On 25 August 2022, the Minister of Communications and Digital Technologies published the Films and Publications Amendment Regulations, 2022, (“Regulations”) which came into effect on 2 September 2022. The Regulations provide clarity and guidelines regarding the implementation of the Films and Publications Amendment Act, 2019 that came into force on 1 March 2022.

Registration requirements

The Regulations apply to all distributors of films, publications, and games that are distributed and exhibited in South Africa.

All distributors of films and games must register with the Films and Publications Board (“FPB”) through the prescribed form or on the online system available on the FPB website. The registration must be accompanied by:

• proof of registration of the business of the distributor in terms of the applicable legislation;
• a document confirming that the applicant's tax affairs are in order;
• a declaration from the applicant regarding its compliance with the laws and regulations applicable to it, as well as its obligations as a distributor; and
• proof of payment of the prescribed registration fee.

Upon submission of the application, the FPB may issue the applicant with a registration certificate that is valid for one year or a temporary registration certificate that is valid for three months. When issuing the registration certificates, the FPB may also impose any conditions it considers necessary for the better achievement of the objects and purposes of the Films and Publications Act, 1996 (“FPA”). 

Distributors must ensure that the registration certificate, once issued, is displayed conspicuously inside all its premises and registered businesses or on the platforms which are used to distribute the content.

An application for the renewal of a registration certificate must be made 30 days prior to its expiry. The registration certificate will be deemed to be valid until the outcome of the renewal application has been communicated to the distributor.  If a renewal application is not submitted within 30 days from the date of expiry of the registration certificate, the distributor will cease to be registered as a distributor under the Regulations.

Classification and display requirements

An application for the classification of a film must be accompanied by a copy of the film, and where the film is intended for public entertainment, the applicant must, at its own expense, arrange for the screening of that film to the FPB at a venue and on a date and time agreed to by the FPB.

Applications for classification of games must be accompanied by a written report describing the game and its classifiable elements, as well as a recording of the game as prescribed in the Classification Guidelines of the FPB.

All publications, films and games that have been classified must display a label of classification in accordance with the FPB’s classification decision.

Every advertisement for a film or game that has been classified must display, conspicuously and clearly visible on the poster or in the advertisement, the classification, age restriction, consumer advice and any other condition imposed on the distribution of that film or game or the letters “TBC” to indicate that the film or game is yet to be classified.

An application for the re-classification of a publication can only be made after a year from the date when the publication, film or game was first classified.

Publications that contain explicit sexual conduct, advocate propaganda for war, incite violence, or advocate hatred based on any identifiable group characteristic and constitute incitement to cause harm must be submitted for examination and classification before they are distributed in South Africa. 

Publications which contain explicit sexual conduct must be distributed in a non-transparent wrapper marked "X18", with the certificate of classification conspicuously displayed on the bottom right hand corner of the magazine cover.

Classification process

The classification committees are tasked with examining and determining the classification and ratings of all publications, films, and games submitted to the FPB. Content will be examined by each classification committee member, who will also provide their opinion as to the rating of the content in a report. The classification committee will convene to discuss the publication in order to reach consensus or obtain a majority vote regarding the final classification and rating of that publication, film or game. The classification committee will issue a final classification committee report, specifying the reasons for that decision with reference to the Classification Guidelines of the FPB and the relevant sections of the FPA.

Should a classification committee fail to make a majority decision, the classification committee will have to ask the FPB to appoint an additional classifier to that classification committee as the tie breaker. In the event of this happening, the classification procedure will start anew.

The classification committee may also request the FPB to appoint an expert to assist the classification committee in the classification or rating of a publication, film or game. Experts are not entitled to vote on the classification or rating of the content.

If the classification committee discovers an image or scene of child pornography during any classification process, the process will have to stop. If the classification committee is satisfied that the image or scene is used for predominantly aesthetic purposes and the image or scene does not infringe the objectives of the FAP, the classification process may continue. The reports will be submitted to a certified content analyst at the FPB who is tasked with analysing the publication, film or game in order to determine whether the content contains child pornography.

If the content analyst confirms that the content does contain child pornography, the classification report, together with the assessment by the certified content analyst, will be submitted to the Chief Executive Officer of the FPB who will submit them to the South African Police Service and National Director of Public Prosecutions.

The CEO must inform the applicant who submitted the publication, film or game for classification of the decision to refuse to classify the publication, film or game and of his or her right to appeal to the Appeal Tribunal within 30 days from the date of such notification.

If the appeal is heard and the CEO’s decision is confirmed, or where the applicant fails to launch an appeal to the Appeal Tribunal, the applicant or distributor will be asked to surrender all publications, films or games and other material that contain child pornography to the FPB, who will hand it over to the South African Police Service for criminal investigation or prosecution.

Procedure for application for self-classification of films, games and publications

An commercial online distributor may apply for an annual permit to conduct self-classifications of publications, films or games. If approved, the FPB must issue the applicant with a permit within seven days. The purpose of the permit is to recognise distributors who are authorised commercial online distributors that can undertake self-classification of content it distributes on its online distribution platform.

If a permit has been issued and content has been self-classified as “XX” and “X18”, the commercial online distributor must inform the FPB within seven days of the rating, so that the FPB can publish these classifications in the Government Gazette. 

Accreditation of a foreign or international classification system.

In terms of section 18D of the FPA, a commercial online distributor can apply to the FPB for the accreditation of classification ratings issued by any foreign or international classification authority. The applicant must be able to demonstrate that its online service will be accessible to the FPB for compliance, monitoring and auditing purposes.  The applicant must also show that the foreign or international ratings it relies on align with the FPB’s ratings in terms of the Classification Guidelines of the FPB. The accreditation of classification ratings issued by any foreign or international classification authority or body approved by the FPB is valid for one year and may be renewed annually.

Exemptions

Films intended for exhibition at a film festival that have content that includes educational or cultural materials endorsed by learning institutions, is of public interest, or promotes gender equality, are exempt from the full classification requirements. An application for exemption must be submitted 30 days prior to the date of the festival.

If the exemption is granted, the applicant must ensure that, before the screening, the classification rating allocated by the FPB and a cautionary message is displayed, indicating that the film: 

• was exempt from full classification at the request of the applicant;
• was classified by the FPB in terms of section 18 of the FPA; and
• may not be screened without a full classification at any other event or venue.

Any distributor who intends to apply for an exemption to exhibit or distribute a publication, film or game classified as "X18" at a physical premise, must first obtain a licence to conduct the business of adult premises, issued by a licensing authority in terms of the Businesses Act, 1991, before submitting an application for an exemption. In the application, the distributor must provide details on how it will ensure that:

• children under the age of 18 will not be able to access a film or game classified as “X18” online or any promotion of such a film or game;
• the classification and age restriction are clearly displayed on the screen of the user throughout the screening;
• the user has confirmed that he or she is 18 years or older prior to consuming the content;
• it will not distribute any promotion of the film or game to be accessed without it being paid for by way of a credit card or another child secure method agreed to by the FPB; and
• it will keep a register, solely for the distributor’s private records, for one year from the date on which distribution took place, indicating:
  • all instances where access was granted to a user; and
  • the user’s name, address and verified age.

Obligations of internet service providers to register with the FPB

Every internet service provider must apply to the FPB for registration as an internet service provider. The application must indicate all measures or steps taken or put in place to ensure that children are not exposed to pornography. The FPB may require an internet service provider to demonstrate from time to time that the measures it has put in place are still effective.

Appeals Tribunal and launching an appeal

Schedule 2 of the Regulations sets out all relevant processes and procedures in the Appeals Tribunal, including the procedure for launching an appeal. 

In conclusion, the Films and Publications Amendment Act, 2019 introduced a number of changes to regulations on content. Some of these changes were met with contention, and only time will tell whether the Regulations will be able to appease some of the criticisms of the amendments while still regulating content robustly.

Ridwaan Boda

Corporate Commercial Executive

[email protected]

Naledi Ramoabi

Corporate Commercial Candidate Legal Practitioner

[email protected]