You’ve probably heard of the Film and Publications Board (FPB), a body responsible for classifying media content distributed in South Africa. If you’ve ever bought a physical copy of a game, you’ll no doubt have seen their logo and age rating on the packaging somewhere. While classification is typically a worthwhile activity, providing valuable information to consumers, the FPB have overstepped their bounds with a new draft policy that would give them far-reaching control over games distributed digitally and basically any “user-generated” content on the Internet.
Currently in draft stage and open for public comment, the Online Regulation Policy aims to increase the FPB’s mandate to classify and prohibit access to a broad range of online content by expanding upon the Films and Publications Act. While this is not entirely outside of what the FPB has been doing for years with physical media, the devil, as they say, is in the details.
You see, according to the definition of the new policy, any content that’s published online – a Facebook post, a tweet, a photo on Instagram – falls under their mandate as “certain publications”, which is to say anything other than a newspaper. Those posting said content are considered “distributors”. Distributors will need to register with the FPB prior to posting anything, and then every post needs to be submitted to the board for classification. The policy suggests that there’s a difference between distributors and the creators of “user-generated” content, and that the latter group won’t need to register with the FPB prior to generating content – but the policy doesn’t make it clear what separates distributors from user-generated content providers.
Far from being simply impractical, undermining the timely nature of online communication, and completely misunderstanding the value of online distribution, the policy introduces fears of overwhelming control and both pre- and post-censorship of online content. Content that is not submitted for classification can still be classified regardless, and “distributors” will be responsible for the subsequent cost.
The FPB can also, according to the policy, “dispatch classifiers to the distributors’ premises for the purposes of classifying digital content”. Essentially, if you post a family photo without classification – or even a screenshot on Steam – the FPB classifier can come a-knockin’ to view it and any other digital material you might have. Failure to remove content the board considers unacceptable can lead to criminal prosecution.
Some have indicated that the policy is unenforceable, but from a censorship perspective it doesn’t need to be. If policy allows you, legally, to censor a small minority of users, it’s still a problem. Should the policy come to pass, the easiest way to avoid issues is to simply stop “distributing” in South Africa. That means local YouTubers not wanting to classify their work, for example, would simply need to block locals from accessing their channel. Given the content originates from South Africa, however, even this may not be enough.
The FPB may not have any ill intentions with this policy – indeed, they stress that it’s aimed at protecting children from pornographic content – but as it stands it’s too broad, too vague and too reminiscent of a past South Africans have long abandoned in pursuit of a democratic and free society. Equally concerning are claims that the FPB are not responding to requests by industry bodies for formal discussion on the policy.
I decided to contact Nicholas Hall, currently chairman of Make Games South Africa and an associate at Michalsons (a specialist law firm focusing on areas such as ICT law, privacy and protection of personal information), to discuss the concerns and potential impact this would have on local game developers, and clarify some of the more finicky parts of the policy.
NAG: You’re no stranger to the FPB’s sometimes troublesome policies: last year, you expressed ambivalent feelings towards their adjusted tariff structures which, while opening the doors for other online distributors like Netflix, failed to adequately define what qualifies as an online distributor and increased licensing fees. The FPB has proposed this Online Regulation Policy document, which seeks to classify online content. As you’re in the active process of challenging the policy on behalf of MGSA, what are your primary concerns?
Nick Hall (NH): Yes, I’m currently drafting a written submission and hoping to be invited to make oral submissions challenging some of the provisions of the Online Regulation Policy.
I think it’s important to highlight some things before going into my concerns with the policy. First, this is a policy document, so it’s not the same as “law”. All the stuff that the FPB wants to do (as outlined in this policy) it can already do in terms of the existing Films and Publications Act and its regulations. This policy is simply showing how the FPB will implement the law.
Insofar as Make Games [SA] is concerned I’m actually quite happy with a lot of the policy; it’s proposing that we move to a self-regulated regime, which is a massive win for local developers and should make it a lot easier to rate content for local audiences.
However, the big concern for the majority of people is Section 7 which deals with the monitoring of “user-generated” content. It’s not explicitly defined as such, but this is any content created by an individual for a non-commercial purpose. What policy proposes is that this content does not need to be rated by the FPB prior to being uploaded to the Internet, but the FPB can “pull content” until it has been rated (when it can then be re-uploaded).
It’s important to note: technically the FPB can already do this legally, but getting around the issue of non-SA based platforms has always been an issue, and the FPB simply doesn’t have the capacity to deal with the amount of content (hence the move to self-regulation).
What is concerning about Section 7 to my mind is:
There appears to be no measures to prevent abuse of the system by the general public or government. Content creators could face severe losses if their stuff is arbitrarily pulled because a member of the public decided it was “inappropriate for children”.
The FPB has too much power to decide what is “inappropriate”, suffers no consequences for abusing the system, and ultimately could become a gatekeeper to content. Bear in mind that the members of the board are unelected, so we as the general public don’t really have a say who gets put in charge.
The line between “online distributor” and a person who uploads “user-generated” content is not very clear. There appears to be a lack of understanding about how YouTubers, for example, work. If I release a totally free game, does that make it “user-generated”? What if my content is available for free but I monetise through advertising? Is that still commercial? What about things like Patreon? Are those “commercial works”?
There is a deeper question on whether it is desirable to have a ratings board for things like photographs, art, books (all of which the FPB can rate if it wanted to) in a constitutional democracy.
NAG: This policy is tied to the Films & Publications Amendment Bill of 2014. In brief, could you explain what this bill entails and how it relates to the policy?
NH: I’m not aware of any Amendment Bill from 2014. The most recent Amendment to the Act happened in 2010, when the Act was amended to add definitions and process for the classification of games (previously they were treated the same as films). In 2014 Regulations where published which added new “forms” to be used with registering films, games, publications, etc.
[Quick note: I’ve searched repeatedly for the Films & Publications Amendment Bill of 2014, with little success. Nick has indicated that, while referenced in the policy document, it could be a typo (not unlikely, given the horrendous number of typos and spelling errors in the policy document) or potentially a piece of proposed legislation that is not yet available to the public.]
NAG: What classifies as “user-generated content”? Who would be required to sign up for classification?
NH: “User-generated” content is explicitly defined in the policy as “any publication as defined in Section 1 of the Act to include, inter alia, a drawing, picture, illustration or painting; recording or any other message or communication, including a visual presentation, placed on any distribution network including, but not confined to, the Internet”. However, earlier in the policy it goes on to talk about how only “commercial” content creators need to register with the board and have content pre-approved.
It seems that non-commercial content and user-generated content are intended to mean the same thing, but this isn’t applied consistently across the document, which is part of the problem. So if you commercially release games, films, music, drawings, pictures, illustrations or paintings, recordings or any other message or communication (so tweets for example), including a visual presentation — so PowerPoint presentations probably count, along with YouTube films — then you would need to register with the board. If it is non-commercial — although this distinction is not clear — then you wouldn’t need to register.
NAG: How does this impact local developers, mod creators, gamers participating on media platforms like YouTube and Twitch, and online distributors such as Steam? Does it extend to items such as game demos and mods generated by users for Steam Workshop?
NH: Let’s deal with the games first. Unless a local developer releases their content for sale on their own site, then they will actually be affected very little, as the distributors — Steam for example— will have the primary onus to make sure the game is classified though it is likely that Steam would push this onto the developers as part of the submission process. What’s important is that the possibility of self-regulation actually makes this very easy to comply with.
You as the developer of the game can give the game your own rating, provided you follow the guidelines laid out by the FPB and have registered with them to do this yourself. Twitch streamers and YouTubers likewise would probably need to register with the FPB but can also qualify for self-regulation (but this is only if they create content for “commercial” purposes). What’s interesting is that major players like Google are already taking steps to rate all their apps so will likely apply to the FPB to be self-regulated.
NAG: Should the policy pass, what does that mean for content published prior to the policy that hasn’t been rated or classified?
NH: Going forward that content would need to be classified, if it qualifies for classification.
NAG: Is it possible, should the policy pass, for local developers and content creators to continue making content and simply block access to the South African audience?
NH: Yes, the policy and Act only applies to content made available and consumed locally.
NAG: To be clear, does their residence in South Africa prohibit them from making content for anyone, regardless of location, unless it’s been classified?
NAG: I see there’s an option for the board to classify content and then charge for said classification if they deem it necessary to rate your content, regardless of its intended audience.
NH: This is also one of my big concerns with the policy as it stands, Since the board can, without penalty or consequence, decide to pull user-generated content and then bill the content creator for the classification, it could easily be abused to generate a lot of money.
NAG: How does the policy affect existing classification processes? Are there any positives to this Online Regulation Policy that might improve things for local and international developers, publishers and content creators interested in our market?
NH: The big positive as mentioned above is the allowance of self-regulation, which theoretically could allow the major international players to get easier access to our markets without worrying about having to deal with the local classifications board.
NAG: Wouldn’t the FPB be better off focusing on ensuring distributors have adequate systems and mechanisms to report content that’s illegal or doesn’t match existing classification guidelines? Should the FPB even have the authority to rate online communications?
NH: The move to self-regulation signals that the FPB is aware it doesn’t have the capacity to classify all the content that is being produced and so there is much talk of getting the distributors to play ball by putting such systems in place (most already do). The problem is these measures are already in place, and I would argue that existing laws (such as the Electronic Communications and Transactions Act, the Protection of Personal Information Act to name a few) already have ample processes and protections in place to remove undesirable content.
I’m not sure what the board believes classification will do, or how it will improve on these existing systems. I definitely believe the board’s powers currently are too broad. I do not understand how it can be seen as acceptable that a government department can have the authority and power to classify things like works of art, books and “communications”, regardless of whether it is online or offline. I must stress though, even if the policy is abandoned, the FPB still has the legal power to do these things. To change that we would need to amend the Films and Publications Act.
NAG: How does this differ from legislation? Does it impact the public’s available options for commenting and challenging the policy? Is there any legal requirement for the FPB to take on any suggestions – such as those being submitted by the Right2Know petition – from this round of public comment, or is it simply a way to be seen as being transparent and playing ball?
NH: As explained above, policy is how government decides to implement legislation, it is not legislation itself. Luckily the policy has been opened for public comment until 17th June 2015. This means that anyone can submit written arguments on what they don’t like about the bill. I’ve previously dealt with the FPB and to their credit they have taken our suggestions on board before. Whether they will take any public comments on board this time round remains to be seen.