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New rules for sharing content on WhatsApp, Facebook and other online platforms in South Africa

| Legislation

The Film and Publications Board (FPB) has published three new documents that serve as industry codes and guidelines on how to handle “harmful content” on various online platforms and peer-to-peer networks in South Africa.

The documents are open for public comment for 15 business days, ending 8 September 2023.

The first document serves as an industry code for the prevention of online harm, which is applicable to all roleplayers in the online space.

In terms of the Film and Publications Act, all harmful content is prohibited from online platforms in South Africa, including child sexual abuse material (CSAM), so-called revenge porn, hate speech, or content that amounts to propaganda for war, incitement of imminent violence or advocacy of hate based on identifiable group characteristics that incites harm.

“Due to the proliferation of child sexual abuse material cases that the FPB is dealing with on a daily basis, and the amount of harmful content distributed online, as the content regulatory authority of South Africa, the FPB is obligated to enhance the way it regulates such prohibited and or harmful content distributed online,” it said.

The code makes it compulsory for players in the online space to have mechanisms in place to mitigate the impact of online harm, including a set of minimum standards that must be adhered to.

This includes all role players, such as commercial online distributors, social media platforms and service providers.

  • These players may not host or distribute prohibited content.
  • Where they become aware of such content, they must immediately suspend access to the content.
  • Where required by law, such content must be reported to the FPB or the SAPS.
  • Consumer support must be made easily available through any means of communication
  • Systems should be in place for consumers to be able to lodge complaints – players should acknowledge receipt of complaints expeditiously

Prohibited content includes:

  • Explicit sexual conduct which violates or shows disrespect for the rights or human dignity of any person
  • Beastiality, incest, rape, conduct or an act which is degrading to human beings
  • Explicit infliction of domestic violence
  • Explicit visual presentations of extreme violence

Other provisions include mechanisms for reporting to the FPB, managing child-friendly spaces and specific protocols around CSAM.

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When is content harmful?

Given the flexible and often subjective interpretation of what constitutes “harmful” material, the FPB has published a second guideline that tries to narrow it down and make such content clearer to industry players and South Africans at large.

Broadly, the FPB defines “harmful” content as content causing emotional, psychological or moral distress to a person, whether it be through a film, game or publication through any online or offline medium – including through the internet.

However, in determining whether content is harmful, the FPB said that it has to be considered in the legal framework that guides freedom of expression and freedom of speech, and the limitations therein.

In determining whether the content is harmful, it should be assessed in terms of the following:

  • The Constitutional and legal framework
  • Potentiality of harm (including content, intent, effects and consequences, legal standards and precedents, social impact and community perception, etc)
  • Context of the content (including the platform/setting, audience, historical or social background, position and influence, tone and rhetoric, etc)
  • Legal definitions of hate speech
  • Other limitations, ie, freedom of expression

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