SUMMARY OF SUBMISSIONS ON FILMS AND PUBLICATIONS AMENDMENT BILL

A. Internet Service Providers Association

The definitions of "distribute" and "possession" should be redrafted, as they are too broad.
Clause 8 of the Bill that seeks to amend Section 27 of the principal Act is too broad. Especially Clause 8(a) of the Bill should be deleted as the ECT Act has already addressed the liability of ISP's.

B. MTN

The definition of ISP's in the Bill is too broad and it ought to be narrowed.
Mobile operators find it practically impossible to deal with content and have to respect the privacy of its customers.
The Bill creates the impression that cell operators would be liable as certain definitions seem very broad i.e.: "distribute", "possession" and phrases like "failure to take reasonable steps".

C. Cell C

Supports the Bill but also feel that it creates unintended consequences that will impose liability on all telecommunications service providers.
Specific concerns are that the definition of "distribute" and "ISP" are too broad.
Some requirements of the Bill may conflict with the Regulation of Interception of Communications and Provision of Communication related Information Act (Act 70 of 2002).
They also feel that certain requirements of section 27 (a) may conflict with the Act 70 of 2002.

D. Vodacom

The definition of "distribute" is to broad and esp. reference to "failure to prevent access to a person under 18 years" should be removed.
The Bill refers to but does not define "distributed network".
The Bill seems to clash with the ECT act in that it creates liability for telecom service providers when performing their duties, whereas the ECT act clearly seeks to exclude liability of telecom service providers in specific circumstances eg a mere conduit or hosting.

E. Telkom

1. Telklom supports the intent of the Bill but agrees with MTN and ISPA that the Bill creates unintended consequences as certain definitions are very broad i.e.: "distribute", "possession" and phrases like "failure to take reasonable steps".
2. Legislation prevents service providers from monitoring content.

F. ICASA

The Authority has developed a code of conduct for broadcasting services and the authority is the only Constitutionally recognised body for the regulation of broadcasting in SA. In this context the Authority is concerned that the proposed amendments to section 7(c) and 29 (1) of the principal Act, insofar as they refer to broadcasting, may erode the Authority's Constitutionally protected role with regard to the regulation of broadcasting content. Accordingly, the Authority requests that references to broadcasting in these two sections are removed in order to avoid confusion and an overlapping of functions between the two statutory bodies.

G. FXI (Freedom of Expression Institute)

The FXI are of the opinion that some proposed amendments unreasonably infringe the right to freedom of expression. Due to certain circumstances they cannot elaborate in their submission but say that they are in full support of the NAB written and oral submission.

H. STOP (Standing to oppose pornography)

The group supports the amendments that aim to protect children.
The FPB should be expanded to include a law enforcement arm.
The public should be informed of the dangers of pornography.
One parastatal should be established to deal with publications and TV broadcasts. Violence and sex on TV is a cause for concern as it is harmful to children and the code of conduct of the licensing authority should be amended to give it clout to deal with offences.
A phone line should be established to measure public tolerance as complaints to the FPB must be in writing at present and all public hearings are only in Gauteng.
A clinic for porn and sex addicts should be established.
A sin tax on porn should be implemented.

I. National Association of Broadcasters

Remove "broadcasts" from the following provisions of the Bill: 8(a)(iv); 11(1); 12(d), as it appears twice in Clause 7 (b) and (c) of the Bill.
Add the exemption from registration requirement for broadcasters in Clause 4(a) of Bill, to make it consistent with Section 23(3) of the Act.
Do not remove child pornography provision from Schedules 1 and 6. It is part of the classification criteria.
Do not add race, gender and ethnicity to Schedule 10. It affects broadcasters insofar as section 26(4) prohibits broadcasters from broadcasting XX material as in Schedules 6 and 10. If this cannot be done, then remove the reference to Schedule 10 from Section 26(4).
The fourth category in Schedule 1 and 6 should read as follows to make it Constitutionally defendable: "explicit sexual conduct that promotes hatred that constitutes incitement to cause harm against the dignity or gender of a person".
Do not add section 17(4) in its new form as introduced by Clause 3 of the Bill. It amounts to censorship, which did not even apply directly under the 1974 Act, except where so ordered by a committee.
Do not implement Clause 13: the extra-territoriality provision is impossible to apply and even the permission of the DPP would not grant sufficient protection according to the Constitutional Court.
Do not implement the repeal of the proviso of Section 20 of the principal Act. This will remove a practice of 23 years.
Do not implement the fining system for the FPB.
Implement the definition of child pornography that the Constitutional Court has developed in its De Reuck judgment.
Remove the exclusion of art from Schedules 5 and 9 as the Constitutional Court has recognised the art defence even in child pornography cases.