clearly specify the mandate of the FPB.

He pointed out that ‘newspaper’ was deleted on clause 1(n) because transgressions may not only be done on print media but on social media and other platforms as well.

The Bill made specific provision for the recognition and accreditation of foreign and international classification authorities subject to terms and conditions thereof. The word ‘self-classification’ was therefore added to make provision for co-regulation within the communications industry.

The Chairperson sought clarity whether the Department had worked with the state law advisors, and ifwhat was being presented by the Department was agreed upon by both parties.

Mr M Gungubele (ANC) requested that the Parliamentary Legal Services take the Committee through the technical aspects of the presentation before Members asked questions.

Ms Phumelele Ngema, Parliamentary Legal Advisor, asked for clarity on the definitions. She pointed out that what the Department was presenting were proposals due for consideration by Members. She however expressed concern that the Bill seemed to be restricted to the regulation of online publications whereas the principal Act, in its entirety, was broad. For instance, the use of the term ‘published using the internet’ excluded other forms of media such as print as envisaged in the principal Act. The Bill was an amendment of the principal Act and it was important to ensure that amendments did not dilute the Act and create a vacuum on aspects the principal Act had covered. The possible dilution of the principal Act by the proposed definitions on the Bill was an issue that had to be looked into.

Mr Gungubele expressed concern that there was no demonstrable response to the Committee’s call for an aligned presentation. Members were politicians, not legal experts thus the technical framing of definitions and terminology was the duty of technical people to handle. The Committee was meant to deal with views being proposed, the substantive aspects of the Bill not technical legalities. He also commented that issues raised by Ms Ngema gave an impression that the Department and other legal advisors did not meet to discuss the technical aspects of the Bill.

The Chairperson agreed that the approach by politicians and legal experts were different, therefore the legal aspects of the Bill were to be ironed out between the legal advisors. He then asked Ms Ngema to make comments on that.

Ms Ngema responded that the Department and the State law advisors including herself had met to discuss the Bill. The meeting, in the broader scheme of things, addressed legal and constitutional issues raised by the public as well as among themselves. However, the draft that was before the Committee constituted proposals that the Department made in response to issues raised by the Committee in the previous meeting. Technical issues would still arise as the deliberations were a legal process which must follow all the legislative requirements and rules as stipulated in the Constitution. There was nothing that the Department and legal experts could do outside the Committee processes, even the technical aspects of the Bill. 

Mr Gungubele commented that in his understanding the legal personnel were meant to assist Members, who are not experts but politicians. He recalled that when a number of legal issues were raised in the previous meeting, the Committee directed the Department and the legal advisors to look into them through the articulation of contradictions and misalignments. This was meant to help the Committee in decision-making.

Ms N Tolashe (ANC) agreed that the Committee had directed the Department and the legal teams, after legal issues were raised in the previous meeting, to sit together and iron them out before tabling the proposed Bill.

The Chairperson further asked whether it was due process for Ms Ngema to raise legal issues such as problems with definitions when the Committee had directed the Department and the legal advisors to iron them out prior to the current meeting. He also asked why the Department had not addressed Ms Ngema’s concerns during their engagements.

Ms V Van Dyk (DA) asked why Annexure B (The Final Impact Assessment) was not presented first as there were a lot of issues directly linked to the Bill. Annexure B was just given to Members but it should have been presented before Annexure C (Discussion: Films and Publications Amendment Bill).

Mr M Kalako (ANC) commented that the Department may have met with legal services but what might have happened was that there were some disagreements between the two parties; hence Ms Ngema was raising these differences for the Committee’s attention. Therefore, the Committee had to offer guidance and move forward.

Mr R Tseli (ANC) commented that it seemed as if the current meeting was between the Department and Ms Ngema, and that was problematic. If there was supposed to be a meeting between the Department and legal services, it must not take place during Portfolio Committee proceedings.

The Chairperson commented that legal services was correct in raising their differences with the Department as they were meant to be addressed by the Committee. He pointed out that the Committee and legal services were one institution and there was need for the Committee to be aware of the issues. He acknowledged that the process was tedious and may take more than one meeting.

Mr Tseli suggested that the Committee allow the Department to finish up the presentation before it asked questions, and Ms Ngema give her legal opinion as they may be issues beyond clause 1 of the Bill. Further, he was confused by the amendment in the preamble from ‘Penalty’ to ‘Enforcement’ Committee. Lastly, he asked which government subsidy the Department was referring to on Annexure A.

Ms W Newhoudt-Druchem (ANC) commented that the Committee would have preferred to have the legal services’ submissions by Ms Ngema on paper for ease of comparison with the Department’s proposed amendments to the Bill. 

Ms Van Dyk sought clarity on the use of the term ‘electronic media’ in clause 1 (d). She commented that ‘electronic media’ was broad and there was need for specification. In addition, the term ‘internet’ was too broad as it could mean the infringement of people’s privacy, which was unconstitutional. She agreed with the use of the term ‘hate speech’ in clause 1 (j), as it was in line with international standards, but said it could be more prudent to wait for the finalisation of the Department of Justice Bill that defines ‘hate speech’ to avoid any discrepancies.

Mr Gungubele highlighted that the issue of tariffs was tied in with questions on societal prosperity, from an economic point of view. There was therefore need for some balance. He was a bit confused by the statement ‘foreign and international classification’ in the preamble. He asked what was materially served differently by the terms ‘foreign’ and ‘international’. He also queried whether the Bill defined ‘child pornography’ within international vocabulary, because there was need for universality.

The Chairperson asked for further inputs from Ms Ngema before the Department could respond to questions from Members.

Ms Ngema commented that the Department needed to clarify whether their definitions, such as ‘hate speech’ were in line with what was promulgated in the principal Act. She also queried that most of the Department’s definitions gave the impression that amendments were just focusing on online publications.

Mr Kgarabjang responded to concerns that the Bill seemed to restrict itself to online publications. He noted that the Bill covered all forms of media that disseminate information, including print. The Bill uses the term ‘prohibited content’ which covers all content outlined in section 16 of the Constitution.

On Ms Van Dyk’s concern that the Bill should wait for the finalisation of the Justice Bill,  he noted that state law advisors involved in the drafting of that legislation were consulted on the definition of ‘hate speech’ and they expressed no reservations on the Department of Communications’ definition of ‘hate speech’.

Responding to Mr Gungubele’s question on the use of the term ‘child pornography’, he commented that the definition was in line with the Sexual Offences and Related Matters Act, the primary Act.

In response to the question on the rationale behind ‘foreign and international classification’, Mr Kgarabjang made reference to section 39 of the constitution which guides the application of foreign and international law. Foreign laws could be laws of neighbouring countries whereas international laws were those of countries such as the United States.

Members gave a sense that they were not convinced by the explanation given on the difference between foreign and international law.

On whether the Bill was restricting itself to online content, Mr Munzhelele made it clear that when the principal Act was promulgated in 1996, it did not identify online material as communication technology had not yet developed to its current level. The Bill was therefore adding another layer on the regulation of online content as there was a gap in the principal Act, it will not only focus on online content but other forms of platforms as well.

Mr Lufuno Nevondwe, Council Member, FPB, responded to Mr Tseli’s question on the renaming of the Penalty Committee to Enforcement Committee. The Enforcement Committee will be new and appointed by the FPB Council. It will specifically deal with issues pertaining to non-compliance with the Act. However, there will be checks and balances through the Appeals Board that will be recourse for individuals not satisfied by decisions made by the Enforcement Committee.

Mr Tseli disagreed and said Mr Nevondwe’s explanation on the renaming of the Penalty Committee was not assisting. It was a contradiction to state that the Enforcement Committee was new, because in line with clause 6 of the Bill, what was new was the name- from Penalty Board to Enforcement Committee. He also noted that it was incorrect to say that individuals could seek recourse with an Appeals Board when in actual fact the Appeals Board had been removed in clause 6 of the Bill.

Mr Nevondwe responded that the Enforcement Committee was new and appointments were no longer made by the Minister as initially proposed, but by a Council within the FPB.

On the question on tariffs and government subsidy, Mr Munzhelele commented that the Department had its own budget and revenue generating ventures that enabled it to cover costs. He indicated that the Department was reviewing its tariff structure and charges on online content distributors.

Mr Mongameli Kweta, State Law Adviser, Department of Justice, commented on clause 1(s) that defines ‘publication’. The unintended consequence is that ‘publication’ excluded all other forms bar those published using the internet. Therefore there was need for the Department to correct and align the definition of ‘publication’ with the one in the principal Act.

Ms Ngema agreed that the definitions clause had to be revisited.

Ms Newhoudt-Druchem sought further clarity on the difference between foreign and international as outlined in the definitions clause. According to her understanding, anything online or in the cyberspace did not have borders.   

Mr Kweta tried to clear the air by explaining the difference between foreign and international laws. He noted that the Constitution did highlight the difference. International law comes in when there is a bilateral agreement between two countries whereas foreign law pertains to laws from other countries in general.

Mr Gungubele understood why the Department used the term ‘child pornography’. However, if in the Department’s knowledge there was an international definition, are there no contemplated processes to advise those dealing with the principal Act to align the terminology with international standards?

Clause 5

Mr Munzhelele said that clause 5 was a revision of section 4a of Act 65 of 1996 in order to empower the FPB Council to make determinations regarding the accreditation of foreign and international classification systems. He pointed out that the terms of classification were limited to a maximum of six years, broken down into two terms. This was meant to guard against complacency and passivity.

The Chairperson queried the rationale behind the deletion of section 6 of the principal Act on clause 5.

Mr Nevondwe clarified that the Act stated that the Minister was to make Penalty Committee appointments.  However, upon consultation, stakeholders felt that the Minister had to be stripped of such powers and appointment powers be vested upon the FPB Council instead.

Clause 6- Powers and duties of Enforcement Committee

Mr Kgarabjang explained the deletion of amount R150 000 in clause 6B (d) (i), relating to the imposition of fines. The amount was deleted because fines were subject to revision from time to time.

Clause 16- Functions and powers of compliance officers

Mr Kgarabjang said that the clause was revised in order to make provision for compliance monitors to seek assistance from South African Police Services when conducting their duties, and to ensure that the right to privacy was protected.

Clause 19

Mr Kgarabjang pointed out that clause 19(d) was deleted because upon consultation with state law advisors and the public, it was felt that the FPB’s roles were now encroaching into ICASA’s mandates.

The Chairperson wrapped up the discussion and advised that there had to be another meeting soon to discuss the rest of the documents.

The meeting was adjourned.