South Africa: The Draft Online Regulation Policy – Does It Impact On User-Generated Content?

Last Updated: 23 July 2015
Article by Anneke Meiring

Most Read Contributor in South Africa, September 2018

The Draft Online Regulation Policy (the "Policy") gazetted on 4 March 2015, was developed following section 4A of the Film and Publications Act of 1996, and sets out to create a framework for online content distribution in South Africa under the Film and Publications Board. The first consultation process was extended to 1 July 2015, in response to the public outcry against the uncertainty created by the Regulations, in particular in relation to the classification of user-generated content.

Further consultation may well be required, including with those stakeholders who were not consulted with the first time around. The policy reviewers should, as a start, explain those instances where the explanatory memorandum differ from the Policy.

The objectives of the Policy are sensible enough, giving effect to sections 18(1) and 18 (2) of the Film and Publications Act by ensuring the classification and compliance monitoring of digitally distributed content. This will be achieved by enabling the effective regulation and speedy classification of digital content by the Board and creating an opportunity for co-regulation between the Board and industry (for the distribution of digital content). Central is the adoption of a platform neutral classification system, which deals with "broader convergent media trends", as opposed to piecemeal regulatory responses to changes in technology.

Eight guiding principles underlie the framework, including that South Africans should be able to read, hear, see and participate in the media of their choice, that communications and media services should broadly reflect community standards, that children be protected from material likely to harm or disturb them, and that the framework not impede competition or innovation, or disadvantage South African media content and service providers internationally. The classification regulation should furthermore be kept to a minimum to meet a clear public purpose.

The Policy deals with child exploitative media and self-generated content together, and not necessarily in any logical order in section 6, thus creating confusion. Section 6  focusses on the shift from media users as audience to participants, and also states that an increasing number of South Africans, the majority of which are apparently children, are using "contact services" such as Facebook and Twitter. This would leave children exposed to unclassified content (and apparently also without parents).

In order to minimise such exposure, user-created content will forthwith constitute a publication as defined in section 1 of the Act (i.e. a drawing, picture, illustration or painting,  recording or any other message or communication, including a visual presentation), which is placed on any distribution network (including the internet).

Section 6 confirms that the publication of child pornography is a criminal offence, (to the extent that this wasn't already the case), and imposes an obligation on an online distributor with a distribution platform (which could arguably be a PC or mobile phone, or that of an ISP). The Policy then proceeds to deal with the dispatch of a copy of the classification decision to the online distributor, against payment of a fee (equivalent to what the Board charges per title in respect of boxed films or games submitted to it for classification). Failure to pay the fee may result in the online distributor's registration certificate being withdrawn, penalties and legal action. The Policy goes on to empower the Board to order the online distributor to take down illegal or prohibited user-created content and to refer the matter to the South African Police Services for criminal investigation and prosecution.

It is not clear whether this section imposes an obligation on an average internet user to register with the Board and apply for classification each time before posting. Fortunately, the memorandum provides guidance under the section "Clear scope of the type of content to be classified". This includes self-generated content uploaded on platforms such as YouTube, Facebook and Twitter, feature films, television programmes and certain computer games, which are distributed online by streaming through the internet. During an apparent lucidum intervallum, it is acknowledged that it is impractical to expect all media content, particularly self-generated content to be classified, and that it is the responsibility of the platform provider in consultation with the Board to determine the scope of classification, with the conclusion that the obligation to classify content will not generally apply to persons uploading online content on a non-commercial basis. This expressly excludes child exploitative and pornographic posting.

The Policy itself under the heading, "Online distribution licensing fee and classification fee per title", however has a blanket statement that no online content distributor shall be authorised by the Board to distribute online content in South Africa, unless it has registered with the Board as an online distributor and has paid the prescribed online distribution licensing fee.

Unless the intention is for the Policy to only apply to content providers and distributors who do this on a commercial basis (the real "platform providers" like Facebook, Twitter, YouTube etc.), us mere mortals who upload a holiday picture, video, photo, message or any other communication may have to register and pay and then wait 30 days for clearance. But can this really be the case in an open democratic society? Would this allow us to participate in the media of our choice, and is this indeed the  most effective way to protect children from material likely to harm or disturb them? Or is this the way to get communications and media services to broadly reflect community standards?

The Policy is silent on freedom of expression.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions