By Carla Collett, a Partner & Jodi Hardy, a Candidate Attorney at Webber Wentzel
Draft regulations to the Films and Publications Amendment Act, which lay down the conditions for acquiring permits to self-classify content were recently published
Draft Film and Publications Amendment Regulations were recently published to align the regulatory framework with the Films and Publications Amendment Act 11, of 2019 (Amendment Act). The Amendment Act has been signed into law but will only come into force and effect on a date to be proclaimed by the President. The Amendment Act and Draft Regulations apply to the distribution or exhibition of films (including series), games and publications (content).
The aims of both the Amendment Act and the Draft Regulations include catering for the evolving way in which people consume content, and they make provision for online content distribution (which includes streaming). The previous position was that commercial online content distributors (online distributors) had either to: submit content available on their platforms for classification by the Film and Publication Board (FPB); or enter into individual exemption agreements with the FPB, which permitted and regulated the self-classification of content by online distributors. The Amendment Act now enables online distributors to self-classify content on application, payment of a prescribed fee and the issue of a permit by the FPB.
Some notable provisions of the Draft Regulations which online distributors should be aware of:
- an application for a permit must be accompanied by supporting documentation, including a declaration in which the applicant warrants that it complies with all applicable laws and regulations and undertakes to maintain compliance;
- an application for a permit must be made on an annual basis, so submission of supporting documentation and payment of the prescribed fee must be made annually;
- the registration certificate which will be issued by the FPB to the online distributor must be displayed conspicuously on the platform;
- should an online distributor who has been issued a permit wish to distribute online any film, game or publication, it must self-classify the content (this provision appears to be more onerous than traditional distributors’ obligations, since they are only required to classify publications in limited circumstances);
- an online distributor who has been issued a permit must display the classification on the details page of the applicable content;
- an online distributor who has been issued a permit must provide the FPB on a monthly basis with a product list of all content offered for sale or hire on the platform;
- if any content is in conflict with, or the online distributor does not classify content in accordance with the Amendment Act, the Draft Regulations or the Classification Guidelines and fails to remedy the non-compliance within 30 days of receiving written notice from the FPB, the permit shall be suspended;
- representatives of the online distributor responsible for classification of content must attend a training workshop by the FPB at least two times per year; and
- for the duration of the permit, the FPB shall be entitled to have access to the content and the classification decisions of the online distributor for compliance monitoring and the FPB can submit written queries to the online distributor.
The online content distribution space is fast evolving and so online distributors would be well advised to seek guidance in ensuring that they comply with the rapidly developing legal framework. Alternatively, online distributors run the risk of fines up to ZAR750 000 and/or five years imprisonment for each act of non-compliance.