The Angriest I have been this week
What the fuck is this? I have to answer to someone before i create something? No no no. Read this. and tell me how bullshit this is. there's a comments section at the bottom. This is real.
GOVERNMENT GAZETE NOTICE FOR PUBLIC COMMENT
REPUBLIC OF SOUTH AFRICA
I, NFT Mpumlwana, hereby publish for public omment, the Draft Online Regulation
Policy developed under section 4A of the Films and Publications Act, 61 of 196, as
amended.
Any person who wishes to submit representations or comments in conection with the
Draft Online Regulation Policy is invited to do so within 90 (ninety) days from the
date of publication in the Government Gazete and by no later than 16h0 on the last
day. Comments received after this time may not be considered.
Hand deliver to: The Film & Publication Board
ECO Glade 2, 420 WITCH HAZEL AVENUE
Centurion, 1609
Atention; Tholoana Ncheke
OR E-MAIL TO: policy.submisionsfpb.org.za
A copy of the Draft Online Regulation Policy is also available fre online at
www.fpb.org.za
This gazette is also available free online at www.gpwonline.co.za
STAATSKOERANT, 4 MAART 2015 No. 38531 3
GENERAL NOTICES
NOTICE 182 OF 2015SCHEDULE
1. The Film and Publication Board (Board) is apublic entiy of the Department of
Communications, established in term of the Films and Publications Act 65,
196 (as amended in 204 and in 209).
2. The mandate of the Board can be summarised as folows:
2.1 To regulate the creation, production, posesion and distribution of ilms,
games and certain publications by way of clasifcation;
2.2 To protect children from exposure to disturbing and harmful material and
from premature xposure to adult material; and
2.3 To criminalise child pornography and the use and exposure of children to
pornography.
3. Section 18(1) of the Films and Publications Act requires any person who
intends to distribute any film or game and certain publications in the Republic
of South Africa first o register with the Board and to submit o the Board for
examination and clasifcation such film, game or publication.
4. Although the curent legislation is not platform-specifc, the Board's
compliance and clasifcation activites have over the year focused more on
physical platforms and les on the online space, resulting in children being
exposed to unclasifed content acesed through the internet and other mobile
platforms.
5. Media convergence -a new technology trend enabled by the digitsation of
media content, the widespread availabilty of high-sped broadband
This gazette is also available free online at www.gpwonline.co.za
4 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 2015conections, and the proliferation of Internet-enabled devices has fundamentaly
transformed the way media content is distributed and consumed. Consumers can
now aces media content acros geographic boundaries, anytime, anywhere,
and however they want it.
6. Section 4A of the Act empowers Council, in consultation with the Minister, to
isue directives of general aplication, including clasifcation guidelines, in
acordance with maters of national policy that are consitent with the purpose
of this Act. Thus on 16 October 2013 Council resolved to enact an Online
Regulation policy that would isue directives on how the Board must clasify
and regulate the distribution of online content in the Republic of South Africa to
ensure cyber safety of children and that children are protected from disturbing
and harmful content aces through social media nd mobile platforms.
7. Against his background, in order to give fect o the Act, Council in
consultation with the Minister of Communications, Ms Faith Mutambi ntends
to adopt he atached Draft Online Regulation Policy.
8. The purpose of the Policy is to ensure that clasifcation and compliance
monitoring focuses on media content, rather than on platforms or delivery
technologies.
This gazette is also available free online at www.gpwonline.co.za
STAATSKOERANT, 4 MAART 2015 No. 38531 59. This Policy is also available for fre online at www.fpb.org.za
Anexure
Anexure 1 EXPLANATORY MEMORANDUM
ON THE DRAFT ONLINE
REGULATION POLICY
Anexure 2 The Draft Online Regulation Policy
Mrs. NFT Mpumlwana
Council Chairperson
Film and Publication Board
This gazette is also available free online at www.gpwonline.co.za
6 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 2015GOVERNMENT GAZETE NOTICE FOR PUBLIC COMMENT
REPUBLIC OF SOUTH AFRICA
EXPLANATORY MEMORANDUM ON THE DRAFT ONLINE
REGULATION POLICY TO BE ADOPTED BY COUNCIL IN TERMS OF
SECTION 4A OF THE FILMS AND PUBLICATIONS ACT, 65 OF 196, AS
AMENDED.
Contents
1. BACKGROUND 1
2. POLICY DEVELOPMENT CONTEXT 2
3. PROBLEMS WITH THE CURENT FRAMEWORK 5
4. KEY FEATURES OF THE DRAFT ONLINE POLICY
5. POLICY CONSULTATION PROCES 9
6. CONSULTATION PARTICIPANTS 9
This gazette is also available free online at www.gpwonline.co.za
STAATSKOERANT, 4 MAART 2015 No. 38531 71. BACKGROUND
This is the first policy developed to create aframework and give fect o the Films
and Publications Act, 65 of 196 (the "Act"), as amended in relation to online content
distribution in the Republic of South Africa. The Draft Online Regulation Policy once
adopted wil bring about acomprehensive and fundamental transformation for online
content regulation in the country and for the first ime, industry, civil society and the
Film and Publication Board ("FPB") wil join hands and share the cost and
responsibilty for digital content clasifcation and compliance monitoring to ensure
that children are protected from exposure to disturbing and harmful content. For al
intends and purposes, content includes films, games, publications and self generated
content uploaded or posted on social media platforms.
Prior to the development of the Draft Online Policy, the FPB consulted extensively
with industry, civil society and key stakeholders. What came out of these
engagements and consultations was that, in the context of ever greater convergence of
media technologies, platforms and services, and more media being acesed from the
home through high-sped broadband networks, the ned for acomprehensive review
of clasifcation laws and regulations became aparent. In keping with these findings
the FPB in 2013 amended its Regulations to the Act which became operational in
February 2013 and recently finalised the review of the Films and Publications
Amendment Bil 2014. The review of the Regulations to the Act was predicated on
the realisation that although the Act provides for platform neutrality in its aplication,
the Regulations to the Act were ambivalent in relation to the proces for clasifcation
of digital content.
1
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8 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 20152. POLICY DEVELOPMENT CONTEXT
Since March 2012 the FPB has ben in discusions with some of the major
distributors who requested the FPB to come up with asolution which would enable
them to distribute digital content in the country without risking contravening the Act.
For example, one of the six major distributors curently distributing digital content in
the country indicated to the FPB that as at he nd of April 2012, it had sold 10
milion ipads, in its aps tores in 15 countries worldwide, of these only thre
including South Africa did not have gaming aps. The distributor further indicated
that as at he nd of March 2012 it had developed in exces of 70 00 aps, of which
more than 10 00 of them are gaming aps. Furthermore, 435 milion store acounts
have ben opened, indicating the level of take -up by consumers of its ervices. On
average, the distributor indicated that one consumer downloaded 10 aps and that 35
bilion aps have ben downloaded since launch of the service.
Although at he time the FPB was not specifcaly provided with statistics relating to
the South African situation, industry trends in South Africa show an increase in the
use of portable devices for gaming and social networking, and the xpected bom in
online gaming over the next few years. While these are positve developments and
wil be conomicaly beneficial for the country, the downside to this is that here is
also aproliferation of ilegal content in and the abuse of social media platforms which
are at imes used by sexual predators to lure their child victims and people who
advocate racist ideologies and therefore use these platforms to undermine the
government's agenda on social cohesion. This was further confirmed during the FPB
public awarenes and education campaigns wherein parents, learners and society at
large raised concerns about he rise of self generated content, most of which involved
schol earners engaging in sexual activites and uploading images or video fotages
thereof on Facebok, Twiter, You-Tube or distributing same amongst heir pers
using mobile phones and similar devices.
2
500707—B This gazette is also available free online at www.gpwonline.co.za
STAATSKOERANT, 4 MAART 2015 No. 38531 9The key concern for these parents and learners was that whilst here is aned for
adults to be fre to make their own informed media choices and for children to be
protected from material which may cause harm, there continues to be acommunity
expectation that certain media content, including digital content, be acompanied by
clasifcation information based on decisons which reflect he community's moral
standards.
Recently there has ben aseveral reports in the print media bout he spate of hate
spech and racist comments posted on public platforms uch as Twiter and Facebok.
Examples of such cases as reported in the media re the folowing:
In February 2015 Sunday Times' published an article about acase which came
before the Human Rights Commision in which an individual posted racist
comments on his Facebok page wherein he wrote "when Ise awhite man, I
se someone who has robed me of the privilege Iwas uposed to have."
Thereafter he invited his friends on Facebok to join him at a"Big Black
Brai" to celebrate the death of 42 people with white sounding names who
died when the bus they were traveling in plunged into the Westdene Dam.
In the same article it was also reported that "in 2014 cases related to fredom of
spech increased .from 3% to 2% of the more than the 10 00 cases dealt with by the
Human Rights Commision. Furthermore, social media platforms uch as Facebok
and Twiter contributed to this increase and apear to have shifted the discourse of
fre spech. These cases are often complex, containing elements of racism, poverty,
ignorance and misguided hatred."
In October 2014, the Finacial Mail published an article about one of the
Pretoria's top schol being in astate of panic after naked pictures of at least 20
tenage boys were posted on Twiter in the country's bigest sexting scandal.
1 Article by Ahmed, CEO of the South African Human Rights Commision, page 21 of the Sunday
Times published on February 1 2015.
3
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10 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 2015The posting which was from afake Twiter acount depicted the boys in
compromisng sexual positons. It was further eported that despite the acount
and aGmail adres which was used to receive the photos being shut down
within hours of the pictures being uploaded, schol principals, parents and
pupils involved are now woried about where the pictures wil end up. The
postings also sparked outrage on social media
In January 2015 avideo was uploaded on social media showing apopular
pastor from KZN walking around naked in his home. The video also went
viral and was acesible to persons of al ages.
In September 2014 aPastor from one of the popular churches in Pretoria made
headlines when avideo clip was uploaded on You-Tube showing him ordering
members of his congregation, some of whom were minors, to graze like catle
and drink petrol to prove that humans can eat anything provided by God.
Upon clasifcation, it was found by the Clasifcation Commite of the FPB
that although the themes of the video aforementioned are centered on religion,
faith, scripture, miracles and beliefs, the video contained some instances of
harmful imitative acts and techniques of amoderate nature. The fotage of
human consumption of petrol which is hown in the video clip may be harmful
to young children under the age of 13 as their moral development is not
complete. The video clip also apears to use religion to encourage or promote
harmful behavior which is in contravention of Section 18(3) (b)(i) of the Act.
Although the other cases mentioned were not refered for clasifcation by the FPB, it
goes without saying that some of these videos, Twiter and Facebok post, especialy
the ones which have lements of racism, contain hate spech and exposing the
genitals of young boys can cause ireparable harm to developing minds. Furthermore,
hate spech, racism and propaganda for war are prohibited and not protected by
fredom of expresion as provided for in section 16 of the Constiution.
4
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STAATSKOERANT, 4 MAART 2015 No. 38531 113. PROBLEMS WITH THE CURENT FRAMEWORK
A strong underlying theme of many of the submisions, particularly from industry
players, was that he curent clasifcation scheme does not deal adequately with the
chalenges of media convergence and the volume of media content which is now
available to South Africans. The Act lacks clarity in relation to the clasifcation
proces for digital content and online media.
Most online distributors and members of civil society drew atention to aspects of the
clasifcation and content regulation framework in that it is failng to met intended
goals, and that it creates confusion for media content industries and the wider
community. More specifcaly, the main problem identifed was the piecemeal
regulatory responses to changes in technologies, markets and consumer behaviour
which have the potential to create uncertainty for both consumers and industry. These
may raise questions about where responsibilties lie for driving change.
Against his background and in order to give fect o section 16 and 18 of the Act, it
became imperative for the FPB to develop the atached Online Regulation Policy and
to open the proces for public onsultations and inputs. Public participation and
transparency in the proces is avital aspect of public policy formulation.
4. KEY FEATURES OF THE DRAFT ONLINE POLICY
The key features of the Draft Policy's model are:
4.1. Platform-neutral regulation
One legislative regime stablishing obligations to clasify content acros al media
platforms.
5
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12 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 20154.2. Clear scope of the type of content o be clasifed
This includes elf-generated content uploaded on platforms uch as You-Tube,
facebok and Twiter, feature films, televison programs and certain computer
games which are distributed online by streaming through the internet.
43. Co-regulation and industry clasifcation
This refers to clasifcation of content by the industry subject o the FPB's
regulatory oversight.
4.4 Regulatory Oversight and guidance by the FPB
The role of the FPB in the aplication of the Policy and co-regulation scheme is
defined.
e Platform-neutral regulation
Although the Act confers upon the FPB, jurisdiction over al distribution
platforms, the FPB's clasifcation and compliance monitoring activites have
ben until recently focused predominantly on physical distributions and les
on online platforms. The convergence of media platforms brought by
technology has made traditonal distinctions based on how content is acesed
or delivered les relevant. Acordingly, this Policy seks to elevate the Act's
`platform-neutralitys to ensure uniform compliance by al content distributors
regardles of whether the content is crened in cinemas, streamed via the
internet o televison, sold in retail outlets, provided online, or otherwise
distributed to the South African public.
The intention is to avoid inconsitencies manifest under the curent
clasifcation regime and enable anew clasifcation framework to be more
6
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STAATSKOERANT, 4 MAART 2015 No. 38531 13adaptive to changes in technologies, products and services arisng out of media
convergence.
Clear scope of what must be clasifed and self-generated content
The volume of media content available to South Africans has grown
exponentialy. There are curently over milion web sites and hundreds of
thousand aps' available for download on mobile phones and other devices,
and every minute over 60 hours of video content is uploaded to YouTube (one
hour of content per second). As it is impractical to expect al media content,
particularly self-generated content o be clasifed, it is the responsibilty of
the platform provider in consultation with the FPB to determine the scope of
what must be clasifed.
Acordingly the obligation to clasify content wil not generaly aply to
persons uploading online content on anon-commercial basi. Child
exploitative and pornographic posting, hate spech and racism may be
prosecuted and the content creators be convicted and sentenced, Internet
intermediaries, including aplication service providers, host providers and
internet aces providers wil bear the responsibilty of puting in place content
filtering systems to ensure that ilegal content or content which may be
harmful to children is not uploaded in their services.
In aditon to the above the FPB through its online compliance monitoring
work, may refer any self-generated video that is found to contain clasifable
elements for clasifcation to its clasifcation commite, instruct the
distributor to take down the unclasifed content and only reinstate it after
having complied with the FPB clasifcation decison. In such an event he
cost for clasifcation wil be borne by the online distributor. This is aimed at
ensuring that he online distributors remain vigilant and that heir filtering
mechanisms are adequate to protect children against exposure to harmful
7
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14 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 2015content and that people with racist ideologies do not use these platforms to
undermine Government's ocial cohesion and transformation agenda.
Co-regulation and industry clasifcation
FPB has come to the realisation that by asigning agreater ole to the industry
in terms of clasifcation can thus focus on the content hat generates the most
concern in terms of community standards and the protection of children. In
this regard, once adopted, the Policy wil introduce lements of co-regulation
into the clasifcation system.
The co-regulation scheme provides for inovative and eficient clasifcation
decison-making mechanisms. Content may be clasifed by online distributors
using the FPB clasifcation guidelines and the Act, but subject o FPB's
regulatory oversight and review. This wil faciltate the provison of South
African clasifcation information in amedia environment characterised by
vast volumes of content.
Regulatory Oversight and guidance by the FPB
Once the Policy is adopted, the FPB wil retain the primary responsibilty for
regulating the aplication thereof The FPB wil be responsible for arange of
functions, including but not limited to:
r- encouraging, monitoring and enforcing compliance with the Act;
r- auditng distributors complaints handling mechanism in relation to
digital media content;
auditng al media content self-clasifed by online distributors using
the Act and the Clasifcation Guidelines.
8
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STAATSKOERANT, 4 MAART 2015 No. 38531 15>-.> providing and roling out clasifcation training to al registered online
distributors;
cordinating joint public awarenes and education campaigns on cyber
safety and digital content clasifcations with online distributors;
liaisng with relevant South African and international media content
regulators, online distributors and law enforcement agencies to combat
child pornography and sexual exploitation on the internet; and
educating the public together with online distributors about he new
Online Regulation Policy and promoting cyber safety.
5. POLICY CONSULTATION PROCES
Public onsultation is central to public policy making proceses to firstly educate
members of the public on the posible interventions to the chalenge at hand,
secondly to also obtain the necesary buy-in that is esential for the suces of the
policy. Public onsultations wil be as inclusive as posible. Consequently, FPB
wil vist al 9 provinces and mount an extensive public onsultation campaign
acros the country.
6. CONSULTATION PARTICIPANTS
Once adopted, the policy wil have an impact on al South Africans and
foreign companies distributing media content in the Republic of South Africa
in relation to the maner in which they engage and use media platforms. In
this regard, regulatory partners identifed below and the industry are urged to
consider the atached Draft Online Regulation Policy and submit heir inputs
or comments to the Film and Publication Board as directed.
ICASA, SABC
WASPA, ISPA
9
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16 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 2015Universites, NYDA, Film and Media Schols and youth formation
MDDA, DOC, Brand South Africa
Al content broadcasters and Distributors
Telecommunications and Network mobile operators
Online and gaming distributors
Film distributors and content creators, including creators of self generated
content uploaded or posted on social media platforms
FPB Employes at large
J> Clasifers;
10
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STAATSKOERANT, 4 MAART 2015 No. 38531 17Parents;
Educators;
Civil Society Organisation; and
Internet users and blogers
Law Enforcement Agencies
South African Police Services
National Prosecuting Authority
SIGNED AND DATED AT CENTURION ON THIS / 57)- DAY OF
FEBRUARY 2015
Mrs. NFT Mpumlwana
Council Chairperson
Film and Publication Board
12
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18 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 2015DRAFT ONLINE REGULATION POLICY /2014
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STAATSKOERANT, 4 MAART 2015 No. 38531 19Table of Contents
1 Introduction
2 Aplication of the policy 8
3 Objectives of the policy
4. Guiding principles of the policy 9
5. Policy on online distribution of digital films & games 10
6 Online distribution of television films & programmes 14
7. Prohibiton against child exploitative media content and clasifcation by the Board of self
created content 15
Maters for the Board to consider 16
9. Checks and balances 16
10. Online distribution licensing fe 17
1. Complaints 17
12. Review of Clasifcation decisions 18
13. Audits of industry clasifcation decisions 18
14. Sanctions regime for industry clasifcation decisions 19
15. Clasifcation decision data base 19
16. Policy review 20
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20 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 2015Abreviations and acronyms:
DOC -Department of Communications
EA -Executive Authority
Board Film and Publication Board
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STAATSKOERANT, 4 MAART 2015 No. 38531 21DEFINITIONS
"Act" means the Films and Publications Act of 196, Act No. 65 of 196, as amended.
"Board" -means the Film and Publication Board
"Online content" in relation to the distribution of ilms, games and certain publications,
means distribution that is conected by computer or electronic devices to one or more other
computers, devices or networks, as through a commercial electronic information service or
the Internet.
"Self-generated content or user-generated content" (UGC) refers to a variety of media
available in a range of modern communications technologies. UGC is often produced
through open colaboration by one or more people or cordinated participants, who interact
to create a product or service online, which they make available to contributors and noncontributors
alike.
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22 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 2015POLICY APROVAL
The signatories below are in favour of the aproval of the Online Content Regulation Policy.
Prepared by Signature
Sipho Risiba Date
Chief Operations Oficer
Recommended by
Themba P Wakashe
Chief Executive Oficer
Recommended by
Mrs Lusanda Rataemane
Chairperson: OPITCOM
Aproved by
Mrs Thoko Mpumlwana
Chairperson: Council FPB
Signature
Date
Signature
Date
Signature
Date
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STAATSKOERANT, 4 MAART 2015 No. 38531 231. INTRODUCTION
The Film and Publication Board (Board) is a public entiy of the Department of
Communications, established in term of the Films and Publications Act 65, 196 (as
amended in 204 and in 209).
The mandate of the Board can be summarised as folows:
To regulate the creation, production, posesion and distribution of ilms, games and
certain publications by way of clasifcation;
1.1.2 To protect children from exposure to disturbing and harmful material and from
premature exposure to adult material;
1.1.3 To criminalise child pornography and the use and exposure of children to
pornography.
Section 18(1) of the Films and Publications Act requires any person who intends to
distribute any film or game and certain publications in the Republic of South Africa first o
register with the Board and to submit o the Board for examination and clasifcation such
film, game or publication. Although the curent legislation is not platform-specifc, the Board's
compliance and clasifcation activites have over the year focused more on physical
platforms and les on the online space, resulting in children being exposed to unclasifed
content acesed through the internet and other mobile platforms.
Media convergence -a new technology trend enabled by the digitsation of media content,
the widespread availabilty of high-sped broadband conections, and the proliferation of
Internet-enabled devices -has fundamentaly transformed the way media content is
distributed and consumed. Consumers can now aces media content acros geographic
boundaries, anytime, anywhere, and however they want it.
Until recently the Board adopted a fragmented aproach in responding to the demands of
industry players and online distributors for a solution to enable them to clasify and distribute
online content in the Republic of South Africa.
Council and several stakeholders have argued strongly for the ned to move from piecemeal
responses that aply the existing clasifcation framework to each new technological
development, towards one that is framed in such a way as to be adaptive to broader
convergent media trends. Further, the Executive authority has also caled for a framework
Page 6 of 20
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24 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 2015that can adapt o 'the rapid pace' of technological change in media available to and
consumed by the South African community.
Strategic object 4 of the Board's five-year strategic plan requires it o ensure the efective
and inovative regulation of content distributed online, mobile and related platforms to
protect children and inform the general public. In response, in August 2014 Council
aproved the Board's Online Content Regulation Strategy. This strategy lists as its core
objectives the folowing:
to ensure clasifcation and compliance monitoring of digitaly-distributed content;
to provide apropriate technology for online content regulation;
to inform and educate the community on the chalenges of digital content; and
to partner with national and international regulators on cros-border egulation.
Further, the Board has recently finalised the review of its legislation, the Films and
Publications Amendment Bil, 2014 ("the Bil"), and submited it to the Minister of
Communications. Once enacted and aplied in conjunction with the aproved Online
Content Regulation Strategy, the Bil wil create a legislative framework that wil ensure a
greater ole for online distributors in clasifying their own content on behalf of the Board,
using the Board's Clasifcation Guidelines and the Act. Further, in the context of the evergreater
convergence of media technologies, platforms and services, and more media being
acesed from the home through high-sped broadband networks, the framework wil also
make it posible for the industry to enter into co-regulation agrements with the Board for the
purposes of content clasifcation and compliance monitoring.
Section 4A of the Act empowers Council, in consultation with the Minister, to isue directives
of general aplication, including clasifcation guidelines, in acordance with maters of
national policy that are consistent with the purpose of this Act. Thus on 16 October 2013
Council resolved to enact an online policy that isues directives on how the Board must
regulate the distribution of online content in the Republic of South Africa.
Against his background, in order to give efect o the above Council resolution, the goals set
out in the Online Content Regulation Strategy, and the Bil, the Online Regulation Policy is
hereby enacted. This policy, read with the Online Regulation Strategy and the Bil, wil also
ensure that clasifcation focuses on media content, rather than on platforms or delivery
technologies. This is necesary because regulatory frameworks for media based upon their
delivery platform have proven to be unsustainable over time.
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STAATSKOERANT, 4 MAART 2015 No. 38531 251.2. The context of media convergence
Developments asociated with media convergence in South Africa include:
increased household and busines aces to high-sped broadband Internet;
the digitsation of media products and services, as sen with the rise of You Tube,
Aple iTunes, and other global digital media platforms; the convergence of media
platforms and services for both established and new media; the globalisation of
media platforms, content and services, making nationaly-based regulations more
dificult o aply;
the aceleration of inovation, characteristic of a more knowledge-based economy;
the rise of user-created content, and a shift in the nature of media users from
audiences to participants; greater media user empowerment, due to greater diversity
of choices of media content and platforms, and the increased abilty to personalise
media; and
the bluring of lines betwen public and private media consumption, as wel as the
dificulty of aplying age-based aces restrictions, as more media are acesed
from the home through converged media platforms.
piecemeal regulatory responses to changes in technologies, markets and consumer
behaviour, resulting in uncertainty for both consumers and industry, and raising
questions about where responsibilties lie for driving change.
2. APLICATION OF THE POLICY
This Online Regulation Policy aplies to any person who distributes or exhibits online any
film, game, or certain publication in the Republic of South Africa. This shal include online
distributors of digital films, games, and certain publications, whether localy or internationaly.
Upon aproval this policy shal have the ful efect and force of law, as stipulated in section
4A of the Act.
3. OBJECTIVES OF THE POLICY
The objective of this policy is to create a regulatory clasifcation and compliance monitoring
framework, giving efect o sections 18(1) and (2) of the Films and Publications Act 65 of
196 as amended ("the Act"), by enabling efective regulation and spedy clasifcation of
Page 8 of 20
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26 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 2015digital content by the Board, and to create an oportunity for co-regulation betwen the
Board and the industry for the clasifcation of digital content distributed on mobile and digital
platforms.
4. GUIDING PRINCIPLES FOR AN ONLINE CONTENT REGULATION POLICY
The Board has identifed eight guiding principles for a policy that aims to provide an efective
framework for the clasifcation and regulation of online media content in South Africa.
The eight guiding principles are that:
(1) South Africans should be able to read, hear, se and participate in media of their choice;
(2) communications and media services available to South Africans should broadly reflect
community standards, while recognising a diversity of views, cultures and ideas in the
community;
(3) children should be protected from material ikely to harm or disturb them;
(4) consumers should be provided with information about media content in a timely and
clear maner, and with a responsive and efective means of adresing their concerns,
including through complaints;
(5) the clasifcation regulatory framework neds to be responsive to technological change
and adaptive to new technologies, platforms and services;
(6) the clasifcation regulatory framework should not impede competion and inovation,
nor disadvantage South African media content and service providers in international
markets;
(7) clasifcation regulation should be kept o the minimum neded to achieve a clear public
purpose; and
(8) clasifcation regulation should be focused on content rather than on platform or means
of delivery.
Against his background, this policy seks to create and enhance coperation betwen the
Board and the industry to ensure uniform clasifcation, labeling and compliance monitoring
of digitaly distributed content.
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STAATSKOERANT, 4 MAART 2015 No. 38531 27Co-regulation betwen the Board and the industry wil also ensure that he industry asists to
eficiently provide clasifcation information to South African consumers under the scope of
the Act.
5. POLICY ON ONLINE DISTRIBUTION OF DIGITAL FILMS, GAMES, AND CERTAIN
PUBLICATIONS
5.1. In order to ensure the uniform clasifcation of content and the efective regulation of
digital content distribution by the Board in the Republic of South Africa, the folowing policy is
hereby enacted:
5.1.1 Any person who intends to distribute any film, game, or certain publication in the
Republic of South Africa shal first comply with section 18(1) of the Act by aplying, in the
prescribed maner, for egistration as film or game and publications distributor.
5.1.2. In the event hat 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 aplication to the Board for the conclusion of an online distribution agrement, in terms of
which the distributor, upon payment of the fe prescribed from time to time by the Minister of
DOC as the Executive Authority, may clasify its online content on behalf of the Board, using
the Board's clasifcation Guidelines and the Act; or
5.1.3 Upon payment of the prescribed fe for each tile submited, submit electronicaly each
digital game or film by providing the Board with a link from which the Board wil aces the
online game or film for clasifcation.
5.1.4 Where it is convenient and practical to do so, the Board may dispatch clasifers to the
distributors' premises for the purposes of clasifying digital content. In such an event he
clasifcation shal be demed to be the clasifcation proces of the Board, and the
distributors shal ensure that he work of clasifers takes place unhindered and without
interference.
5.1.5 In the event hat an online distributor aranges to have online content clasifed by the
Board's clasifers in terms of clause 5.1.4, the distributor shal first satisfy the Board that it
has storage facilties to store al clasifed content for audit and related purposes.
5.1.6 The dispatching of clasifers in terms of clause 5.1.4 shal be subject o the Board and
the online distributor concluding an agrement in terms of which the online distributor,
amongst others, indemnifes the Board for any claim, los or damage arising from the
clasifcation services being rendered at he online distributor's premises.
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28 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 20155.1.7 For the purposes of this policy, the words 'online' and 'digital' are used
interchangeably.
5.1.8 The terms 'distributor 'and 'content provider' are also used interchangeably.
5.1.9 Online distributors of digital content clasifed in terms of either clause 5.1.2 or 5.1.3
shal ensure that, in al content distributed via the various media distribution platforms, they
display the Film and Publication Board clasifcation rating and logo, as prescribed in
Regulation 21 of the Regulations to the Act and as shown in the example below:
by
a
5.2. Clasifcation pursuant o an online distribution agrement
In the event hat a content provider or distributor choses to clasify its own content in terms
of 5.1.2 above, the distributor shal first satisfy the Board that he rating system to be used
for clasifcation is aligned with the Board's clasifcation system and Clasifcation
Guidelines, and that he distributor is capable of generating clasifcation ratings and
symbols as indicated in 5.1.9 above.
5.3. Labeling of digital content distributed online
5.3.1. Upon clasifcation of digital content in terms of either clause 5.1.2 or 5.1.3, al
registered online distributors of digital content shal ensure that, prior to distributing any film,
game or publication online, they submit o the Board an aplication, in the prescribed form,
for permision to use the FPB logo.
5.3.2. Upon granting such permision, the Board shal also isue the online distributor with a
series of barcodes that wil have to be displayed by the content distributor along with the
clasifcation decision.
5.3.3. In al clasifcation decisions for digital content, the online distributor must ensure that
the Board's clasifcation decision and logo is conspicuously displayed on the landing page
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STAATSKOERANT, 4 MAART 2015 No. 38531 29of the website, in the website catalogue of the online distributor's website landing page, at
the point of sale, and during the streaming of the digital content.
5.4. Transitonal arangements
5.4.1 It is hereby recorded that he Board has entered into transitonal agrements with a
number of online distributors who are already distributing digital content in the Republic of
South Africa using a clasifcation rating system not aligned with the Board's Clasifcation
Guidelines and the Act.
5.4.2. Notwithstanding the duration of each individual contract concluded with online
distributors, al online distributors shal ensure that on or before the 31st of March 2016, The
ratings systems used for the clasifcation of content intended for distribution in the Republic
of South Africa are aligned with the Board's Clasifcation Guidelines and the Act.
5.4.2. As at he 31St of March 2016, no online distributor shal be alowed to distribute digital
content in the Republic of South Africa unles such content is clasifed in terms of the
Board's Clasifcation Guidelines, or a system acredited by the Board and aligned with the
Board's clasifcation Guidelines and the Act.
5.4.3. Al content distributed in the Republic of South Africa at he end of the transitonal
period shal have ben clasifed in terms of the Board Clasifcation Guidelines and shal
display the Film and Publication Board clasifcation decision and logo as ilustrated in
clause 5.1.9.
5.5. Authorisation of distributors' clasifers
5.5.1. No clasifcation of online media content shal be undertaken by any distributor unles
the distributor has ben authorised by the Board.
5.5.2 The Board shal not grant authorisation to any distributor unles the distributor satisfies
the Board that it has in place a clasifcation and rating system in terms of which the
clasifcation proces and clasifcation decisions are founded upon the decision-makers
consistently aplying the Act and the Board's Clasifcation Guidelines, adhering to agred
standards, and employing sound decision-making practices.
5.5.3 The object is that al clasifcation decisions, whether made by the Board or by
distributors, wil be made in the same way, using the same clasifcation tols for the same
clasifcation outcome.
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30 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 20155.5.4 To ensure that al distributor clasifers are clasifying content consistently and are
properly aplying the statutory clasifcation criteria, the distributor's clasifers must have
ben trained and certifed by the Board. The Board wil only certify such clasifers if they
have completed training aproved by the Board and have demonstrated competencies in the
aplication of the Board's Clasifcation Guidelines and the Act.
5.5.5 In granting authorisation, the Board shal retain the power periodicaly to renew
authorisations and to undertake refresher training to ensure that clasifers stay up to date
with changes in legislation, including the statutory clasifcation guidelines, and to maintain
their clasifcation skils and knowledge at he required level of competence.
5.5.6 Authorised clasifers may be employed ful-time by major online content distributors,
or they may be engaged by content providers on a clasifcation task basis. Clasifers who
are authorised and trained to met he same minimum requirements and standards may
have greater mobilty and oportunites to work acros media content industries.
5.6. Training
5.6.1 In order to met he training requirements in terms of clause 5.5 above, the Board shal
develop material for a clasifcation course, and shal deliver clasifcation training for online
distributor's clasifers.
5.6.2. The training provided by the Board shal be robust and comprehensive in order to
ensure that here is consistency and acuracy in clasifcation decisions.
5.6.3. Such training shal be conducted by profesionals with apropriate qualifcations to
maintain a high level of public confidence in the quality of clasifcation decision-making and
in the integrity of the self clasifcation arangement.
5.6.4. The training shal include a requirement hat provides for consistent, minimum
clasifcation standards, skils and knowledge for al authorised clasifers by mandating that
they complete the training program provided by the Board.
5.6.5. Only the Board shal the power to determine the methodology and duration of the
training, which may not last more than five days.
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STAATSKOERANT, 4 MAART 2015 No. 38531 316. ONLINE DISTRIBUTION OF TELEVISION FILMS AND PROGRAMMES
6.1. Al digital content in the form of television films and programmes streamed online via the
internet shal first be submited to the Board for pre-distribution clasifcation.
6.2. In relation to online television films and programmes streamed via the internet, the
Board shal in certain circumstances, and for commercial and practical reasons, have the
power to determine that such films, television programs and related content hat have ben
clasifed under an authorised clasifcation system are 'demed' to have an equivalent
Board clasifcation.
6.2. However, to maintain the integrity of the Board's clasifcation scheme, the Board shal
only authorise robust and comprehensive clasifcation proceses that incorporate the
Board's Clasifcation Guidelines and are comparable to those provided for under the Act
and the Board Clasifcation Guidelines as reviewed from time to time. Esentialy, the Board
must be satisfied that authorised clasifcation systems deliver clasifcation decisions
comparable to those that might be made if content were clasifed by the Board's clasifers
operating under the Act.
6.3. Where the Board considers that a particular item of media content has generated
controversy in another jurisdiction, or is likely to have a high profile on release, it shal have
the capacity to cal it in for clasifcation by the Board or to request he content provider to
clasify the product, rather than alow it o be 'demed'. Content providers wil be required to
make similar judgements of their own voliton to minimise the risk of complaints or of an
aplication for eview of the clasifcation.
6.4. The Board's determination concerning what content is to be clasifed by the Board is
intended to operate in paralel with the content provider's determination about content hat is
demed to be clasifed.
6.5. For the purposes of this clause 6, the online distributors shal ensure that heir websites
contain al clasifcation decisions made by the online distributor, along with an explanation
to consumers about how their clasifcation systems work, and what content is 'demed'.
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32 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 20157. PROHIBITION AGAINST CHILD EXPLOITATIVE MEDIA CONTENT AND
CLASIFICATION BY THE BOARD OF SELF-GENERATED CONTENT
The rise of user-created content, suported by technological advancements in 'smart
phones' and the availabilty of user distributor tols such as You Tube and other global digital
media platforms, has shifted the nature of media users from being audiences to being
participants. More and more South Africans, the majority of which are children are using
"Contact services 'such as facebok, twiter The bulk of this media content is unclasifed,
and children are therefore left exposed to unclasifed content on online platforms.
In order to minimise the risk of children's exposure to unclasifed content on online
platforms, it is hereby recorded that:
7.1 user created content includes any publication as defined in section 1 of the Act o
include, inter alia, a drawing, picture, ilustration or painting; recording or any other mesage
or communication, including a visual presentation, placed on any distribution network
including, but not confined to, the internet.
7.2 it is a criminal ofence in terms of section 24C the Act, for any person to distribute or
upload child pornographic images, posts, publications or videos on online distribution
networks or social media platforms for the purposes of child exploitation.
7.3 online distributors must ensure that hey comply fuly with their obligations as set out in
section 24C of the Act by ensuring that hey take reasonable steps as are necesary to
ensure that heir online distribution platforms are not being used for the purposes of
commiting an ofence against children, and report suspicious behaviour by any person using
contact services to the Board and South African Police Services.
7.4. With regard to any other content distributed online, the Board shal have the power to
order an administrator of any online platform to take down any content hat he Board may
dem to be potentialy harmful and disturbing to children of certain ages.
7.5. In the event hat such content is a video clip on YouTube or any other global digital
media platform, the Board may of its own acord refer such video clip to the Clasifcation
Commite of the Board for clasifcation.
7.6. The decision of the Board's Clasifcation Commite shal be final and binding on the
distributors, subject o the online distributor's right o apeal such a decision to the Board's
Apeal's Tribunal.
7.7. Upon clasifcation, the Board shal dispatch a copy of the clasifcation decision and an
invoice payable by the online distributor within 30 days, in respect of the clasifcation of the
content in question.
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STAATSKOERANT, 4 MAART 2015 No. 38531 337.8. The fe payable in respect of the clasifcation of content by the Board in terms of subclause
7.4 above shal be the sum equivalent o what he Board charges per tile in respect
of boxed films or games submited to it for clasifcation.
7.9. Failure to pay the said clasifcation fe within the stipulated period may result either in
the Board withdrawing the online distributor's registration certifcate until the fe is paid, or in
the online distributor being penalised and legal action being taken against he distributor in
terms of section 24A of the Act
7.10. The online distributor shal, from the date of being notifed by the Board in writng of
the clasifcation decision, take down the unclasifed video clip, substiute the same with the
one that has ben clasifed by the Board, and display the Film and Publication Board Logo
and clasifcation decision as ilustrated in clause 5.1.6.
7.1. Where the user-created content is prohibited or ilegal content, the Board shal have
the power, in aditon to ordering the online distributor concerned to take down the content , to refer the ofending and ilegal content o the South African Police Services for criminal
investigation and prosecution.
8. MATERS THE BOARD MUST CONSIDER
8.1. It is important hat consumers are confident hat he online distributor or content
provider's system has ben thoroughly asesed before being authorised. Consumers must
be asured that he online distributor or content provider's systems have ben carefuly
asesed so that he integrity and value of Board clasifcation decisions is not
compromised.
8.2. While no two clasifcation systems wil be entirely aligned, the Board considers it
important hat elements of the Board's Clasifcation Guidelines be reflected in the
authorised clasifcation system, including:
(i) independent decision-making;
(i) regard for community standards, particularly the ned to protect children from harm;
(i) meaningful clasifcation information;
(iv) transparency of decisions and clasifcation proceses;
(v) availabilty and integrity of review mechanisms;
(vi) eficient and acesible public complaints proceses;
(vi) comparable clasifcation categories and criteria, and endorsement by governments in
other jurisdictions.
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34 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 20159. CHECKS AND SAFEGUARDS
9.1. Alowing industry to clasify its own content may raise concerns in certain sectors of
South African society about achieving an aceptable balance betwen content providers'
commercial interests and community neds and concerns.
9.2. Acordingly the Board shal retain the power to monitor industry clasifcation decisionmaking
and to penalise serious breaches.
9.3. In the event hat an online distributor is found to have manipulated or provided false
information to the Board or any other person with the sole object of achieving a clasifcation
decision that advances its own commercial interest, the Board may withdraw the online
distributor's registration certifcate, bar the distributor from the co-regulation regime, and
direct hat al media content belonging to the distributor be submited to the Board for
clasifcation by the Board.
9.4. Under this policy, al industry clasifers, whether they clasify for television networks,
film distributors, or other content providers, are subject o the Board's regulatory oversight.
10. ONLINE DISTRIBUTION LICENSING FE AND CLASIFICATION FE PER TITLE
10.1. No online content distributor shal be authorised by the Board to distribute online
content in the Republic of South Africa unles it has registered with the Board as an online
distributor and has paid the prescribed online distribution licensing fe as determined by the
Minister, and any other fes that he Minister may determine from time to time.
10.2. The above online licensing fe shal be paid anualy, and shal escalate at he rate to
be determined by the Minister.
10.3. Notwithstanding the provision of clause 10.1, the Board shal have the power to charge
a clasifcation fe per tile submited for the clasifcation of digital content distributed in the
Republic of South Africa. In this regard, the clasifcation fe payable shal vary from case to
case, but shal be based on the fe tarif prescribed by the Minister from time to time.
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STAATSKOERANT, 4 MAART 2015 No. 38531 351 COMPLAINTS
1.1. Complaints about he clasifcation of content wil be directed, in the first instance, to
the content provider esponsible for the clasifcation decision. A complainant may lodge a
complaint with the Board where that complainant considers that he complaint has not ben
satisfactorily resolved. Under the Board's model, the Board shal have power to investigate
al valid complaints.
1.2. A content provider or online distributor authorised by the Board to clasify its own
content must develop a complaint-handling mechanism.
1.3. The complaint-handling mechanism must cover:
(i) awarenes and acesibilty of the complaints mechanism;
(i) response time frames, and recording and reporting proceses;
(i) proceses for escalating serious complaints; and
(iv) the review and reclasifcation of clasifcation decisions, where apropriate.
1.4. The Board shal retain the authority to investigate complaints about clasifcation
decisions and about unclasifed or unrestricted media content. In the course of investigating
complaints (especialy those that are more complex or serious), the Board may liaise with
the content provider or online distributor to ascertain how the original complaint was initaly
adresed, to obtain reasons for the clasifcation decision (if the content has ben
clasifed), or to discus options for esolving the complaint.
1.5. The Board may, in response to a valid complaint about media content, isue the
content provider or online distributor with a 'clasify' notice or a 'restrict aces' notice.
1.6. The Board may of its own acord direct he content provider or online distributor to
clasify content or eview the original clasifcation decision, arising from investigation into a
complaint.
12. REVIEWS OF CLASIFICATION DECISIONS
12.1. A review of a clasifcation decision involves the making of a new decision on the
merits, which replaces the original decision.
12.2. Under this policy, al clasifcation decisions for al media content, including television
programs streamed through the internet, are reviewable.
12.3. The Board shal have the power and authority to review al content, including content
that has ben voluntarily clasifed by the online content provider or distributor.
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36 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 201513. AUDITS OF INDUSTRY CLASIFICATION DECISIONS
13.1. As part of the quality-asurance proces and monitoring of industry clasifcation
decision-making, the Board shal have the power to undertake post-clasifcation
audits of media content hat must be clasifed and of media content hat must be
restricted to adults.
13.2. In conducting audits, the Board may draw on the clasifcation experience of its
clasifers as the independent benchmark decision-maker.
13.3. The Board shal use the audits as the primary mechanism by which the Board
proactively manages industry clasifers and clasifcation activites, to maintain a
high standard of decision-making.
13.4. Further, the Board shal use the audits as the means for advising content providers
and/or individual clasifers about any isues identifed with the clasifcation
decision-making proces, and may initate remedial action to asist clasifers to
improve their job performance. This might involve liaising with the online distributor or
content provider and sugesting aditonal training or supervision. In some cases,
audit outcomes might require content providers to revisit decisions as apropriate.
13.5. The Board wil also use audits as an evidence base of serious and repeated
misconduct, in which case the Board wil have the power to impose sanctions.
14. SANCTIONS REGIME FOR INDUSTRY CLASIFIERS
14.1. Sanctions are another means of protecting consumers and of ensuring that he
integrity of the entire clasifcation scheme is maintained. Sanctions are intended to be a
`last resort' to prevent industry clasifers from continuing to make clasifcation decisions
that are repeatedly misleading, incorect, or grosly inadequate.
14.2. In keping with the above principle, al content provider or online distributors
authorised to distribute online content in the Republic of South Africa are subject o the
penalty regime of the Board in terms of the Act, this policy, and any other directive that he
Board may isue from time to time.
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STAATSKOERANT, 4 MAART 2015 No. 38531 3714.3. The Board shal have the power to impose fines and/or withdraw the authorisation of
any content provider or online distributor who repeatedly makes decisions that are
misleading, incorect, or grosly inadequate.
15. CLASIFICATION DECISIONS DATABASE
15.1. Every content provider or online distributor authorised in terms of this policy shal
establish and administer a centralised database to record clasifcation decisions made by
the clasifers of the content provider or online distributor.
15.2. The database shal include details such as the clasifcation decision and any
consumer advice, whether it is a Board or industry clasifcation, the responsible
organisation or clasifer, and whether the content is original or modifed.
15.3. The Board shal publish on its website a central and reliable database to enable online
distributors and content provider to check whether content has already ben clasifed.
16. POLICY REVIEW
This policy shal be reviewed anualy, based on legal and operational requirements.
16.1 The Chief Operations Oficer ("COO") shal cordinate the review of the policy.
16.2. This policy shal be reviewed when required by the Ofice of the Chief Operations
Oficer ("COO"), and aproved by the Council. It shal become efective from the date
aproved or indicated by the Council.
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38 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 2015
GOVERNMENT GAZETE NOTICE FOR PUBLIC COMMENT
REPUBLIC OF SOUTH AFRICA
I, NFT Mpumlwana, hereby publish for public omment, the Draft Online Regulation
Policy developed under section 4A of the Films and Publications Act, 61 of 196, as
amended.
Any person who wishes to submit representations or comments in conection with the
Draft Online Regulation Policy is invited to do so within 90 (ninety) days from the
date of publication in the Government Gazete and by no later than 16h0 on the last
day. Comments received after this time may not be considered.
Hand deliver to: The Film & Publication Board
ECO Glade 2, 420 WITCH HAZEL AVENUE
Centurion, 1609
Atention; Tholoana Ncheke
OR E-MAIL TO: policy.submisionsfpb.org.za
A copy of the Draft Online Regulation Policy is also available fre online at
www.fpb.org.za
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STAATSKOERANT, 4 MAART 2015 No. 38531 3
GENERAL NOTICES
NOTICE 182 OF 2015SCHEDULE
1. The Film and Publication Board (Board) is apublic entiy of the Department of
Communications, established in term of the Films and Publications Act 65,
196 (as amended in 204 and in 209).
2. The mandate of the Board can be summarised as folows:
2.1 To regulate the creation, production, posesion and distribution of ilms,
games and certain publications by way of clasifcation;
2.2 To protect children from exposure to disturbing and harmful material and
from premature xposure to adult material; and
2.3 To criminalise child pornography and the use and exposure of children to
pornography.
3. Section 18(1) of the Films and Publications Act requires any person who
intends to distribute any film or game and certain publications in the Republic
of South Africa first o register with the Board and to submit o the Board for
examination and clasifcation such film, game or publication.
4. Although the curent legislation is not platform-specifc, the Board's
compliance and clasifcation activites have over the year focused more on
physical platforms and les on the online space, resulting in children being
exposed to unclasifed content acesed through the internet and other mobile
platforms.
5. Media convergence -a new technology trend enabled by the digitsation of
media content, the widespread availabilty of high-sped broadband
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4 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 2015conections, and the proliferation of Internet-enabled devices has fundamentaly
transformed the way media content is distributed and consumed. Consumers can
now aces media content acros geographic boundaries, anytime, anywhere,
and however they want it.
6. Section 4A of the Act empowers Council, in consultation with the Minister, to
isue directives of general aplication, including clasifcation guidelines, in
acordance with maters of national policy that are consitent with the purpose
of this Act. Thus on 16 October 2013 Council resolved to enact an Online
Regulation policy that would isue directives on how the Board must clasify
and regulate the distribution of online content in the Republic of South Africa to
ensure cyber safety of children and that children are protected from disturbing
and harmful content aces through social media nd mobile platforms.
7. Against his background, in order to give fect o the Act, Council in
consultation with the Minister of Communications, Ms Faith Mutambi ntends
to adopt he atached Draft Online Regulation Policy.
8. The purpose of the Policy is to ensure that clasifcation and compliance
monitoring focuses on media content, rather than on platforms or delivery
technologies.
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STAATSKOERANT, 4 MAART 2015 No. 38531 59. This Policy is also available for fre online at www.fpb.org.za
Anexure
Anexure 1 EXPLANATORY MEMORANDUM
ON THE DRAFT ONLINE
REGULATION POLICY
Anexure 2 The Draft Online Regulation Policy
Mrs. NFT Mpumlwana
Council Chairperson
Film and Publication Board
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6 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 2015GOVERNMENT GAZETE NOTICE FOR PUBLIC COMMENT
REPUBLIC OF SOUTH AFRICA
EXPLANATORY MEMORANDUM ON THE DRAFT ONLINE
REGULATION POLICY TO BE ADOPTED BY COUNCIL IN TERMS OF
SECTION 4A OF THE FILMS AND PUBLICATIONS ACT, 65 OF 196, AS
AMENDED.
Contents
1. BACKGROUND 1
2. POLICY DEVELOPMENT CONTEXT 2
3. PROBLEMS WITH THE CURENT FRAMEWORK 5
4. KEY FEATURES OF THE DRAFT ONLINE POLICY
5. POLICY CONSULTATION PROCES 9
6. CONSULTATION PARTICIPANTS 9
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STAATSKOERANT, 4 MAART 2015 No. 38531 71. BACKGROUND
This is the first policy developed to create aframework and give fect o the Films
and Publications Act, 65 of 196 (the "Act"), as amended in relation to online content
distribution in the Republic of South Africa. The Draft Online Regulation Policy once
adopted wil bring about acomprehensive and fundamental transformation for online
content regulation in the country and for the first ime, industry, civil society and the
Film and Publication Board ("FPB") wil join hands and share the cost and
responsibilty for digital content clasifcation and compliance monitoring to ensure
that children are protected from exposure to disturbing and harmful content. For al
intends and purposes, content includes films, games, publications and self generated
content uploaded or posted on social media platforms.
Prior to the development of the Draft Online Policy, the FPB consulted extensively
with industry, civil society and key stakeholders. What came out of these
engagements and consultations was that, in the context of ever greater convergence of
media technologies, platforms and services, and more media being acesed from the
home through high-sped broadband networks, the ned for acomprehensive review
of clasifcation laws and regulations became aparent. In keping with these findings
the FPB in 2013 amended its Regulations to the Act which became operational in
February 2013 and recently finalised the review of the Films and Publications
Amendment Bil 2014. The review of the Regulations to the Act was predicated on
the realisation that although the Act provides for platform neutrality in its aplication,
the Regulations to the Act were ambivalent in relation to the proces for clasifcation
of digital content.
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8 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 20152. POLICY DEVELOPMENT CONTEXT
Since March 2012 the FPB has ben in discusions with some of the major
distributors who requested the FPB to come up with asolution which would enable
them to distribute digital content in the country without risking contravening the Act.
For example, one of the six major distributors curently distributing digital content in
the country indicated to the FPB that as at he nd of April 2012, it had sold 10
milion ipads, in its aps tores in 15 countries worldwide, of these only thre
including South Africa did not have gaming aps. The distributor further indicated
that as at he nd of March 2012 it had developed in exces of 70 00 aps, of which
more than 10 00 of them are gaming aps. Furthermore, 435 milion store acounts
have ben opened, indicating the level of take -up by consumers of its ervices. On
average, the distributor indicated that one consumer downloaded 10 aps and that 35
bilion aps have ben downloaded since launch of the service.
Although at he time the FPB was not specifcaly provided with statistics relating to
the South African situation, industry trends in South Africa show an increase in the
use of portable devices for gaming and social networking, and the xpected bom in
online gaming over the next few years. While these are positve developments and
wil be conomicaly beneficial for the country, the downside to this is that here is
also aproliferation of ilegal content in and the abuse of social media platforms which
are at imes used by sexual predators to lure their child victims and people who
advocate racist ideologies and therefore use these platforms to undermine the
government's agenda on social cohesion. This was further confirmed during the FPB
public awarenes and education campaigns wherein parents, learners and society at
large raised concerns about he rise of self generated content, most of which involved
schol earners engaging in sexual activites and uploading images or video fotages
thereof on Facebok, Twiter, You-Tube or distributing same amongst heir pers
using mobile phones and similar devices.
2
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STAATSKOERANT, 4 MAART 2015 No. 38531 9The key concern for these parents and learners was that whilst here is aned for
adults to be fre to make their own informed media choices and for children to be
protected from material which may cause harm, there continues to be acommunity
expectation that certain media content, including digital content, be acompanied by
clasifcation information based on decisons which reflect he community's moral
standards.
Recently there has ben aseveral reports in the print media bout he spate of hate
spech and racist comments posted on public platforms uch as Twiter and Facebok.
Examples of such cases as reported in the media re the folowing:
In February 2015 Sunday Times' published an article about acase which came
before the Human Rights Commision in which an individual posted racist
comments on his Facebok page wherein he wrote "when Ise awhite man, I
se someone who has robed me of the privilege Iwas uposed to have."
Thereafter he invited his friends on Facebok to join him at a"Big Black
Brai" to celebrate the death of 42 people with white sounding names who
died when the bus they were traveling in plunged into the Westdene Dam.
In the same article it was also reported that "in 2014 cases related to fredom of
spech increased .from 3% to 2% of the more than the 10 00 cases dealt with by the
Human Rights Commision. Furthermore, social media platforms uch as Facebok
and Twiter contributed to this increase and apear to have shifted the discourse of
fre spech. These cases are often complex, containing elements of racism, poverty,
ignorance and misguided hatred."
In October 2014, the Finacial Mail published an article about one of the
Pretoria's top schol being in astate of panic after naked pictures of at least 20
tenage boys were posted on Twiter in the country's bigest sexting scandal.
1 Article by Ahmed, CEO of the South African Human Rights Commision, page 21 of the Sunday
Times published on February 1 2015.
3
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10 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 2015The posting which was from afake Twiter acount depicted the boys in
compromisng sexual positons. It was further eported that despite the acount
and aGmail adres which was used to receive the photos being shut down
within hours of the pictures being uploaded, schol principals, parents and
pupils involved are now woried about where the pictures wil end up. The
postings also sparked outrage on social media
In January 2015 avideo was uploaded on social media showing apopular
pastor from KZN walking around naked in his home. The video also went
viral and was acesible to persons of al ages.
In September 2014 aPastor from one of the popular churches in Pretoria made
headlines when avideo clip was uploaded on You-Tube showing him ordering
members of his congregation, some of whom were minors, to graze like catle
and drink petrol to prove that humans can eat anything provided by God.
Upon clasifcation, it was found by the Clasifcation Commite of the FPB
that although the themes of the video aforementioned are centered on religion,
faith, scripture, miracles and beliefs, the video contained some instances of
harmful imitative acts and techniques of amoderate nature. The fotage of
human consumption of petrol which is hown in the video clip may be harmful
to young children under the age of 13 as their moral development is not
complete. The video clip also apears to use religion to encourage or promote
harmful behavior which is in contravention of Section 18(3) (b)(i) of the Act.
Although the other cases mentioned were not refered for clasifcation by the FPB, it
goes without saying that some of these videos, Twiter and Facebok post, especialy
the ones which have lements of racism, contain hate spech and exposing the
genitals of young boys can cause ireparable harm to developing minds. Furthermore,
hate spech, racism and propaganda for war are prohibited and not protected by
fredom of expresion as provided for in section 16 of the Constiution.
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STAATSKOERANT, 4 MAART 2015 No. 38531 113. PROBLEMS WITH THE CURENT FRAMEWORK
A strong underlying theme of many of the submisions, particularly from industry
players, was that he curent clasifcation scheme does not deal adequately with the
chalenges of media convergence and the volume of media content which is now
available to South Africans. The Act lacks clarity in relation to the clasifcation
proces for digital content and online media.
Most online distributors and members of civil society drew atention to aspects of the
clasifcation and content regulation framework in that it is failng to met intended
goals, and that it creates confusion for media content industries and the wider
community. More specifcaly, the main problem identifed was the piecemeal
regulatory responses to changes in technologies, markets and consumer behaviour
which have the potential to create uncertainty for both consumers and industry. These
may raise questions about where responsibilties lie for driving change.
Against his background and in order to give fect o section 16 and 18 of the Act, it
became imperative for the FPB to develop the atached Online Regulation Policy and
to open the proces for public onsultations and inputs. Public participation and
transparency in the proces is avital aspect of public policy formulation.
4. KEY FEATURES OF THE DRAFT ONLINE POLICY
The key features of the Draft Policy's model are:
4.1. Platform-neutral regulation
One legislative regime stablishing obligations to clasify content acros al media
platforms.
5
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12 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 20154.2. Clear scope of the type of content o be clasifed
This includes elf-generated content uploaded on platforms uch as You-Tube,
facebok and Twiter, feature films, televison programs and certain computer
games which are distributed online by streaming through the internet.
43. Co-regulation and industry clasifcation
This refers to clasifcation of content by the industry subject o the FPB's
regulatory oversight.
4.4 Regulatory Oversight and guidance by the FPB
The role of the FPB in the aplication of the Policy and co-regulation scheme is
defined.
e Platform-neutral regulation
Although the Act confers upon the FPB, jurisdiction over al distribution
platforms, the FPB's clasifcation and compliance monitoring activites have
ben until recently focused predominantly on physical distributions and les
on online platforms. The convergence of media platforms brought by
technology has made traditonal distinctions based on how content is acesed
or delivered les relevant. Acordingly, this Policy seks to elevate the Act's
`platform-neutralitys to ensure uniform compliance by al content distributors
regardles of whether the content is crened in cinemas, streamed via the
internet o televison, sold in retail outlets, provided online, or otherwise
distributed to the South African public.
The intention is to avoid inconsitencies manifest under the curent
clasifcation regime and enable anew clasifcation framework to be more
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STAATSKOERANT, 4 MAART 2015 No. 38531 13adaptive to changes in technologies, products and services arisng out of media
convergence.
Clear scope of what must be clasifed and self-generated content
The volume of media content available to South Africans has grown
exponentialy. There are curently over milion web sites and hundreds of
thousand aps' available for download on mobile phones and other devices,
and every minute over 60 hours of video content is uploaded to YouTube (one
hour of content per second). As it is impractical to expect al media content,
particularly self-generated content o be clasifed, it is the responsibilty of
the platform provider in consultation with the FPB to determine the scope of
what must be clasifed.
Acordingly the obligation to clasify content wil not generaly aply to
persons uploading online content on anon-commercial basi. Child
exploitative and pornographic posting, hate spech and racism may be
prosecuted and the content creators be convicted and sentenced, Internet
intermediaries, including aplication service providers, host providers and
internet aces providers wil bear the responsibilty of puting in place content
filtering systems to ensure that ilegal content or content which may be
harmful to children is not uploaded in their services.
In aditon to the above the FPB through its online compliance monitoring
work, may refer any self-generated video that is found to contain clasifable
elements for clasifcation to its clasifcation commite, instruct the
distributor to take down the unclasifed content and only reinstate it after
having complied with the FPB clasifcation decison. In such an event he
cost for clasifcation wil be borne by the online distributor. This is aimed at
ensuring that he online distributors remain vigilant and that heir filtering
mechanisms are adequate to protect children against exposure to harmful
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14 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 2015content and that people with racist ideologies do not use these platforms to
undermine Government's ocial cohesion and transformation agenda.
Co-regulation and industry clasifcation
FPB has come to the realisation that by asigning agreater ole to the industry
in terms of clasifcation can thus focus on the content hat generates the most
concern in terms of community standards and the protection of children. In
this regard, once adopted, the Policy wil introduce lements of co-regulation
into the clasifcation system.
The co-regulation scheme provides for inovative and eficient clasifcation
decison-making mechanisms. Content may be clasifed by online distributors
using the FPB clasifcation guidelines and the Act, but subject o FPB's
regulatory oversight and review. This wil faciltate the provison of South
African clasifcation information in amedia environment characterised by
vast volumes of content.
Regulatory Oversight and guidance by the FPB
Once the Policy is adopted, the FPB wil retain the primary responsibilty for
regulating the aplication thereof The FPB wil be responsible for arange of
functions, including but not limited to:
r- encouraging, monitoring and enforcing compliance with the Act;
r- auditng distributors complaints handling mechanism in relation to
digital media content;
auditng al media content self-clasifed by online distributors using
the Act and the Clasifcation Guidelines.
8
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STAATSKOERANT, 4 MAART 2015 No. 38531 15>-.> providing and roling out clasifcation training to al registered online
distributors;
cordinating joint public awarenes and education campaigns on cyber
safety and digital content clasifcations with online distributors;
liaisng with relevant South African and international media content
regulators, online distributors and law enforcement agencies to combat
child pornography and sexual exploitation on the internet; and
educating the public together with online distributors about he new
Online Regulation Policy and promoting cyber safety.
5. POLICY CONSULTATION PROCES
Public onsultation is central to public policy making proceses to firstly educate
members of the public on the posible interventions to the chalenge at hand,
secondly to also obtain the necesary buy-in that is esential for the suces of the
policy. Public onsultations wil be as inclusive as posible. Consequently, FPB
wil vist al 9 provinces and mount an extensive public onsultation campaign
acros the country.
6. CONSULTATION PARTICIPANTS
Once adopted, the policy wil have an impact on al South Africans and
foreign companies distributing media content in the Republic of South Africa
in relation to the maner in which they engage and use media platforms. In
this regard, regulatory partners identifed below and the industry are urged to
consider the atached Draft Online Regulation Policy and submit heir inputs
or comments to the Film and Publication Board as directed.
ICASA, SABC
WASPA, ISPA
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16 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 2015Universites, NYDA, Film and Media Schols and youth formation
MDDA, DOC, Brand South Africa
Al content broadcasters and Distributors
Telecommunications and Network mobile operators
Online and gaming distributors
Film distributors and content creators, including creators of self generated
content uploaded or posted on social media platforms
FPB Employes at large
J> Clasifers;
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STAATSKOERANT, 4 MAART 2015 No. 38531 17Parents;
Educators;
Civil Society Organisation; and
Internet users and blogers
Law Enforcement Agencies
South African Police Services
National Prosecuting Authority
SIGNED AND DATED AT CENTURION ON THIS / 57)- DAY OF
FEBRUARY 2015
Mrs. NFT Mpumlwana
Council Chairperson
Film and Publication Board
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18 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 2015DRAFT ONLINE REGULATION POLICY /2014
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STAATSKOERANT, 4 MAART 2015 No. 38531 19Table of Contents
1 Introduction
2 Aplication of the policy 8
3 Objectives of the policy
4. Guiding principles of the policy 9
5. Policy on online distribution of digital films & games 10
6 Online distribution of television films & programmes 14
7. Prohibiton against child exploitative media content and clasifcation by the Board of self
created content 15
Maters for the Board to consider 16
9. Checks and balances 16
10. Online distribution licensing fe 17
1. Complaints 17
12. Review of Clasifcation decisions 18
13. Audits of industry clasifcation decisions 18
14. Sanctions regime for industry clasifcation decisions 19
15. Clasifcation decision data base 19
16. Policy review 20
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20 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 2015Abreviations and acronyms:
DOC -Department of Communications
EA -Executive Authority
Board Film and Publication Board
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STAATSKOERANT, 4 MAART 2015 No. 38531 21DEFINITIONS
"Act" means the Films and Publications Act of 196, Act No. 65 of 196, as amended.
"Board" -means the Film and Publication Board
"Online content" in relation to the distribution of ilms, games and certain publications,
means distribution that is conected by computer or electronic devices to one or more other
computers, devices or networks, as through a commercial electronic information service or
the Internet.
"Self-generated content or user-generated content" (UGC) refers to a variety of media
available in a range of modern communications technologies. UGC is often produced
through open colaboration by one or more people or cordinated participants, who interact
to create a product or service online, which they make available to contributors and noncontributors
alike.
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22 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 2015POLICY APROVAL
The signatories below are in favour of the aproval of the Online Content Regulation Policy.
Prepared by Signature
Sipho Risiba Date
Chief Operations Oficer
Recommended by
Themba P Wakashe
Chief Executive Oficer
Recommended by
Mrs Lusanda Rataemane
Chairperson: OPITCOM
Aproved by
Mrs Thoko Mpumlwana
Chairperson: Council FPB
Signature
Date
Signature
Date
Signature
Date
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STAATSKOERANT, 4 MAART 2015 No. 38531 231. INTRODUCTION
The Film and Publication Board (Board) is a public entiy of the Department of
Communications, established in term of the Films and Publications Act 65, 196 (as
amended in 204 and in 209).
The mandate of the Board can be summarised as folows:
To regulate the creation, production, posesion and distribution of ilms, games and
certain publications by way of clasifcation;
1.1.2 To protect children from exposure to disturbing and harmful material and from
premature exposure to adult material;
1.1.3 To criminalise child pornography and the use and exposure of children to
pornography.
Section 18(1) of the Films and Publications Act requires any person who intends to
distribute any film or game and certain publications in the Republic of South Africa first o
register with the Board and to submit o the Board for examination and clasifcation such
film, game or publication. Although the curent legislation is not platform-specifc, the Board's
compliance and clasifcation activites have over the year focused more on physical
platforms and les on the online space, resulting in children being exposed to unclasifed
content acesed through the internet and other mobile platforms.
Media convergence -a new technology trend enabled by the digitsation of media content,
the widespread availabilty of high-sped broadband conections, and the proliferation of
Internet-enabled devices -has fundamentaly transformed the way media content is
distributed and consumed. Consumers can now aces media content acros geographic
boundaries, anytime, anywhere, and however they want it.
Until recently the Board adopted a fragmented aproach in responding to the demands of
industry players and online distributors for a solution to enable them to clasify and distribute
online content in the Republic of South Africa.
Council and several stakeholders have argued strongly for the ned to move from piecemeal
responses that aply the existing clasifcation framework to each new technological
development, towards one that is framed in such a way as to be adaptive to broader
convergent media trends. Further, the Executive authority has also caled for a framework
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24 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 2015that can adapt o 'the rapid pace' of technological change in media available to and
consumed by the South African community.
Strategic object 4 of the Board's five-year strategic plan requires it o ensure the efective
and inovative regulation of content distributed online, mobile and related platforms to
protect children and inform the general public. In response, in August 2014 Council
aproved the Board's Online Content Regulation Strategy. This strategy lists as its core
objectives the folowing:
to ensure clasifcation and compliance monitoring of digitaly-distributed content;
to provide apropriate technology for online content regulation;
to inform and educate the community on the chalenges of digital content; and
to partner with national and international regulators on cros-border egulation.
Further, the Board has recently finalised the review of its legislation, the Films and
Publications Amendment Bil, 2014 ("the Bil"), and submited it to the Minister of
Communications. Once enacted and aplied in conjunction with the aproved Online
Content Regulation Strategy, the Bil wil create a legislative framework that wil ensure a
greater ole for online distributors in clasifying their own content on behalf of the Board,
using the Board's Clasifcation Guidelines and the Act. Further, in the context of the evergreater
convergence of media technologies, platforms and services, and more media being
acesed from the home through high-sped broadband networks, the framework wil also
make it posible for the industry to enter into co-regulation agrements with the Board for the
purposes of content clasifcation and compliance monitoring.
Section 4A of the Act empowers Council, in consultation with the Minister, to isue directives
of general aplication, including clasifcation guidelines, in acordance with maters of
national policy that are consistent with the purpose of this Act. Thus on 16 October 2013
Council resolved to enact an online policy that isues directives on how the Board must
regulate the distribution of online content in the Republic of South Africa.
Against his background, in order to give efect o the above Council resolution, the goals set
out in the Online Content Regulation Strategy, and the Bil, the Online Regulation Policy is
hereby enacted. This policy, read with the Online Regulation Strategy and the Bil, wil also
ensure that clasifcation focuses on media content, rather than on platforms or delivery
technologies. This is necesary because regulatory frameworks for media based upon their
delivery platform have proven to be unsustainable over time.
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STAATSKOERANT, 4 MAART 2015 No. 38531 251.2. The context of media convergence
Developments asociated with media convergence in South Africa include:
increased household and busines aces to high-sped broadband Internet;
the digitsation of media products and services, as sen with the rise of You Tube,
Aple iTunes, and other global digital media platforms; the convergence of media
platforms and services for both established and new media; the globalisation of
media platforms, content and services, making nationaly-based regulations more
dificult o aply;
the aceleration of inovation, characteristic of a more knowledge-based economy;
the rise of user-created content, and a shift in the nature of media users from
audiences to participants; greater media user empowerment, due to greater diversity
of choices of media content and platforms, and the increased abilty to personalise
media; and
the bluring of lines betwen public and private media consumption, as wel as the
dificulty of aplying age-based aces restrictions, as more media are acesed
from the home through converged media platforms.
piecemeal regulatory responses to changes in technologies, markets and consumer
behaviour, resulting in uncertainty for both consumers and industry, and raising
questions about where responsibilties lie for driving change.
2. APLICATION OF THE POLICY
This Online Regulation Policy aplies to any person who distributes or exhibits online any
film, game, or certain publication in the Republic of South Africa. This shal include online
distributors of digital films, games, and certain publications, whether localy or internationaly.
Upon aproval this policy shal have the ful efect and force of law, as stipulated in section
4A of the Act.
3. OBJECTIVES OF THE POLICY
The objective of this policy is to create a regulatory clasifcation and compliance monitoring
framework, giving efect o sections 18(1) and (2) of the Films and Publications Act 65 of
196 as amended ("the Act"), by enabling efective regulation and spedy clasifcation of
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26 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 2015digital content by the Board, and to create an oportunity for co-regulation betwen the
Board and the industry for the clasifcation of digital content distributed on mobile and digital
platforms.
4. GUIDING PRINCIPLES FOR AN ONLINE CONTENT REGULATION POLICY
The Board has identifed eight guiding principles for a policy that aims to provide an efective
framework for the clasifcation and regulation of online media content in South Africa.
The eight guiding principles are that:
(1) South Africans should be able to read, hear, se and participate in media of their choice;
(2) communications and media services available to South Africans should broadly reflect
community standards, while recognising a diversity of views, cultures and ideas in the
community;
(3) children should be protected from material ikely to harm or disturb them;
(4) consumers should be provided with information about media content in a timely and
clear maner, and with a responsive and efective means of adresing their concerns,
including through complaints;
(5) the clasifcation regulatory framework neds to be responsive to technological change
and adaptive to new technologies, platforms and services;
(6) the clasifcation regulatory framework should not impede competion and inovation,
nor disadvantage South African media content and service providers in international
markets;
(7) clasifcation regulation should be kept o the minimum neded to achieve a clear public
purpose; and
(8) clasifcation regulation should be focused on content rather than on platform or means
of delivery.
Against his background, this policy seks to create and enhance coperation betwen the
Board and the industry to ensure uniform clasifcation, labeling and compliance monitoring
of digitaly distributed content.
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STAATSKOERANT, 4 MAART 2015 No. 38531 27Co-regulation betwen the Board and the industry wil also ensure that he industry asists to
eficiently provide clasifcation information to South African consumers under the scope of
the Act.
5. POLICY ON ONLINE DISTRIBUTION OF DIGITAL FILMS, GAMES, AND CERTAIN
PUBLICATIONS
5.1. In order to ensure the uniform clasifcation of content and the efective regulation of
digital content distribution by the Board in the Republic of South Africa, the folowing policy is
hereby enacted:
5.1.1 Any person who intends to distribute any film, game, or certain publication in the
Republic of South Africa shal first comply with section 18(1) of the Act by aplying, in the
prescribed maner, for egistration as film or game and publications distributor.
5.1.2. In the event hat 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 aplication to the Board for the conclusion of an online distribution agrement, in terms of
which the distributor, upon payment of the fe prescribed from time to time by the Minister of
DOC as the Executive Authority, may clasify its online content on behalf of the Board, using
the Board's clasifcation Guidelines and the Act; or
5.1.3 Upon payment of the prescribed fe for each tile submited, submit electronicaly each
digital game or film by providing the Board with a link from which the Board wil aces the
online game or film for clasifcation.
5.1.4 Where it is convenient and practical to do so, the Board may dispatch clasifers to the
distributors' premises for the purposes of clasifying digital content. In such an event he
clasifcation shal be demed to be the clasifcation proces of the Board, and the
distributors shal ensure that he work of clasifers takes place unhindered and without
interference.
5.1.5 In the event hat an online distributor aranges to have online content clasifed by the
Board's clasifers in terms of clause 5.1.4, the distributor shal first satisfy the Board that it
has storage facilties to store al clasifed content for audit and related purposes.
5.1.6 The dispatching of clasifers in terms of clause 5.1.4 shal be subject o the Board and
the online distributor concluding an agrement in terms of which the online distributor,
amongst others, indemnifes the Board for any claim, los or damage arising from the
clasifcation services being rendered at he online distributor's premises.
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28 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 20155.1.7 For the purposes of this policy, the words 'online' and 'digital' are used
interchangeably.
5.1.8 The terms 'distributor 'and 'content provider' are also used interchangeably.
5.1.9 Online distributors of digital content clasifed in terms of either clause 5.1.2 or 5.1.3
shal ensure that, in al content distributed via the various media distribution platforms, they
display the Film and Publication Board clasifcation rating and logo, as prescribed in
Regulation 21 of the Regulations to the Act and as shown in the example below:
by
a
5.2. Clasifcation pursuant o an online distribution agrement
In the event hat a content provider or distributor choses to clasify its own content in terms
of 5.1.2 above, the distributor shal first satisfy the Board that he rating system to be used
for clasifcation is aligned with the Board's clasifcation system and Clasifcation
Guidelines, and that he distributor is capable of generating clasifcation ratings and
symbols as indicated in 5.1.9 above.
5.3. Labeling of digital content distributed online
5.3.1. Upon clasifcation of digital content in terms of either clause 5.1.2 or 5.1.3, al
registered online distributors of digital content shal ensure that, prior to distributing any film,
game or publication online, they submit o the Board an aplication, in the prescribed form,
for permision to use the FPB logo.
5.3.2. Upon granting such permision, the Board shal also isue the online distributor with a
series of barcodes that wil have to be displayed by the content distributor along with the
clasifcation decision.
5.3.3. In al clasifcation decisions for digital content, the online distributor must ensure that
the Board's clasifcation decision and logo is conspicuously displayed on the landing page
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STAATSKOERANT, 4 MAART 2015 No. 38531 29of the website, in the website catalogue of the online distributor's website landing page, at
the point of sale, and during the streaming of the digital content.
5.4. Transitonal arangements
5.4.1 It is hereby recorded that he Board has entered into transitonal agrements with a
number of online distributors who are already distributing digital content in the Republic of
South Africa using a clasifcation rating system not aligned with the Board's Clasifcation
Guidelines and the Act.
5.4.2. Notwithstanding the duration of each individual contract concluded with online
distributors, al online distributors shal ensure that on or before the 31st of March 2016, The
ratings systems used for the clasifcation of content intended for distribution in the Republic
of South Africa are aligned with the Board's Clasifcation Guidelines and the Act.
5.4.2. As at he 31St of March 2016, no online distributor shal be alowed to distribute digital
content in the Republic of South Africa unles such content is clasifed in terms of the
Board's Clasifcation Guidelines, or a system acredited by the Board and aligned with the
Board's clasifcation Guidelines and the Act.
5.4.3. Al content distributed in the Republic of South Africa at he end of the transitonal
period shal have ben clasifed in terms of the Board Clasifcation Guidelines and shal
display the Film and Publication Board clasifcation decision and logo as ilustrated in
clause 5.1.9.
5.5. Authorisation of distributors' clasifers
5.5.1. No clasifcation of online media content shal be undertaken by any distributor unles
the distributor has ben authorised by the Board.
5.5.2 The Board shal not grant authorisation to any distributor unles the distributor satisfies
the Board that it has in place a clasifcation and rating system in terms of which the
clasifcation proces and clasifcation decisions are founded upon the decision-makers
consistently aplying the Act and the Board's Clasifcation Guidelines, adhering to agred
standards, and employing sound decision-making practices.
5.5.3 The object is that al clasifcation decisions, whether made by the Board or by
distributors, wil be made in the same way, using the same clasifcation tols for the same
clasifcation outcome.
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30 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 20155.5.4 To ensure that al distributor clasifers are clasifying content consistently and are
properly aplying the statutory clasifcation criteria, the distributor's clasifers must have
ben trained and certifed by the Board. The Board wil only certify such clasifers if they
have completed training aproved by the Board and have demonstrated competencies in the
aplication of the Board's Clasifcation Guidelines and the Act.
5.5.5 In granting authorisation, the Board shal retain the power periodicaly to renew
authorisations and to undertake refresher training to ensure that clasifers stay up to date
with changes in legislation, including the statutory clasifcation guidelines, and to maintain
their clasifcation skils and knowledge at he required level of competence.
5.5.6 Authorised clasifers may be employed ful-time by major online content distributors,
or they may be engaged by content providers on a clasifcation task basis. Clasifers who
are authorised and trained to met he same minimum requirements and standards may
have greater mobilty and oportunites to work acros media content industries.
5.6. Training
5.6.1 In order to met he training requirements in terms of clause 5.5 above, the Board shal
develop material for a clasifcation course, and shal deliver clasifcation training for online
distributor's clasifers.
5.6.2. The training provided by the Board shal be robust and comprehensive in order to
ensure that here is consistency and acuracy in clasifcation decisions.
5.6.3. Such training shal be conducted by profesionals with apropriate qualifcations to
maintain a high level of public confidence in the quality of clasifcation decision-making and
in the integrity of the self clasifcation arangement.
5.6.4. The training shal include a requirement hat provides for consistent, minimum
clasifcation standards, skils and knowledge for al authorised clasifers by mandating that
they complete the training program provided by the Board.
5.6.5. Only the Board shal the power to determine the methodology and duration of the
training, which may not last more than five days.
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STAATSKOERANT, 4 MAART 2015 No. 38531 316. ONLINE DISTRIBUTION OF TELEVISION FILMS AND PROGRAMMES
6.1. Al digital content in the form of television films and programmes streamed online via the
internet shal first be submited to the Board for pre-distribution clasifcation.
6.2. In relation to online television films and programmes streamed via the internet, the
Board shal in certain circumstances, and for commercial and practical reasons, have the
power to determine that such films, television programs and related content hat have ben
clasifed under an authorised clasifcation system are 'demed' to have an equivalent
Board clasifcation.
6.2. However, to maintain the integrity of the Board's clasifcation scheme, the Board shal
only authorise robust and comprehensive clasifcation proceses that incorporate the
Board's Clasifcation Guidelines and are comparable to those provided for under the Act
and the Board Clasifcation Guidelines as reviewed from time to time. Esentialy, the Board
must be satisfied that authorised clasifcation systems deliver clasifcation decisions
comparable to those that might be made if content were clasifed by the Board's clasifers
operating under the Act.
6.3. Where the Board considers that a particular item of media content has generated
controversy in another jurisdiction, or is likely to have a high profile on release, it shal have
the capacity to cal it in for clasifcation by the Board or to request he content provider to
clasify the product, rather than alow it o be 'demed'. Content providers wil be required to
make similar judgements of their own voliton to minimise the risk of complaints or of an
aplication for eview of the clasifcation.
6.4. The Board's determination concerning what content is to be clasifed by the Board is
intended to operate in paralel with the content provider's determination about content hat is
demed to be clasifed.
6.5. For the purposes of this clause 6, the online distributors shal ensure that heir websites
contain al clasifcation decisions made by the online distributor, along with an explanation
to consumers about how their clasifcation systems work, and what content is 'demed'.
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32 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 20157. PROHIBITION AGAINST CHILD EXPLOITATIVE MEDIA CONTENT AND
CLASIFICATION BY THE BOARD OF SELF-GENERATED CONTENT
The rise of user-created content, suported by technological advancements in 'smart
phones' and the availabilty of user distributor tols such as You Tube and other global digital
media platforms, has shifted the nature of media users from being audiences to being
participants. More and more South Africans, the majority of which are children are using
"Contact services 'such as facebok, twiter The bulk of this media content is unclasifed,
and children are therefore left exposed to unclasifed content on online platforms.
In order to minimise the risk of children's exposure to unclasifed content on online
platforms, it is hereby recorded that:
7.1 user created content includes any publication as defined in section 1 of the Act o
include, inter alia, a drawing, picture, ilustration or painting; recording or any other mesage
or communication, including a visual presentation, placed on any distribution network
including, but not confined to, the internet.
7.2 it is a criminal ofence in terms of section 24C the Act, for any person to distribute or
upload child pornographic images, posts, publications or videos on online distribution
networks or social media platforms for the purposes of child exploitation.
7.3 online distributors must ensure that hey comply fuly with their obligations as set out in
section 24C of the Act by ensuring that hey take reasonable steps as are necesary to
ensure that heir online distribution platforms are not being used for the purposes of
commiting an ofence against children, and report suspicious behaviour by any person using
contact services to the Board and South African Police Services.
7.4. With regard to any other content distributed online, the Board shal have the power to
order an administrator of any online platform to take down any content hat he Board may
dem to be potentialy harmful and disturbing to children of certain ages.
7.5. In the event hat such content is a video clip on YouTube or any other global digital
media platform, the Board may of its own acord refer such video clip to the Clasifcation
Commite of the Board for clasifcation.
7.6. The decision of the Board's Clasifcation Commite shal be final and binding on the
distributors, subject o the online distributor's right o apeal such a decision to the Board's
Apeal's Tribunal.
7.7. Upon clasifcation, the Board shal dispatch a copy of the clasifcation decision and an
invoice payable by the online distributor within 30 days, in respect of the clasifcation of the
content in question.
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STAATSKOERANT, 4 MAART 2015 No. 38531 337.8. The fe payable in respect of the clasifcation of content by the Board in terms of subclause
7.4 above shal be the sum equivalent o what he Board charges per tile in respect
of boxed films or games submited to it for clasifcation.
7.9. Failure to pay the said clasifcation fe within the stipulated period may result either in
the Board withdrawing the online distributor's registration certifcate until the fe is paid, or in
the online distributor being penalised and legal action being taken against he distributor in
terms of section 24A of the Act
7.10. The online distributor shal, from the date of being notifed by the Board in writng of
the clasifcation decision, take down the unclasifed video clip, substiute the same with the
one that has ben clasifed by the Board, and display the Film and Publication Board Logo
and clasifcation decision as ilustrated in clause 5.1.6.
7.1. Where the user-created content is prohibited or ilegal content, the Board shal have
the power, in aditon to ordering the online distributor concerned to take down the content , to refer the ofending and ilegal content o the South African Police Services for criminal
investigation and prosecution.
8. MATERS THE BOARD MUST CONSIDER
8.1. It is important hat consumers are confident hat he online distributor or content
provider's system has ben thoroughly asesed before being authorised. Consumers must
be asured that he online distributor or content provider's systems have ben carefuly
asesed so that he integrity and value of Board clasifcation decisions is not
compromised.
8.2. While no two clasifcation systems wil be entirely aligned, the Board considers it
important hat elements of the Board's Clasifcation Guidelines be reflected in the
authorised clasifcation system, including:
(i) independent decision-making;
(i) regard for community standards, particularly the ned to protect children from harm;
(i) meaningful clasifcation information;
(iv) transparency of decisions and clasifcation proceses;
(v) availabilty and integrity of review mechanisms;
(vi) eficient and acesible public complaints proceses;
(vi) comparable clasifcation categories and criteria, and endorsement by governments in
other jurisdictions.
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34 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 20159. CHECKS AND SAFEGUARDS
9.1. Alowing industry to clasify its own content may raise concerns in certain sectors of
South African society about achieving an aceptable balance betwen content providers'
commercial interests and community neds and concerns.
9.2. Acordingly the Board shal retain the power to monitor industry clasifcation decisionmaking
and to penalise serious breaches.
9.3. In the event hat an online distributor is found to have manipulated or provided false
information to the Board or any other person with the sole object of achieving a clasifcation
decision that advances its own commercial interest, the Board may withdraw the online
distributor's registration certifcate, bar the distributor from the co-regulation regime, and
direct hat al media content belonging to the distributor be submited to the Board for
clasifcation by the Board.
9.4. Under this policy, al industry clasifers, whether they clasify for television networks,
film distributors, or other content providers, are subject o the Board's regulatory oversight.
10. ONLINE DISTRIBUTION LICENSING FE AND CLASIFICATION FE PER TITLE
10.1. No online content distributor shal be authorised by the Board to distribute online
content in the Republic of South Africa unles it has registered with the Board as an online
distributor and has paid the prescribed online distribution licensing fe as determined by the
Minister, and any other fes that he Minister may determine from time to time.
10.2. The above online licensing fe shal be paid anualy, and shal escalate at he rate to
be determined by the Minister.
10.3. Notwithstanding the provision of clause 10.1, the Board shal have the power to charge
a clasifcation fe per tile submited for the clasifcation of digital content distributed in the
Republic of South Africa. In this regard, the clasifcation fe payable shal vary from case to
case, but shal be based on the fe tarif prescribed by the Minister from time to time.
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STAATSKOERANT, 4 MAART 2015 No. 38531 351 COMPLAINTS
1.1. Complaints about he clasifcation of content wil be directed, in the first instance, to
the content provider esponsible for the clasifcation decision. A complainant may lodge a
complaint with the Board where that complainant considers that he complaint has not ben
satisfactorily resolved. Under the Board's model, the Board shal have power to investigate
al valid complaints.
1.2. A content provider or online distributor authorised by the Board to clasify its own
content must develop a complaint-handling mechanism.
1.3. The complaint-handling mechanism must cover:
(i) awarenes and acesibilty of the complaints mechanism;
(i) response time frames, and recording and reporting proceses;
(i) proceses for escalating serious complaints; and
(iv) the review and reclasifcation of clasifcation decisions, where apropriate.
1.4. The Board shal retain the authority to investigate complaints about clasifcation
decisions and about unclasifed or unrestricted media content. In the course of investigating
complaints (especialy those that are more complex or serious), the Board may liaise with
the content provider or online distributor to ascertain how the original complaint was initaly
adresed, to obtain reasons for the clasifcation decision (if the content has ben
clasifed), or to discus options for esolving the complaint.
1.5. The Board may, in response to a valid complaint about media content, isue the
content provider or online distributor with a 'clasify' notice or a 'restrict aces' notice.
1.6. The Board may of its own acord direct he content provider or online distributor to
clasify content or eview the original clasifcation decision, arising from investigation into a
complaint.
12. REVIEWS OF CLASIFICATION DECISIONS
12.1. A review of a clasifcation decision involves the making of a new decision on the
merits, which replaces the original decision.
12.2. Under this policy, al clasifcation decisions for al media content, including television
programs streamed through the internet, are reviewable.
12.3. The Board shal have the power and authority to review al content, including content
that has ben voluntarily clasifed by the online content provider or distributor.
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36 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 201513. AUDITS OF INDUSTRY CLASIFICATION DECISIONS
13.1. As part of the quality-asurance proces and monitoring of industry clasifcation
decision-making, the Board shal have the power to undertake post-clasifcation
audits of media content hat must be clasifed and of media content hat must be
restricted to adults.
13.2. In conducting audits, the Board may draw on the clasifcation experience of its
clasifers as the independent benchmark decision-maker.
13.3. The Board shal use the audits as the primary mechanism by which the Board
proactively manages industry clasifers and clasifcation activites, to maintain a
high standard of decision-making.
13.4. Further, the Board shal use the audits as the means for advising content providers
and/or individual clasifers about any isues identifed with the clasifcation
decision-making proces, and may initate remedial action to asist clasifers to
improve their job performance. This might involve liaising with the online distributor or
content provider and sugesting aditonal training or supervision. In some cases,
audit outcomes might require content providers to revisit decisions as apropriate.
13.5. The Board wil also use audits as an evidence base of serious and repeated
misconduct, in which case the Board wil have the power to impose sanctions.
14. SANCTIONS REGIME FOR INDUSTRY CLASIFIERS
14.1. Sanctions are another means of protecting consumers and of ensuring that he
integrity of the entire clasifcation scheme is maintained. Sanctions are intended to be a
`last resort' to prevent industry clasifers from continuing to make clasifcation decisions
that are repeatedly misleading, incorect, or grosly inadequate.
14.2. In keping with the above principle, al content provider or online distributors
authorised to distribute online content in the Republic of South Africa are subject o the
penalty regime of the Board in terms of the Act, this policy, and any other directive that he
Board may isue from time to time.
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STAATSKOERANT, 4 MAART 2015 No. 38531 3714.3. The Board shal have the power to impose fines and/or withdraw the authorisation of
any content provider or online distributor who repeatedly makes decisions that are
misleading, incorect, or grosly inadequate.
15. CLASIFICATION DECISIONS DATABASE
15.1. Every content provider or online distributor authorised in terms of this policy shal
establish and administer a centralised database to record clasifcation decisions made by
the clasifers of the content provider or online distributor.
15.2. The database shal include details such as the clasifcation decision and any
consumer advice, whether it is a Board or industry clasifcation, the responsible
organisation or clasifer, and whether the content is original or modifed.
15.3. The Board shal publish on its website a central and reliable database to enable online
distributors and content provider to check whether content has already ben clasifed.
16. POLICY REVIEW
This policy shal be reviewed anualy, based on legal and operational requirements.
16.1 The Chief Operations Oficer ("COO") shal cordinate the review of the policy.
16.2. This policy shal be reviewed when required by the Ofice of the Chief Operations
Oficer ("COO"), and aproved by the Council. It shal become efective from the date
aproved or indicated by the Council.
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38 No. 38531 GOVERNMENT GAZETTE, 4 MARCH 2015
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