The Film and Publication Board (FPB) has said that the new Films and Publications Amendment Bill will let it take action against distributors who do not comply with its regulations.
While it stops short of naming Netflix directly, the international streaming company has been a vocal opponent of the FPB’s attempts to charge content distributors who operate online an annual “licence fee”.
The FPB issued a statement on Friday welcoming President Cyril Ramaphosa’s signing of the Films and Publications Amendment Bill.
Also known as the “Internet censorship bill”, the president signed the controversial bill into law on 2 October along with three other bills.
Lawyers have criticised the Films and Publications Amendment Bill for being poorly written and have warned that there is potential that the law could be abused to stifle freedom of speech in South Africa.
Gunning for Netflix
The FPB’s statement regarding the bill said nothing about its attempt to regulate “non-commercial” distributors or hate speech, nor about the introduction of punishments for distributing revenge porn.
Instead, the FPB focused on the power it says the bill gives it to go after content distributors who don’t comply with its regulations:
“This will assist in providing regulatory certainty on the mandate of the FPB for distributors of films and games online and on traditional platforms of content distribution. The Bill empowers the FPB by ensuring the Board can take administrative action and issue administrative sanctions against non-compliant distributors.”
While Netflix is not the online streaming video provider operating in South Africa to refuse to pay the FPB’s “licensing fee for online distribution”, it is the most prominent.
“The Bill is a victory for South African consumers as it will ensure they have public regulatory instruments enabling them to hold online companies accountable, should their rights not be adequately protected,” the FPB said.
Under its current tariff regime, the FPB has a flat fee for online distributors of R795,000 per year to allow them to “self classify” content. Such distributors would need to send their own classifiers to the FPB for training first.
Proposed new tariffs, which have been in draft since 2017, will require online content distributors to pay an annual “licence fee” based on the number of titles they offer.
At current estimates, Netflix would have to pay at least R1.3 million in licence fees for 2019 if the proposed tariffs are approved.
Netflix did not comment when asked about the Film and Publications Amendment Bill being signed into law.
FPB has no right to regulate the Internet — Netflix (2017)
In 2017, Netflix told MyBroadband that it does try to be a good player when it comes to local age restrictions – and as a rule, it will comply with legitimate local regulations.
It also tries to work with local regulators to self-rate content, which Netflix said allows it to take a nimble approach to age restrictions.
However, it does not believe the FPB has the right to regulate the Internet.
“The whole benefit of Netflix is being able to watch our content anywhere in the world at the same time as everyone else,” Netflix said at the time.
If every piece of content Netflix plans on releasing has to be watched by committees of censors, global simultaneous releases won’t be possible.
Netflix also warned that over-regulating content can cause price increases, and may result in content creators finding it impossible to please all ratings bodies around the world. This, in turn, will impact on the freedom to create, it argued.
It is worth noting that while Netflix is renowned for the free reign it gives to artists, it has also complied with the demands of restrictive regimes.
Patriot Act, a comedy news programme starring former Daily Show correspondent Hasan Minhaj, ran afoul of Saudi Arabian censors for his criticism of the Saudi crown prince, Mohammed bin Salman.
Netflix capitulated and made the episode inaccessible to subscribers in Saudi Arabia. However, Minhaj later pointed out that the episode was still available through the show’s YouTube channel. Minhaj said that the ban simply drove more people in Saudi Arabia to seek out the episode on YouTube.
It’s not only in Saudi Arabia where Netflix is facing pressure regarding the content it has on offer.
It’s also not only South Africa’s censors giving the streaming video platform uphill.
The Turkish government has published regulations which require all online content providers to get broadcasting licences from RTUK, the country’s radio and TV regulator. Online news websites in Turkey will be subject to the same regulations.
While there are differences between the FPB and Turkish regulator’s approach, the warnings from legal professionals are echoes of one another: this is an attempt by the government to control what people can say online, and is a huge concern for people critical of those in power.