Only once in a while does an Internet censorship law or regulation come along that is so audacious in its scope, so misguided in its premises, and so poorly thought out in its execution, that you have to check your calendar to make sure April 1 hasn't come around again. The Draft Online Regulation Policy recently issued by the Film and Publication Board (FPB) of South Africa is such a regulation. It's as if the fabled prude Mrs. Grundy had been brought forward from the 18th century, stumbled across hustler.com on her first excursion online, and promptly cobbled together a law to shut the Internet down. Yes, it's that bad.
But don't just take our word for it—read some of its provisions for yourself. First, the regulation applies, in the first instance, to films and games (regardless of subject matter), as well as to publications containing certain loosely-described forms of sex, violence and hate speech. As to these types of content:
5.1.1 Any person who intends to distribute any film, game, or certain publication in the Republic of South Africa shall first comply with section 18(1) of the Act by applying, in the prescribed manner, for registration as film or game and publications distributor.
5.1.2 In the event that such film, game or publication is in a digital form or format intended for distribution online using the internet or other mobile platforms, the distributor may bring an application to the Board for the conclusion of an online distribution agreement, in terms of which the distributor, upon payment of the fee prescribed from time to time by the Minister of DOC as the Executive Authority, may classify its online content on behalf of the Board, using the Board's classification Guidelines and the Act …
If you are a video blogger creating films from your basement, the prospect of FPB officers knocking on your door to classify your videos probably isn't that appealing. So, being the forward-thinkers that they are, without actually providing an exception for user-generated content (or a sensible definition of it), the FPB provides an alternative system which places the burden of classifying such content onto Internet intermediaries:
7.5 In the event that such content is a video clip on YouTube or any other global digital media platform, the Board may of its own accord refer such video clip to the Classification Committee of the Board for classification.
7.7 Upon classification, the Board shall dispatch a copy of the classification decision and an invoice payable by the online distributor within 30 days, in respect of the classification of the content in question.
A few definitions are in order here: an “online distributor” could be a South African ISP, which might have no connection with the “global digital media platform” that actually hosts the content. Nonetheless, the ISP is assumed to have the capacity to take down the original video, and to upload a new, classified, version containing the FPB's logo:
7.10 The online distributor shall, from the date of being notified by the Board in writing of the classification decision, take down the unclassified video clip, substitute the same with the one that has been classified by the Board, and display the Film and Publication Board Logo and classification decision as illustrated in clause 5.1.6.
Oh, but it gets worse. Since classification rules already apply to offline films, games and proscribed publications, the regulation purports to be doing nothing more than to be extending the classification scheme to online versions of those materials, so that anyone distributing them over the Internet also has to obtain a license to do so. But then there's this:
7.4 With regard to any other content distributed online, the Board shall have the power to order an administrator of any online platform to take down any content that the Board may deem to be potentially harmful and disturbing to children of certain ages.
That's right, any online platform can be ordered to take down any content distributed online that the Board may deem to be potentially harmful and disturbing. Traditional publishers are subject to no such sweeping, extrajudicial censorship power.
What kind of content might we be talking about here? Much of the preamble of the document talks about sex. Indeed, sex sells, and it sells censorship legislation as well as it sells cigarettes and soft drinks. However the regulation, even on its face, goes much further. Its background section gives an example of non-sexual videos that, even under the current law, were issued a classification by the FPB—videos depicting a Pretorian pastor “ordering members of his congregation, some of whom were minors, to graze like cattle and drink petrol to prove that humans can eat anything provided by God”. Under the new proposed regulation, the FPB could simply order such videos—which are obviously newsworthy—to be removed from the Internet.
“Draconian” is a word that we use quite often on Deeplinks, but by any standard of draconian, this proposed regulation is it. It bears all the hallmarks of being the response to a wish-list from a single, puritanical special interest group, without taking the other broader free speech rights of the public into account.
Thankfully, section 195 of the South African Constitution does direct the public administration that “People's needs must be responded to, and the public must be encouraged to participate in policy-making”, and in accordance with this directive, the proposed Draft Online Regulation Policy has been opened for public comment, which remains open until July 15. Local groups like Right to Know have already been mobilizing against the proposal, and are collecting supporters for a petition and social media campaign, which EFF heartily endorses.
South Africa is one of Africa's largest and fastest growing economies, and for it to adopt such an extreme preemptive Internet censorship regulation would be a serious setback for South Africa's burgeoning online industry, as well as, needless to say, a serious blow to human rights. If you are South African, or have any friends or colleagues who are, please take action by signing the Right to Know petition, and spreading the word about this looming threat.