FPB Bill could chill free speech online - Phumzile Van Damme

DA MP says legislation gives Board power to impose draconian fines for content on social media

DA to raise its objection to Internet Censorship Bill in tomorrow’s Committee

22 February 2016

The DA intends to raise its objections to number of problematic clauses in a bill intended to give the Films and Publications Board (FPB) wide-sweeping powers to censor the Internet as contained in the Films and Publications Amendment Bill scheduled to be engaged in tomorrow’s sitting on the Communications Portfolio Committee. 

The DA fears that if this Bill is pushed through Parliament without due consideration, it will chill free speech enshrined in the Bill of Rights.

Introduced in Parliament in November last year, the FBP Amendment Bill seeks to extend the reach of the FPB to include online content and establish a “Penalty Committee” with powers to impose heavy fines and criminal prosecution of those deemed to have contravened its provisions.

Of particular concern is the proposed imposition of fines up to R150 000 or imprisonment by a court of law for“knowingly distributes, in any electronic medium, including the internet and social networking sites, any film, game, or publication which advocates propaganda for war, incites violence, or advocates hate speech”. 

This means that the FPB, and in turn, the Minister of Communications, Faith Muthambi, will have powers to impose fines and refer any “offenders” to the National Prosecuting Authority (NPA) for prosecution for the content of their posts on Facebook, Twitter and any other social media sites deemed to have fallen foul of the provision. 

Such wide-ranging powers of censorship over all social media posts need to be carefully considered and worded in such a way that it would prevent it being abused by the government to censor, and curb free speech. A clear distinction must be made between free speech and hate speech as defined in the Constitution. 

Other problematic clauses of the Amendment Bill include:

S5 which gives the Minister the power to appoint the Penalty Committee in consultation with Cabinet. The Penalty Committee will have amongst other powers, the right to impose fines of up to R150 000 and refer cases for prosecution for contraventions of the FPB Act. A body with such powers should be appointed in consultation with Parliament, and not the Minister and Cabinet to prevent a situation where the Penalty Committee becomes a political hit-squad.

S6B(1): which gives the CEO of the FPB undue influence in deciding the sanctions of the Penalty Committee, as well as decisions for criminal prosecution. The Penalty Committee should remain entirely independent, and not operate under any influence of the CEO, to prevent bias, perceived or otherwise. 

S18 usurps the powers of ICASA, and oversteps the FPB’s mandate, by stating that ICASA may not issue or renew any broadcasting license to a broadcaster who also streams content through the Internet, unless such broadcaster is also registered with the Board as a distributor. This creates an unnecessary duplication of administration and regulation. 

It is to be welcomed that the Amendment Bill’s seeks to outlaw revenge porn, by prohibiting the publication through any electronic medium including the internet and social networking sites, private sexual photographs or films if the publication is without consent of the subject, or intended to distress. Revenge porn has become a major problem in the age of the internet, affecting mostly women, and it is imperative that it is legislated against. However, the Amendment Bill in its current form leaves large scope for abuse which parliament cannot allow.

The DA looks forward to engaging with the Department of Communications, the FPB, Committee Members and the public on this Bill. 

It is imperative that we guard against any unnecessary censorship and infringement of free speech. For our democracy to thrive, it is important that free speech, and not hate speech, is protected.

Statement issued by Phumzile Van Damme MP, DA Shadow Minister of Communications, 22 February 2016