Get ready for the Films and Publications Amendment Act

by Peter Grealy, Nozipho Mngomezulu, Karl Blom, Wendy Tembedza, Ziyanda Ngcobo, Carla Collett of Webber Wentzel

On 2 October 2019, the President ratified the controversial Films and Publications Amendment Act, which has been described in the media as the "internet censorship bill" (the Act). Although the Act is signed by the President, it will only come into operation on a future date to be declared by the President. Anyone who distributes content online should use this opportunity to ensure that their online activities adhere to the requirements of the Act.

Basics of the Act

The Act introduces significant changes to our law, including the regulation of harmful content and hate speech.  The Act affects persons that distribute online content and should be revised by businesses that conduct their activities online. The Act regulates commercial distributors of content (including people who distribute content online for commercial purposes) as well as non-commercial distributors (who distribute content for their own private use). The Act also places new obligations on internet service providers (ISPs) to remove and report certain content or be subject to a fine.

Any ISP who has knowledge that its services are being used for the distribution or hosting of content that incites imminent violence; propaganda for war; advocates hatred against a person or an identifiable group or amounts to child pornography must:

• immediately remove the content; and
• furnish the Film and Publications Board, or a member of the South African Police Services, with information of the identity of the person who published the prohibited​content.

A failure to do so could result in a fine not exceeding ZAR50 000 and/or imprisonment for a period not exceeding six months.

The Act also regulates content uploaded by social media users, bloggers and influencers. There are criminal penalties for distributing content that amounts to propaganda for war, incites violence or which advocates hatred against a person or an identifiable group or which amounts to child pornography.

In a welcome step, the Act criminalises the intentional distribution of private sexual photographs/films without the prior consent of the subject of such photographs and/or