In depth

The draft Films and Publications Amendment Regulations 2020 (Regulations) which were recently published for public comment in South Africa, have significant implications for online gaming companies in their current form. The Regulations apply to the sale and hiring of digital content, including gaming content, made available on various digital platforms in South Africa. 

The Film and Publications Act (FPA) provides for, amongst other things, the classification of certain films, games and publications as well as overseeing the establishment of the Film and Publications Board (FPB) to administer the classification process and other matters. Following the growth of electronic communications, social media platforms and the availability of digital content, it was deemed necessary to extend the operations of the FPA to cater for the creation, possession, production and distribution of online content.

As a result, the Films and Publications Amendment Act 11 of 2019 (FPAA) was passed by Parliament and although it has been signed by the President, it will only come into operation on a still-to-be proclaimed date. The FPAA was heavily criticized as it made its way through the legislative process. Termed the "Internet Censorship Bill", in the context of the FPB's attempt to regulate 'harmful content', commentators argued it was in contravention of the right to freedom of expression, as provided for in South Africa's Constitution. 

The FPAA Regulations now clarify some of these aspects under the FPAA and will replace the existing regulations of the FPA. 

Registration requirements

In terms of the FPAA and the Regulations, all commercial online distributors will be required to register with, and submit all content to, the FPB for classification. Alternatively, online distributors will have to apply to the FPB's Council for self-classification accreditation or for approval to use the classification ratings issued by a foreign or international classification authority. 

This is a substantial move away from the existing provisions of the FPA, in terms of which the classification of films and games only applies to the activities of selling, hiring out or offering or keeping such content for sale or hire.

The requirement to register and obtain a classification for all content made available online by commercial online distributors is cumbersome, administratively burdensome and out of step with international approaches to the regulation of content on global platforms.

The Regulations detail the administrative framework applicable to the registration of distributors and exhibitors of films (including television series) and games in South Africa. While provision for the payment of a prescribed fee is indicated, it is unfortunate that the proposed fees for such applications were not published.  

Of particular concern is regulation 2.3.3 of the Regulations, which provides that when the FPB issues a registration certificate, it can impose any conditions it considers necessary for the better achievement of the objects and purposes of the FPAA. This is far-reaching and there is concern around the broad discretionary powers that the FPB has claimed when issuing registration certificates, and the possible detrimental 

Application for the classification of games

The Regulations provide that an application for the classification of games must be made on the prescribed form or through an electronic system accessible on the FPB's website and accompanied by the proof of payment of the prescribed fee and copies of every game intended to be distributed or exhibited.  In addition to the above, every game submitted for classification must be accompanied by:

• a written report which accurately and fully describes the game and its classifiable elements as prescribed in the FPB's classification guidelines (FPB Classification Guidelines); and
• a recording of the game which illustrates how classifiable elements as prescribed in the FPB Classification Guidelines are presented.

In the addition the written report must indicate that the game does not or will not:

• contain child pornography, propaganda for war or constitute an incitement to eminent violence;
• advocate hatred based on an identifiable group characteristic that constitutes an incitement to cause harm;
• depict explicit sexual conduct which violates or shows disrespect for the right to human dignity of any person;
• depict bestiality, incest, rape, conduct or an act which is degrading of human beings;
• depict conduct which constitutes incitement of or encourages harmful behavior;
• depict the explicit infliction of sexual or domestic violence;
• depict the explicit presentation of extreme violence; or 
• contain explicit conduct.

There is a further requirement that the game submitted in the application must include mechanisms to remove the bars or impediments preventing players graduating to more advanced levels or advancing further, and where it is not possible to comply with this requirement then the applicant must provide a reasonable explanation for such a non-compliance in writing. 

If the FPB is of the opinion that the demonstration of the game is necessary, then the applicant must, on a date and time and at a venue appointed by the FPB, demonstrate the game to the FPB.

Where a game has been classified, the person who applied for the classification of that game must provide a classified copy of the game to the FPB free of charge in the format in which it will be distributed or exhibited.

Regulation 27 of the FPPA Regulations details the rules that will be applicable to an exemption to distribute games classified as "X18" online. The requirements detailed in regulation 27 are onerous. In particular, the following requirements will have to be complied with in respect of any application to exempt a game from being classified as "X18" online, namely:

• the distributor must indicate how it will ensure that children under the age of 18 would not be able to access a game classified as "X18" online or any promotion of such game;
• the classification and age restriction must be clearly displayed on the user's screen throughout the screening;
• the user must confirm that he or she is 18 years or older prior to commencing playing the game or viewing the promotion of the game;
• the distributor must not distribute any promotion of the 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. This requirement makes no sense as payment is not generally required in respect of promotional materials; and
• the distributor will have to keep a register solely for its private records for a period of one year from the date on which distribution took place of all instances where access was granted to a user whose name, address and verified age must be noted in the register kept for that purpose.

Self-classification 

Under the FPAA and the FPAA Regulations, the requirements for self-classification will be very difficult when providing games on a global basis as gaming companies will have to ensure that all games made available in South Africa are classified in line with the FPB Classification Guidelines. In the FPAA, it is stated that the FPB Classification Guidelines will be determined by the FPB in consultation with the Minister and that an applicant would also need to adhere to any possible new decisions made by the FPB from time to time. This approach is out of step with international approaches to the classification of content on global platforms in terms of which the platform owner is given full autonomy over its self-classification decisions.

The FPAA Regulations provide further details on how one would need to apply to the FPB to obtain a permit for self-classification. There are a number of administrative requirements that would need to be fulfilled and it is also required that on a monthly basis the FPB be provided with a product list of all games that are, "for sale or hire through the online medium."  This requirement goes well beyond what is provided for in the FPPA and will be applicable to all games that are sold on various platforms. 

In the case of "XX" or "X18" games, the classifications for these games must first be published in the Government Gazette, which may present further delays in making such content available.  In addition, until a permit has been approved by the FPB for self-classification, gaming companies will be required to submit all games to the FPB for pre-distribution classification. 

Accredited foreign or international classification systems

A new development under the FPAA and the Regulations is that it allows for accredited foreign or international classification systems to be approved by the FPB's Council.  The Regulations repeat the provisions in the FPAA, which are applicable to the use of accredited foreign or international classification systems by requiring that the FPB be granted access to the applicant's online services for compliance, monitoring and auditing purposes. It is also a requirement that the applicant demonstrates to the FPB how the foreign or international ratings are aligned to the applicable ratings in terms of the FPAA, the Regulations and the FPB Classification Guidelines. 

Although, the introduction of a foreign or international classification system under the FPAA, should be welcomed, there is concern that it will be impractical and difficult to use the proposed system, as content providers will still have to comply with the FPB's classification requirements.

Further administrative issues

In addition to the various administrative steps introduced in the Regulations, the concept of renewing each registration license and classification permit/accreditation on an annual basis is also introduced, which will inevitably result in increased administrative fees. The fees are not set out in the Regulations and interested parties are therefore unable to determine the financial implications.

The Regulations are silent on existing agreements that the FPB has in place with various online content distributors, and it is unclear from the Regulations how these existing agreements will change.

In summary, the Regulations are out of sync with the commercial realities of online content distribution and gaming platforms and impose extensive administrative and cumbersome obligations on online distributors. Interested parties have until 3 August 2020 to submit their comments on the draft regulations.