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Regulation of online pornography in SA has parts falling through the cracks

10.11.2020
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There is currently an interesting vacuum in South African law when it comes to regulating the online distribution of live-streaming pornography in South Africa. Firstly, most of you may be shocked to hear that there is an outright prohibition on the commercial distribution of any “X18” content online in South Africa (did someone tell PornHub, where South African’s use of the platform is actually legendary?). But more intriguing, is the fact that the definition for online distribution of such X18 content does not include live-streaming such content, resulting in an odd legal scenario: It is currently illegal to distribute X18 films or recordings online, but there is no regulation over the online live-streaming of X18 content in South Africa.

This lacuna in the law was actually never meant to happen, and there was a plan in place to regulate such live-streaming X18 content; it just got stalled so badly and for so long, that we are now left with a legal gap which many busy producers and service providers are keen to fill as quickly as possible.

The regulation of commercially distributing X18 content (i.e. pornography) was always the mandate of the Films and Publications Board of South Africa (the FPB), as per the Films and Publications Act, 1996 (the Act) and its various regulations. This Act, however, does not currently recognise online live-streaming as a form of “distribution” or “film, game or publication” falling within the control of the act. This was immediately recognised to be a problem since the advent and explosion of online content distribution, and particularly online live-streaming. The FPB jumped right on trying to fix this issue back in 2013 already with the drafting of the Films and Publications Amendment Act, 2019 (“Amendment Act”), where they suggested amending the Act to include live-streaming online as a form of regulated “distribution” and hence, it could then control and monitor the live-streaming of X18 content online, like any traditional X18 content it has always regulated (see pending S.24(3)).

The issue arises with the fact that the Amendment Act’s impressive, proposed clauses for the regulation of online live-streaming of X18 content have not yet been made binding law. So, in essence, the FPB has already drafted the relevant legal fixes, but the clauses have yet to be made binding or official, resulting in the legal lacuna from the original Act still applying.

Parallel to this investigation, is the fact that the regulator of broadcasting in South Africa (ICASA) is seemingly avoiding the regulation of online-streaming as regulated “broadcasting” even though the definition of “broadcasting” can certainly include online live-streaming of content. We think ICASA have avoided regulating online streamers as “broadcasters”, and specifically live-streamers of X18 content, due to the fact the FPB and their Amendment Act will specifically deal with this matter once the Amendment Act is in force and binding. This is quite common practice in South Africa if there is an overlap of regulatory duties between competing authorities, where (generally speaking), the regulator with the more specific law and mandate on a topic will trump the mandate of the other regulator with the less-specific mandate. Applied in this context, whilst ICASA may indeed have the authority to regulate online live-streaming in South Africa right now, it is deferring to the FPB and the pending Amendment Act to deal with this topic with more specificity and expertise.

The result of the Amendment Act’s delay in commencement, and the ICASA’s hesitance to regulate such actions in the interim, means that the regulation of online live-streaming of X18 content in South Africa is seemingly falling in between the cracks.

In this vacuum, quite a few live-streaming X18 producers in SA have suddenly emerged and want to use this current opportunity to setup and commercialise the gap. Whilst doing so right now would not be immediately illegal, there is certainly ambit for the ICASA or the FPB to become involved and regulate such actions, but they will need to use some interesting powers and interpretations of the current legislation in order to do so, which could arguably be challenged. It is also noteworthy to mention that notwithstanding the FPB’s current inability to regulate the online live-streaming of X18 content, it still has the mandate and powers to investigate and severely prosecute any cases of reported or actual child abuse in / exposure to such X18 content, which no one would deny as being a vital and necessary mandate which must always be applicable.

Another aspect to acknowledge is that even once the Amendment Act comes into force, the FPB relies a lot on self-regulation and self-classification of content for online streamers (like any commercial distributor). This may prove somewhat ineffective in the massive world of online-streaming, where billions of hours of content can be uploaded each day, and from locations and providers based any where in the world, to be accessed anywhere in the world. It is absolutely understandable that the FPB would use self-regulation as a cornerstone of enforcing its laws, due to its inability to perform all those functions itself, but it just seems like whatever the FPB tries to do with governing the internet will always come up short in reality (which is never really going to be their fault in the context of current South Africa and the realities of exponential internet proliferation and use… especially for pornography).

So the next time you are either distributing or consuming your preferred choice of X18 content in South Africa, give a thought to the laws applicable, and ensure that you have at least one hand on what governs your choices!

Thomas Reisenberger – 10 November 2020

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