The draft Films and Publications Amendment Regulations 2020 (Regulations) which were recently published for public comment in South Africa, have significant implications for online distributors in their current form. The Regulations apply to the sale, hiring and streaming of content on various digital platforms in South Africa.

The Film and Publications Act (FPA) provides for, among other things, the classification of certain films, games and publications as well as overseeing the establishment of the Film and Publications Board (FPB) to administer the classification process and other matters. Following the growth of electronic communications, social media platforms and the availability of digital content, it was deemed necessary to extend the operations of the FPA to cater for the creation, possession, production and distribution of online content.

As a result, the Films and Publications Amendment Act 11 of 2019 (FPAA) was passed by Parliament and although it has been signed by the President, it will only come into operation on a still-to-be proclaimed date. The FPAA was heavily criticised as it made its way through the legislative process. Termed the ‘Internet Censorship Bill‘  in the context of the FPB’s attempt to regulate ‘harmful content’, commentators argued it was in contravention of the right to freedom of expression, as provided for in South Africa’s Constitution.

The FPAA Regulations now clarify some of these aspects under the FPAA and will replace the existing regulations of the FPA.

Registration requirements

In terms of the FPAA and the Regulations, all online distributors will be required to register with, and submit all content to, the FPB for classification. Alternatively, online distributors will have to apply to the FPB’s Council for self-classification accreditation or for approval to use the classification ratings issued by a foreign or international classification authority.