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Films and Publications

It’s a sobering – and daunting – thought for parents these days. When growing up, as youngsters, we were exposed to sensory and intellectual input that was decided for us by people who were more experienced in the ways of the world than ourselves. It was our parents, teachers and religious institutions who fed us literature, art, music and – largely speaking – notions of the world around us. It was they who moulded our moral compass, because of what they decided we could read and watch, and what they taught us. And what they taught us is what they filtered, using adult awareness and bringing wiser judgment to bear as to what was suitable for our unprepared and fragile blotting-paper minds.

Then came the internet, and then came mobile phones. And every mobile service provider trying its best to make sure that every human being, of every age, has a mobile phone, which will give them access to whatever is available on the internet. And a lot of what is available to read, listen to, watch and absorb is, simply put, not what youngsters growing up should be exposed to.

This is why we have the Films and Publications Act 1996.

A. Registration with the board

  1. It is unlawful:
    • to distribute a film or computer/video game if you are not registered with the Films and Publication Board;1
    • to exhibit a film or game in public without being registered with the Board.2

B. Classification

  1. It is a criminal offence to broadcast, distribute, exhibit, offer for sale or hire any film, game or a publication which:
    • has not been classified;3 4
    • has been refused classification;5 or
    • has been classified as ‘XX’.6

  2. It is an offence to broadcast, distribute, exhibit, or advertise for sale or hire any film, game or a publication which has been classified ‘X18’, if you are not licensed to conduct the business of adult premises and are not registered with the Board.7

  3. The same applies to any person who distributes, or exhibits, to a person under 18 years, any film, game or publication classified as ‘X18’, or which contains depictions, descriptions or scenes of explicit sexual conduct.8

  4. Any film, game or publication which has been classified by the Board must show clearly and conspicuously the classification reference number, the age restriction, consumer advice and any condition imposed on its distribution. Failure to do so shall result in the commission of a criminal offence.9

  5. Any person who advertises a film or game without indicating, clearly and conspicuously, the age restriction, consumer advice and any condition imposed on its being advertised, shall be guilty of an offence.10

  6. It is an offence to screen, or distribute, a trailer advertising a film (or a game) which has a more restrictive classification than the featured film or game.11

C. Child pornography

Any film, game or publication which contains depictions, descriptions or scenes of child pornography; or which advocates, advertises, encourages or promotes child pornography, or the sexual exploitation of children is forbidden.

  1. The following are all criminal offences in relation to this kind of material:
    • possession;12
    • to create, produce or in any way contribute to, or assist in its creation or production;13
    • to import, or in any way take steps to procure, obtain or access it;14
    • to make it available, or to export, broadcast or in any way distribute such material.15

  2. Any person who has knowledge of the commission of any such offence, or has reason to suspect that such an offence has been (or is being committed) shall be guilty of an offence if he does not report such knowledge or suspicion as soon as possible to the SAPS, and furnish all particulars.16

  3. Any person who processes or facilitates (or attempts to) a financial transaction, knowing that it relates to child pornography is guilty of an offence.17

D. Internet access and children

  1. Any person who provides chat-rooms or a contact service, via cellular telephones or the internet, shall do the following, and commits an offence if he fails to do so:
    • take such steps as are necessary to ensure that such services are not being used by any person for the purpose of the commission of any offence against children;18
    • prominently display reasonable safety messages in a language that will be clearly understood by children, on all advertisements for a child-oriented service;19
    • provide a mechanism to enable children to report suspicious behaviour by any person in a chat-room;20
    • report to the SAPS any behaviour indicative of any offence against any child; and21
    • provide information concerning software or other tools to filter or block access to such services.22

E. Internet service providers

  1. Every internet service provider (ISP) must register with the Film and Publication Board and commits an offence by failing to do so.23

  2. Every ISP must take all reasonable steps to prevent the use of their services for the hosting or distribution of child pornography, and likewise commits an offence if it fails to so.24

  3. If an ISP has knowledge that its services are being used for the hosting or distribution of child pornography, it is an offence if it fails to:
    • take all reasonable steps to prevent access to the child pornography by any person;25
    • report the presence thereof to the SAPS;26
    • report the particulars of the person maintaining, or hosting, or distributing or in any manner contributing to the particular Internet address;27
    • take all reasonable steps to preserve such evidence for purposes of investigation and prosecution.28
  4. An ISP shall, upon request by the SAPS, furnish the particulars of users who gained or attempted to gain access to an internet address that contains child pornography. It is a criminal offence not to comply with such a request.29

  1. Section 24A(1). ↩

  2. Section 24A(1). ↩

  3. This does not apply to broadcasters subject to regulation by ICASA, and to newspapers published by a member of a recognised association which is regulated by a Code of Conduct. ↩

  4. Section 24A(2)(a). ↩

  5. Section 24A(2)(b). ↩

  6. Section 24A(2)(c). ↩

  7. Section 24A(3). ↩

  8. Section 24A(4)(a) and (b). ↩

  9. Section 24A(5). ↩

  10. Section 24A(6). ↩

  11. Section 24A(7). ↩

  12. Section 24B(1)(a). ↩

  13. Section 24B(1)(b). ↩

  14. Section 24B(1)(c). ↩

  15. Section 24B(1)(d). ↩

  16. Section 24B(2)(a) and (b). ↩

  17. Section 24B(3). ↩

  18. Section 24C(3) read with section 24C(2)(a). ↩

  19. ection 24C(3) read with section 24C(2)(b). ↩

  20. Section 24C(3) read with section 24C(2)(c). ↩

  21. Section 24C(3) read with section 24C(2)(d). ↩

  22. Section 24C(3) read with section 24C(2)(e). ↩

  23. Section 27A(4)(a) read with section 27A(1)(a). ↩

  24. Section 27A(4)(a) read with section 27A(1)(b). ↩

  25. Section 27A(4)(b) read with section 27A(2)(a). ↩

  26. Section 27A(4)(b) read with section 27A(2)(b). ↩

  27. Section 27A(4)(b) read with section 27A(2)(b). ↩

  28. Section 27A(4)(b) read with section 27A(2)(c). ↩

  29. Section 27A(3) read with section 27A(4)(b). ↩

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