The Statute Law (Miscellaneous Amendments) Bill 2020 (the Bill) seeks to amend the Films and Stage Plays Act Cap. 222 of the Laws of Kenya (the Act). The initiative behind the amendment is to make the Act more consistent with the Constitution and to enable it to address the evolving demands of the creative industry.
The Kenya Film Classification Board(the Board) and the Creative Economy Council agreed to work together in revising and updating the Act in order to spur industry growth and to enhance the protection of children from harmful film and broadcast content.
The classification of films, commercials, trailers and advertisements is intended to protect children from mature or adult content that may be harmful to their development. This is an admirable step towards safeguarding the best interests of the child.
The changes proposed by the Bill appear to be catered towards expanding the scope of the Board's mandate in relation to the regulation of advertising and online content.
Currently, commercial advertising in Kenya is regulated by the Advertising Standards Body of Kenya created by the Association of Practitioners in Advertising. The following amendments intend to subject all persons seeking to broadcast an advertisement in Kenya, either online or on television within the Board's jurisdiction and the legal requirements under the Act.
The Preamble to the Act
Presently, the preamble to the Act is captured as "An Act.for controlling the making and exhibition of cinematograph films, for the licensing of stage plays, theatres and cinemas." The amendments propose to expand and clarify the wording used to describe the objects of the Act by changing the preamble to read "An Act.for regulation of the creation, broadcasting, exhibition and distribution of films, the classification of films and commercials, for the licensing of stage plays, theatres and cinemas."
In the case of Alcoholic Beverages Association of Kenya v Kenya Film and Classification Board & 2 others  eKLR, the core dispute was whether or not the legal mandate of the Board extends to the regulation or control in any manner of television advertisements promoting the sale of alcohol, as broadcast by members of the Alcoholic Beverages Association of Kenya. The Court determined that the advertisements in question, being audiovisual in nature, fell within the scope prescribed in the preamble to the Act and therefore within the statutory mandate of the Board.
The proposed amendment of the preamble will serve to solidify the authority of the Board to classify commercials that are intended to be broadcast in Kenya.
The Bill proposes to amend the definition of the term "Film" and to introduce the new definitions of the terms "Broadcast" and "Broadcasting", "Advertisement", "Commercial" and "Trailer".
The intention behind the revision of the term "Film" appears to be geared towards updating it to capture any new films that are produced using technology that was not yet developed at the time of the enactment of the Act. Films targeted at the Kenyan market distributed over the internet will now fall within the Board's purview.
The proposed amendments seek to ensure that all advertisers, and not just advertisers of films, plays or music, comply with the provisions of the Act in relation to any advertisement including online advertisements.
The Bill proposes to amend section 17 of the Act, currently on films unsuitable for children, to cater for classification by the Board. The proposed provision introduces sanctions for non-compliance such as fines not exceeding one hundred thousand shillings (approximately USD1000) and/ or imprisonment for a term not exceeding five years. It further provides that where offences are committed by a corporation, every person charged with, or concerned or acting in, the control or management of the affairs or activities of the corporation shall be liable to be found guilty of that offence and punished accordingly.
Although the move to amend the Act is primarily aimed at strengthening the protection of children from exposure to mature or adult content, the current drafting of the Bill should be reevaluated to ensure that it is clearer and more practical in terms of enforcement. Furthermore, care should be taken to ensure that the classification procedures do not prove onerous or unnecessarily punitive to advertisers and platform providers.
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