COMMENT

Humans are innately wired for progress; it’s in our evolutionary DNA. But history shows that often much is sacrificed in the name of advancement. At the start of the second industrial revolution, few would have predicted that burning fossil fuels would have such deleterious effects on our environment.

Enter the digital revolution and its dynamic that pits the hard-won right to freedom of speech against the imperative for social cohesion and the protection of personal dignity. It’s the age-old debate in democratic nations about balancing rights and responsibilities. 

The penetration of new technologies and the reliance on digital forms of information and entertainment in South Africa is undeniable. In the first quarter of 2020 daily newspaper circulation declined by 14% over the previous year and weekend newspapers declined by 17%, according to the Audit Bureau of Circulation of South Africa. 

At the same time, according to statistics from the DataReportal, cell phone connections in South Africa increased by 3.1-million between January 2019 and January this year to 103.5-million. Internet penetration stood at 62% (an increase of 3.1% year on year) and social media penetration at 37% (an increase of 19% year on year). 

Media convergence sees consumers opting to get their news, information and entertainment online. At the same time a significant power shift has occurred. The gatekeeper role of curated information, once held by traditional media, is dissolving because citizens now have the ability to share their opinions far and wide on social media. 

Enter a new debate: fact versus fake news. (A certain high-powered state leader on Twitter is a prominent case in point.)

In South Africa, our Constitution has won global acclaim for its ability to balance rights and responsibilities. Our legislation and regulations take their tenor from this solid basis. The Films and Publications Amendment Act of 2019 (FPAA) is no different; it recognises that no right can be absolute in as far as it holds the potential to infringe on a contrasting right. For example, the freedom of one citizen to express their opinions online has come into conflict with the rights of fellow citizens when these opinions constitute hate speech. And the right of a child to not be exposed to content of an adult nature comes up against uncontrolled posting of sexually explicit images on cell phone applications. This balancing act between rights and responsibilities is not a simple equation because of the diverse and nuanced nature of human existence. 

In recent weeks a draft set of regulations developed to align with the Amendment Act have been published for public and industry comments, after it was assented to by the president in September 2019. The Amendment Act and the regulations, once finalised, will come into operation simultaneously. 

In the wake of this new legislation designed to protect us, articles and social media posts have proliferated. These misrepresent the legislation’s intention and its consumer protection elements, which goes to the heart of the Act.

The intent of the Act has always been to ensure that citizens are protected from content in films, games and publications that could cause them moral, emotional or psychological harm. Precepts of the Act, and the regulations that implement them, create that fine balancing act between the rights and responsibilities of citizens. The Amendment Act brings the law in line with advancements in digital technologies to protect against harmful content online. 

Censorship versus classification

Often accused of being a law that seeks to censor, this misunderstanding stems from opponents not taking into consideration the mechanism by which content is mediated. It overlooks the fact that, in a democratic South Africa, we do not ban content unless the content is unlawful and damages social cohesion in the country through, for example, hate speech, incitement of imminent violence, propaganda for war and child pornography. This unlawful content is set out in the Constitution, to which the Amendment Act is aligned.

The Act activates a system of consumer advisories to provide the public with advance knowledge of the types of content they are likely to encounter in a film or game. The content is not banned or censored unless it contains illegal content; it is allocated a consumer advisory prior to distribution. This is an important and fundamental distinction.

The process of the classification of content is informed by classification guidelines that are used to assign ratings and classifiable elements to every film and game prior to its distribution in the country. Using this consumer advisory as a guide, the public chooses what content they or their children are exposed to. The guidelines are subjected to a substantive review and to public scrutiny every five years to ensure alignment to new laws and new child development theories so that they correspond with social values and the best interest of citizens. 

An age rating, for example, alerts a parent that the content might cause developmental, emotional or psychological harm to their children under that age. An “SV” element warns survivors of sexual violence that the content may trigger their previous trauma. A “P” element warns of prejudicial themes against religious, racial and interest groups. The classification guidelines also take into consideration the artistic or pedagogical intent of the creator and the effect of the format in which the content is distributed (for example cinema or DVD).

Films and games distributed by a person who runs the business of such are classified before legal distribution can take place. The Act allows the public to lay a complaint against or object to any publication (except for newspapers, magazines and broadcast content, which are regulated by other bodies) such as a book, play or piece of art. This content is then assigned a classification retrospectively.

The Act affirms that commercial digital content, distributed on online platforms such as Over-The-Top and Video on Demand falls into the ambit of its pre-classification for legal distribution. 

Commercial digital content and social media

Another common misperception is that the Act seeks to control social media content. Although the content shared on social media does potentially contain content that can cause harm, the Act does not relate to social media generally. It does, however, make inroads into protecting the public from specific types of social media content that directly harms the dignity of a citizen. This content is referred to in the Act as revenge pornography and aims to provide recourse for survivors of cyberbullying perpetrated online when intimate images are shared without the consent of the person depicted in the content. 

Prior to the Act being signed by the president, a distributor of physical content (cinema-style exhibitions, DVD and CD) needed to ensure that the content is assigned an age rating and element classification before it is distributed. Mechanisms are now being put in place through the Act’s draft regulations to provide greater clarity and direction on how content that is distributed online for commercial gain is classified. This gives the public the option to consume content or not, based on the consumer advisory that is assigned to the online content.

This amendment to the law now places it beyond doubt that viewers of online commercial films and games will be protected through consumer advisories in the same way that they have been protected from content distributed through traditional methods previously. The onus is placed on the distributor of such online content to ensure that a classification rating is assigned and displayed when content is viewed. 

Importantly, this excludes content that is not shared for commercial gain online and on social media platforms.

The nature of online distribution channels is vastly different from traditional distribution channels. The Film and Publication Board is consulting the creative and distribution industry to simplify the process of classifying commercial online content. This includes the possibility for these online service providers to self-classify based on South Africa’s classification system or applying for the accreditation of a recognised and aligned international classification system. 

Better safe than sorry

Reflecting on other advancements in humanity’s relentless quest for progress that have resulted in positive and disastrous effects on society, proactively trying to counter such negative effects makes good sense. 

The chicken-and-egg debate about South Africa’s high rate of violence vis-à-vis the type of content we consume illustrates the question of the effect of content consumption on the population. Does our content reflect our social values and mores or does immersion in such content normalise violent actions? Equally, we see the devastation caused by cyberbullying, which harms the victim’s personal dignity or, in its most extreme form, leads to suicide.

Should we as a nation rather be safe than sorry?

At the Film and Publication Board, Lynette Kamineth is communications and public education manager, Laurie Less is shared services executive and Pandelis Gregoriou is manager of legal and regulatory affairs