Author: Imraan Mahomed – Director
Proposed amendment to the Films and Publications Act are welcomed particularly regarding harmful content and hate speech.
The Films and Publications Amendment Act which has been ratified but is not yet in operation handles essential aspects of publication of harmful content and hate speech and has a wide-ranging effect.
In early October 2029, President Cyril Ramaphosa ratified the Act but it will only come into operation on a future date to be declared by the President. The Act is important as it impacts anyone who distributes content online and by implication impacts most, if not all, employers in the categories below and it introduces necessary regulation of harmful content and hate speech.
The Act affects:
persons who distribute online content;
the commercial distribution of content (including people who distribute content online for commercial purposes) as well as non-commercial distributors (who distribute content for their own private use)- this involves many industries and organisations
Internet Service Providers (ISPs), who must remove and report certain content or be subject to a fine.
The Act provides that any ISP which has knowledge that its services are being used for the distribution or hosting of content that incites imminent violence; propaganda for war; advocates hatred against a person or an identifiable group or amounts to child pornography must:
immediately remove the content; and furnish the Film and Publications Board, or a member of the South African Police Service (SAPS), with information of the identity of the person who published the prohibited content.
A failure to do so could result in a fine not exceeding ZAR50 000 and/or imprisonment for a period not exceeding six months – an amendment which may go some way towards reducing online harassment.
The Act also regulates content uploaded by social media users, bloggers and influencers. T
A failure to do so could result in a fine not exceeding ZAR50 000 and/or imprisonment for a period not exceeding six months – an amendment which may go some way towards reducing online harassment.
The Act also regulates content uploaded by social media users, bloggers and influencers. There are criminal penalties for distributing content that amounts to propaganda for war, incites violence or which advocates hatred against a person or an identifiable group or which amounts to child pornography.
The Act now criminalises the intentional distribution of private sexual photographs or films without the prior consent of the subject of such photographs or film.
It is hoped that the Act will come into operation in the next few months and will not be delayed by the decision of the Supreme Court of Appeal handed down in late November 2019 in which the court declared section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 2000 (“PEPUDA”) (the provision dealing with hate speech) unconstitutional. This was in the case of Qwelane v SAHRC & others [2019] ZASCA 167.
The court found that: “It is clear that the legislature wanted to regulate hate speech as broadly as possible. Unfortunately, it did not do so with the necessary precision and within constitutional bounds.”
Section 10(1) of PEPUDA reads as follows:
“Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to –
(a) be hurtful;
(b) be harmful or to incite harm;
(c) promote or propagate hatred.”
Section 10(2) of PEPUDA provides as follows: “Without prejudice to any remedies of a civil nature under this Act, the court may, in accordance with section 21(2)(n) and where appropriate, refer any case dealing with the publication, advocacy, propagation or communication of hate speech as contemplated in subsection (1), to the Director of Public Prosecutions having jurisdiction for the institution of criminal proceedings in terms of the common law or relevant legislation.”
Section 16 of the Constitution reads as follows:
“(1) Everyone has the right to freedom of expression, which includes -
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to -
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”
The above sections of PEPUDA and the Constitution are now also located in part in the protections in the Films and Publications Amendment Act.
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