Tech Law: It’s not April Fools’ Day — it’s the FPB
by Paul Jacobson (@pauljacobson) One quality the Film and Publication Board (FPB) does not lack is ambition! Its Draft Online Regulation Policy, published in March 2015, picks up where its 2014 Strategic Plan left off and gives more details about the board’s plan in which it declared its intention to combat a terrible modern evil: the internet.
Unfortunately the board, once again, demonstrates its ignorance of what the internet actually is and how it works but, perhaps, those are just minor details.
The purpose of this Online Regulation policy (I’ll refer to it as the “policy”) is to direct the FPB on how to classify and regulate the distribution of online content in the Republic of South Africa. The reason for this is the tried and tested “surely you wouldn’t oppose this” rationale:
… to ensure cyber safety of children and that children are protected from disturbing and harmful content access through social media and mobile platforms.
It’s about the children
At least there isn’t some justification to do with fighting terrorism or tax evasion. It’s about the children and that is why the FPB has decided it’s necessary to take on this monumental burden of regulating the internet. Someone has to do it.
The FPB has referenced a number of recent incidents online that, it argues, reinforce the need for the policy. These incidents include the “Big Black Braai” of February 2015; a sexting scandal involving nude photos of teenage boys in October 2014; an uploaded video showing a popular KZN pastor walking around naked in his home and a video of a Pretoria pastor telling his congregation (which included children) that they should drink petrol to prove that humans can eat whatever God provides us with. The board’s conclusions about these incidents are telling:
“Upon classification, it was found by the Classification Committee of the FPB that, although the themes of the video aforementioned are centred upon religion, faith, scripture, miracles and beliefs, the video contained some instances of harmful imitative acts and techniques of a moderate nature. The footage of human consumption of petrol which is shown 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 appears to use religion to encourage or promote harmful behaviour, which is in contravention of Section 18(3) (b)(ii) of the Act.”
The new moral police
Are these incidents harmful, even illegal? Sure, many of them are but the FPB’s focus here is upon human conduct and effectively using its censorship mandate to become the new moral police. Instead, most of these incidents should be dealt with by the regular police because of the harm they caused, not become grounds for a new broad initiative to censor the internet.
The board then goes on to explain that the current framework has failed to adequately address “the challenges of media convergence and the volume of media content which is now available to South Africans” and that an overarching regulatory document would draw the board’s various mechanisms together and, with apologies to JRR Tolkein, “bring them all and in the darkness bind them”.
Two of the policy’s features are that it is “platform-neutral” and has a scope that covers pretty much any publication on the internet including “You-Tube, facebook and Twitter” [sic]. Platform-neutrality is good for legislation but the policy’s scope is beyond ambitious. It is based upon a fundamental ignorance of how the internet works and its scale.
Underestimates the true scale of the internet
The board’s understanding of the “volume of media content” available to South Africans somewhat underestimates the true scale of the internet: There are almost 1bn websites on the web and YouTube receives more than 300 hours of video content every minute.
The FPB acknowledges that it is “impractical” to expect all “media content, particularly self-generated content” to be classified and states that it is the “responsibility of the platform provider”, in consultation with the board, to work out just how much should be classified. In other words, every “platform provider” —ranging from Google, Facebook, Twitter and others to smaller hosts — is going to be expected to consult with the board on just what should be subject to its classification procedures. This is the same board whose members don’t seem to have actually used the internet all that much since the early 2000s, at the latest.
It is difficult to decide where to begin once you start reading the policy in more detail. To say the policy is ambitious is even more of an understatement than the FPB’s statements about the scale of the internet and the challenges it faces. The board fully expects to be able to interpose itself into the global digital-content distribution web that is the internet and that all the stakeholders will simply submit to its self-imposed authority. I keep checking the date to make sure this isn’t an elaborate hoax but it’s right there, in officious black and white.
Online content distributors to register with FPB
Besides seeking to impose a classification system on an environment it couldn’t possibly hope to accommodate, the FPB also expects every “online content distributor” to register with the board before it may “distribute online content in the Republic of South Africa” and pay the “prescribed online distribution licensing fee”.
As the country struggles to build and maintain an infrastructure that may, one day, meet its basic infrastructural requirements, the FPB is embarking upon an ultimately futile exercise to censor the internet. The board literally has no idea what it is doing or the scale of what it self-righteously insists it is entitled to do. The policy will be utterly unenforceable and, if anyone takes it seriously, it will only result in a reduction of content available in SA.
SA will learn a painful lesson that European publishers learned when they lobbied for laws seeking to censor the internet. Spain passed an absurd law in 2014 that sought to prevent Google from publishing news excerpts from Spanish publishers in Google News. Google complied with the law and closed its Spanish Google News service.
Spanish publishers suddenly found their revenue plummeting because it relied upon links from Google News to a significant degree. It wasn’t long after that Spanish publishers were begging the EU and the Spanish government to reverse the decision.
The FPB policy’s scope is far greater and so, too, will the consequences be. At best for the SA public, this policy will be mostly ignored and superficially enforced by an increasingly outraged FPB that will seek even more severe remedies or, at worst, it will begin to dramatically reduce the availability of digital content in SA, and add additional resource and cost burdens to the load service providers already bear.
If the true purpose of the policy is to protect SA’s children (which, if you read between the bluster, seems to be the primary goal), then this is a case of the FPB seeing this issue as a metaphorical nail, simply because the only tool it has available is a hammer.
Not the way to protect children
Children should be protected from content that is not age-appropriate or is otherwise harmful (hate speech, incitements to violence and so on) and there are ways to tackle those challenges more effectively. The policy is not one of those ways.
The FPB has extended public consultations on this absurd framework. Anyone who has an interest in a rational approach to tackling threats to children that don’t include censoring the Internet should submit comments.
South African-born Paul Jacobson (@pauljacobson) is a content marketing specialist and reformed internet lawyer, now based in Israel. He has a passion for the social web, internet trends, digital marketing and related themes such as online reputation management and privacy. He contributes the regular “Tech Law” column focusing on issues in the digital marketing space to MarkLives.com. CC BY-SA 2.5
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