President Cyril Ramaphosa has assented to the Films and Publications Amendment Act with the new law becoming operational from 1 March 2022.
The regulations primarily apply to the sale, hiring and streaming of content on various digital platforms in South Africa.
However, the Act also introduces much stricter regulations around the distribution of online content in the country – including through social media.
No person may expose, through any medium, including the internet and social media, a private sexual photograph or film if the disclosure is made:
- Without the consent of the individual or individuals who appear in the photograph or film;
- With the intention of causing that individual harm.
This will not apply if the person reasonably believed that the disclosure was necessary for the purposes of preventing, detecting or investigating crime.
Similarly, the above will not apply if the individual who appears in the photograph or film might have consented to the original creation of such photograph or film.
A photograph or film is considered ‘private’ if, judging from the context in which the photograph or film is taken or made, it was not intended by any individual in the photograph or film to be seen by others.
Any person who knowingly distributes private sexual photographs and films in any medium including the internet and social media, without prior consent of the individual or individuals, shall be guilty of an offence and liable upon conviction to a fine not exceeding R150,000 or to imprisonment for a period not exceeding two years.
Any person who knowingly distributes ‘hate speech’ in any medium which amounts to propaganda for war, incites imminent violence, or advocates hate speech, shall be guilty of an offence and liable upon conviction, to a fine not exceeding R150,000 or to imprisonment for a period not exceeding two years.
Hate speech includes words that could reasonably be construed to demonstrate a clear intention to be harmful, to incite harm and promote or propagate hatred against the said person or identifiable group.
If an internet access provider has knowledge that its services are being used for the hosting or distribution of child pornography, propaganda for war, incitement of imminent violence or advocating hatred based on an identifiable group characteristic it shall immediately remove this content, or be subject to a fine.
Notably, some of the above changes have previously come under scrutiny from members of the industry and the public, over concerns that it would be used as a means of censorship for online content.
This has led to the bill being dubbed the ‘internet censorship bill’ as it has made its way through parliament.