FAQ

FREQUENTLY-ASKED QUESTIONS about the Films and Publications Act and the classification, distribution and possession of films, computer games and publications

1. Why do we need a classification board?
2. What gives the Board the right to tell me what films I, or my children, can watch?
3. What is the difference between censorship and classification?
4. If the Constitution guarantees freedom of expression, why are films classified?
5. Do other countries also classify films?
6. Are there films that don’t have to be classified?
7. Who decides on how a film should be classified?
8. Who appoints examiners and what are their qualifications?
9. How can I become an examiner?
10. Who decides on the criteria that is used to classify a film?
11. What evidence is there that exposure to certain materials may have negative impact on the development of children?
12. What must I do if I want to open a video shop to sell or rent out films?
13. How do I register with the Board as a distributor of general films?
14. What must I do if I want to distribute “adult” films?
15. If I have a licence to conduct the business of adult premises, can I also sell or rent out general films?
16. If I have a video shop for general movies, can I also sell or rent out “adult” films in a separate section of the same shop?
17. What are the conditions for running the business of an “adult” shop?
18. What are the conditions for selling or renting out general-release films?
19. If I have a licence to run an “adult” shop, can I distribute “adult” films by mail-order or via the Internet?
20. Can I sell or rent a film that has not been classified by the Board but which I purchased, legally, and which has been classified by another body?
21. How do I get a film classified?
22. Why am I not allowed to sell or rent out a film that has not been classified?
23. Once I have a Certificate of Classification, can I freely sell or rent out that film?
24. What is the position regarding distribution of movies to clients or customers in South Africa from a location outside South Africa?
25. Are foreign classifications valid in South Africa?
26. Is it legal to possess, for personal and private use, unclassified films?
27. Are films that I can rent from a video store also classified?
28. Are films in video stores classified differently from those I can watch in a cinema?
29. How will I know if a film has been classified?
30. Are books and magazines also classified?
31. What is consumer advice?
32. What does “PG” mean?
33. What is the difference between “advisory” and “legally restricted”?
34. Are trailers also classified?
35. How can I find out more about the content of a classified film?
36. What is the difference between a film classified “18” and one classified “X18”?
37. What can I do if I have a complaint about a film?
38. Who can apply for a review of a classification decision?
39. What is the effect of an “XX” classification?
40. Do I have to register with the Board if I want to sell or rent out computer games?
41. Are computer games classified?
42. How do I get an interactive computer game classified?
43. Can I distribute magazines, books or other publications of an “adult” nature?
44. What are the conditions for the distribution of publications intended for adults but are exempted from the “X18” or “XX” classification?
45. Do I have to register with the Board if I am distributing publications only?
46. Must I have a licence to distribute “adult” publications?
47. What is the position regarding the distribution of CDs and music DVDs?
48. What can I do if I am dissatisfied with a decision of the Board with regard to an application or submission that I had made?
49. What if parents insist that they are the best judges of what is appropriate viewing for their children?
50. Why are films broadcast on TV not classified by the Board?
51. Are films and video clips available on the Internet and even mobile phones required to be classified?
52. Do classification decisions have legal effect?
53. Why does the FPB allow “adult” movies to be broadcast on TV?
54. Who checks on whether or not distributors and exhibitors are complying with the law?
55. Can I purchase or rent a film that has not been classified?
56. Can I buy a film, game or publication from someone selling these in the streets and street-corners?
57. What is child pornography?
58. What should I do if I come across child pornography?
59. Does the Act apply to Internet Service Providers?
60. Is it legal to distribute images and video clips via mobile phones?
61. What can I do if I want to show a film for charity, as, for instance, a fund-raising event for a worthy cause?

Relating to films in general

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1 Why do we need a classification board?

In the words of Parliament, it is necessary to provide for a “…..system of classification of films and publications to provide a clear balance between the constitutional rights of adults to choose what they want to watch, view or read, and the duty to protect people, particularly children and women, from exposure to harm-resulting forms of violence, sexually explicit films and publications”.

The Film and Publication Board helps you make informed choices about whether or not a particular film is appropriate for your children or even for yourself. Films are examined against a set of guidelines which identify such classifiable elements as strong language, violence, sex, nudity, drug abuse, criminal techniques and racial, gender or religious prejudice. The Board then alerts the public, through age-restriction and consumer advice, about the frequency and intensity of these classifiable elements in a particular film. This is the practical application of the Board’s motto “We inform, you choose” .

Classification boards providing similar services exist in most countries. See paragraph 5 below.

2 What gives the Board the right to tell me what films I, or my children, can watch?

The Board was established by an Act of Parliament – the Films and Publications Act, 1996 – to regulate the distribution and possession of films, computer games and publications by means of classification. The Board, therefore, is a statutory authority responsible for providing the public with information about the content of films, computer games and publications and its classification decisions have the force and effect of law. The Act recognises the right of adults to freedom of expression, except with respect to child pornography, but requires the Board to intervene where there is the likelihood or risk of harm to children.

3 What is the difference between censorship and classification?

 Censorship, as generally practised, and as experienced by South Africans prior to 1994, is a system which denies and prohibits access to certain materials determined by a Government to be inimical to its interests as a government. Censorship is, therefore, motivated by political considerations. Classification, on the other hand, is a system which rates material into appropriate categories on the basis that adults should be free to choose for themselves what to see, hear, read or play, that children should be protected from potentially disturbing, harmful and inappropriate materials, that everyone has a right not to be exposed to unsolicited materials that they may find offensive and that the public has a right to such information as will enable them to make appropriate viewing choices for children in their care. Classification, therefore, is motivated by public interest and constitutionally-protected rights and freedoms and not politics. With the exception of child pornography, there is no censorship in South Africa. Child pornography remains the only category of materials that is completely prohibited in films, videos, publications, the Internet and in any other medium of expression or representation, as well as private possession.

4 If the Constitution guarantees freedom of expression, why are films classified?

Classification does not deny freedom of expression, except for materials which are outside constitutional protection, such as child pornography, propaganda for war, incitement to violence and the advocacy of hatred based on race, ethnicity, gender or religion. All other materials are rated to protect children in the relevant age groups from exposure to materials that pose a risk of harm. “Harm” in this context is not just physical harm but includes emotional and psychological harm which may have a negative impact on the normal emotional and cognitive development of children. In balancing competing interests, such as the right to freedom of expression and the protection of children, the Constitution provides that the best interests of a child are of paramount importance in every matter concerning the child.

5 Do other countries also classify films?

Most, if not all, countries have either statutory authorities or industry-sponsored bodies to classify and rate films, computer games, publications and, in some countries, even TV and radio broadcasting, for reasons similar to that of the Board.

For instance, films in the UK are classified by the British Board of Film Classification, in Australia by the Office of Film and Literature Classification, in the Canadian Province of Ontario by the Ontario Film Review Board, in India by the Central Board of Film Certification, in Brazil by the Departamento de Justica, Classificacao, Titulos e Qualificacao, in Chile by the Consejo de Calificacion Cinematografica, in Denmark by the Media Council for Children and Young People, in Finland by the Finnish Board of Film Classification, in France by the Ministry of Culture, in Hong Kong by the Film Censorship Authority, in Ireland by the Film Censor’s Office, in Singapore by the Media Development Authority, in the USA by the Classification and Rating Authority of the Motion Picture Association of America, in Nigeria by the National Film and Video Censors Board, in Mauritius by the Board of Film Censors, in Ghana by the National Film Board and in Kenya by the Film Censorship Board, to name but a few.

6 Are there films that don’t have to be classified?

All films intended for distribution or exhibition in South Africa must be approved, by means of classification, by the Board but not all films have to be classified by the same means. Films which do not contain any classifiable elements or films of an educational nature, for instance, may be exempted, upon written application, from the classification procedure and, if so exempted, would be regarded as having been approved for distribution or exhibition.. “Classification” in this context means approved for distribution or exhibition, with or without conditions. The usual classification procedure is for a film to be referred for examination (viewing) by a classification committee of the Board. However, films without any classifiable elements may be exempted from the usual classification procedure by the Executive Committee of the Board.

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7 Who decides on how a film should be classified?

Films are examined for classification by a classification committee, consisting, usually, of a chief examiner and two examiners, appointed from a panel of examiners. Classification committees examine films against the Constitution, the Act and publicly-approved guidelines. The guidelines not only identify classifiable elements, such as strong language, violence, sex, nudity and racial, gender or religious prejudice, but also establish, as far as it is possible to assess, generally-accepted standards or levels of tolerance of the South African community of the identified classifiable elements. The more frequent and intense the classifiable element, such as violence, for instance, the higher the age-rating imposed on that film. In other words, restrictions on who may or may not be allowed to watch a film would depend on the frequency and intensity of classifiable elements in a particular film.

8 Who appoints examiners and what are their qualifications?

Chief examiners and examiners are appointed by the Minister responsible for the Board. Appointments are, generally, made from a list of candidates nominated by the public. Examiners must have knowledge or experience in one or more of such matters as community development, education, psychology, religion, law, drama, literature, communication science, photography, cinematography, gender issues and childrens’ rights. The panel of examiners must also be broadly representative of the South African community in terms of ethnicity, age, religion and gender.

9 How can I become an examiner?

A request for public nominations of suitable candidates for appointment as examiners is usually made in national newspapers once every 3 years. (Examiners are appointed to three-year terms, though they are eligible for re-appointment.) You may contact the Board for information on when a request for nominations for the next panel of examiners will be made.

10 Who decides on the criteria that is used to classify a film?

The Board has established a set of guidelines which examiners use to determine what is inappropriate, potentially disturbing or harmful to children in particular age groups. These guidelines are based on national and international research on child development, the effects of the media on children and on standards or levels of tolerance of certain materials generally accepted by the South African community, as indicated in the response from the public to the guidelines published each year for comments and representations. Guidelines are also informed, where appropriate, by the criteria and guidelines used by similar bodies in other parts of the world. Guidelines used by the Board are sensitive not only to fundamental rights and freedoms of all South Africans and South African culture but also to the aspirations of Government towards the establishment of a human-rights based democracy in South Africa. Since the guidelines are published each year and refreshed on the basis of public comments and representations, it would not be incorrect to say that the criteria used by the Board is determined to a large extent by the South African public..

11 What evidence is there that exposure to certain materials may have negative impact on the development of children?

There are, literally, thousands of studies that confirm a high correlation between exposure to certain kinds of materials and changes in children’s behaviour. Research has tended to focus on the impact of media violence, and general conclusions are:

• increasing aggressiveness and anti-social behaviour, especially if a child is predisposed to aggressiveness
• increasing their fear of becoming victims
• making them less sensitive to violence and victims of violence, and
• increasing their appetite for more violence in entertainment and in real life.

Media violence often fails to show the consequences of violence and the message is that there are few, if any, repercussions for committing violent acts. If a violent act is rewarded or left unpunished, it is more likely to foster attitudes that support aggressive behaviour.

Research studies also suggest that children, particularly younger children, are not able to distinguish between reality and media distortions of reality and may accept the world as seen in the media as the real world. Relating to the distribution of films

12 What must I do if I want to open a video shop to sell or rent out films?

The sale or renting out of films within South Africa is regulated by the Films and Publications Act, 1996 (the Act). In terms of section 18(1A) of the Act, any person who wants to sell or rent out films must register with the Film and Publication Board (the Board) as a distributor of films. Any person who sells or rents out films without being registered with the Board would be guilty of an offence under section 26(1)(d) of the Act.

13 How do I register with the Board as a distributor of general films?

A “general film” is a film that does not contain any of the scenes described in either Schedule 6 or Schedule 7, or, if it does contain such scenes, is saved by Schedule 9, and does not have the “X” as part of its classification, even if such films have an age restriction of 18+. Films which have “X” as part of the classification (“X18” or “XX”) are regarded as “adult” movies. Note that any film classified “XX” may not be distributed but may be possessed for strictly personal and private consumption.

• Get an Application For Registration Form (Form FPB/R/18/1A), which you may download from the Board’s website (www.fpb.gov.za) or obtain from the Board (phone 011 483 0971 or fax 011 483 1084).
• Complete the form, making sure that you answer every item on the form. The Board will not process forms which have not been completed in every detail.
• Deposit the registration fee into the account of the Board:

                         

Account	FPB, trading as State Expenditure
Bank	ABSA, Adderley Street Branch
Account No.	40 50 45 11 90
Branch Code	632 005
Reference	Name under which you trade

       

• Send the completed registration form and a copy of the bank deposit slip to:

Address	The Film and Publication Board
	Private Bag X2205
	HOUGHTON
	2041
Fax	(011) 483 1084

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14 What must I do if I want to distribute “adult” films?

“Adult” films are films classified “X18” or “18”. With respect to the distribution of films classified “X18”, in addition to the procedures set out in paragraph 13 above, you must also obtain a licence to conduct the business of adult premises from your local licensing authority. The licence must be issued in terms section 2, item 2(h) of the Business Act, 1991. You must then send the completed application form, a copy of the bank deposit slip and a certified copy of the licence to conduct the business of adult premises to the Board. See, also, paragraphs 15, 16, 17 and 19 below. No licence is required for the distribution of films classified “18” but registration with the Board is required.

15 If I have a licence to conduct the business of adult premises, can I also sell or rent out general films?

The holder of a licence to conduct the business of adult premises may sell or rent out any film that has been classified by the Board. However, one of the conditions for the business of adult premises (or “adult” shops) is that you must display, clearly and prominently, at all entrances to the premises, notices stating that no person under the age of 18 years may enter the premises. No person under the age of 18 years may enter or remain within adult premises. This means that only persons over the age of 18 years may enter the premises and that persons under 18 years may not enter even if they wish to buy or rent a general film.

16 If I have a video shop for general movies, can I also sell or rent out “adult” films in a separate section of the same shop?

No – unless the separate “adult” section is, in fact, completely separated from the general section, and has its own entrance. You cannot have an “adult” shop sharing the same entrance as a general video shop.

17 What are the conditions for running the business of an “adult” shop?

• It is an offence, in terms of section 26(1)(b) of the Act, to sell or rent out any film classified X18 without the licence referred to in paragraph 14 above.
• There must be clear and prominent notices stating that no person under the age of 18 years may enter the premises posted at all entrances to the premises.
• The distribution, whether by sale or rent, must take place within that premises.
• No film classified X18 may be handed to a person under the age of 18 years.
• You must not display any film or magazine classified X18 in such a way that it can be seen from outside the premises.

18 What are the conditions for selling or renting out general-release films?

• You must be registered with the Board as a distributor of films.
• Only films classified by the Board may be distributed, whether by sale or rent.
• Every film offered for sale or rent must display, either on the cover of the cassette or the box or holder of the film, or through the packaging of the film, the classification reference number, the age restriction, the consumer advice and any other condition imposed on that film by the Board. This information must be displayed within the logo of the Board. Failure to display that information, or displaying incorrect or false information, is an offence in terms of sections 26(1)(c) and 3 of the Act.

19 If I have a licence to run an “adult” shop, can I distribute “adult” films by mail-order or via the Internet?

No. One of the conditions for running an “adult” shop is that distribution must take place from within premises forming part of a building. (Section 24(1) of the Act) This means that both the distributor and the customer or client must be within the licensed premises when the sale or rent transaction takes place. Parliament, concerned about access to strictly “adults only” materials by children, has determined that the only way to ensure that your customer or client is, in fact, an adult is through face-to-face distribution.

20 Can I sell or rent a film that has not been classified by the Board but which I purchased, legally, and which has been classified by another body?

• In terms of section 26(1(a) of the Act, it is an offence to sell or rent out any film that has not been classified by the Board. “The Board”, for the purpose of the Act, is the Film and Publication Board.
• If you have purchased a film from a distributor within South Africa, the movie should have been classified before it was sold to you. If it was not, then the distributor who supplied the unclassified film should be reported to the Board.
• However, since no person may sell or rent out a film that has not been classified, you will have to either get the person who supplied that film to have that movie classified or you yourself will have to submit that film for classification before you can sell or rent it out.

21 How do I get a film classified?

(i) Complete the Application for Classification of a Film Form [Form FPB/FC/18/1A(b)] and submit that form together with a VHS or DVD version of the film and the applicable classification fee to the Board. The form must be completed in every detail. The applicable fee will be contained in THE Schedule of Tariffs posted on the Board’s website: www.fpb.gov.za, or may be obtained by contacting the Board at (011) 483 0971. (ii) Once you have received a Certificate of Classification from the Board, enter the classification reference number, the age restriction, any consumer advice and any other condition imposed on the sale or rental of that film within the logo of the Board and display that on the cover or packaging of the film.

22 Why am I not allowed to sell or rent out a film that has not been classified?

The short answer is that classification of films for distribution within South Africa is a legal requirement! Films are classified in the public interest, primarily to protect children from being exposed to materials which are potentially disturbing, harmful or age-inappropriate. Classification also provides information to the general public about the content of films, games or publications so that they may make informed choices about films, games or publications to which they may not want to be exposed or would want children in their care to see, play or read. This information is provided by means of age restrictions and consumer information.

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23 Once I have a Certificate of Classification, can I freely sell or rent out that film?

The Certificate of Classification merely confirms that that film has been classified by the Board for sale or rental in South Africa. It does not mean that distributors do not have to comply with other laws, regulations or contractual obligations, such as between copyright holders or distributors. Distributors must still comply with other conditions which may be imposed on the sale or rental of films by other laws, regulations or contractual obligations. The Board’s legal obligation is only to classify films and issues of copyright or distribution rights is not a matter for the Board.

24 What is the position regarding distribution of movies to clients or customers in South Africa from a location outside South Africa?

The Act does not apply outside South Africa, so distributors who are not South African citizens or permanent residents and who are not resident in South Africa, are not subject to the Act. However, the Act will apply to any South African citizen or permanent resident distributing films, computer games or publications into South Africa even from outside South Africa. (See section 30A of the Act.) The Act will not apply to films, computer games or publications intended for distribution outside South Africa, even if the distributor is within South Africa. [See section 18(1)(b).] The position may be summarised as follows:

Films for distribution or exhibition:
Within South Africa	Act applies
Outside South Africa	Act does not apply
Distributors operating from within South Africa:
Clients in South Africa	Act applies
All clients outside South Africa	Act does not apply
Distributors operating from outside South Africa:
South African citizens:
Clients in South Africa	Act applies
All clients outside South Africa	Act does not apply
Non-South African citizens Act does not apply

 

 25 Are foreign classifications valid in South Africa?

Classification systems and content are culture-sensitive. Classification decisions reflect, and are based on, norms, values, virtues and standards or levels of tolerance of each country. Although South Africa may share many of the cultural values common to many countries, it also has values and virtues that are uniquely South African. Classification decisions for South Africa must therefore reflect the norms, values, virtues and standards of tolerance of South Africans. Classification decisions of the Board are, therefore, based on the South African Constitution and on guidelines which have been approved by the South African public through the annual “feedback” exercise.

26 Is it legal to possess, for personal and private use, unclassified films?

The Act regulates the distribution and possession of films. In so far as distribution is concerned, it is illegal to distribute, within South Africa, any film that has not been classified by the Board.

In so far as possession is concerned, there is no prohibition on the possession of any film, game or publication for personal and private use, EXCEPT for movies, games or publications that contain depictions and/or descriptions of child pornography. Child pornography is completely and absolutely prohibited in any form or medium and for any but strictly lawful purposes.

It is important to note, however, that, for the purposes of the Act, the word “distribute” has a meaning that is much wider than its ordinary and commonly-understood meaning. In so far as materials classified XX and X18 are concerned, the mere handing over or exhibition of such materials to a person under the age of 18 years, or the failure to take reasonable steps to prevent access to such materials by a person under the age of 18 years, would constitute distribution. In such cases, the defence of personal and private use would not be available.

 27 Are films that I can rent from a video store also classified?

Yes. It is an offence to offer for sale or rent any film, in any format and through any medium, that has not been classified by the Board. If you come across a film that does not display the classification decision imposed on that film by the Board, you should report the matter to the Board.

28 Are films in video stores classified differently from those I can watch in a cinema?

There is no difference in the guidelines and the process involved in the classification of films exhibited in cinemas and those in video stores. However, it is quite possible that the same title in different formats may be rated differently because of the particular impact of classifiable elements on a viewer in different formats. For instance, a DVD is interactive. A viewer, for example, could play a scene over and over to learn a criminal technique described in a DVD or VHS format. That cannot be done when watching that same film in the cinema. In such a case, the DVD or VHS version might get a more restrictive classification.

29 How will I know if a film has been classified?

The classification reference number, the age restriction, consumer advice and any other condition imposed on the distribution of a film must be clearly displayed on the cover or packaging of the holder or cassette. Failure to display that information is an offence in terms of the Act. In so far as films screened in cinemas are concerned, the relevant classification information must be screened immediately before the start of a film. In addition, all advertisements and posters of films must display the classification information in such a way as to be clearly visible to the public. To avoid having to walk out of a cinema because the film contained scenes which offended you, you should check the classification and consumer information on the posters advertising films, usually found in cinema near the ticket kiosks or counters of most cinemas. If you find a poster advertising a film without displaying the classification, age restriction and consumer information, if any, please report that to the Board.

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30 Are books and magazines also classified?

Books and magazines which contain depictions and descriptions of explicit sexual conduct or explicit extreme violence must be submitted to the Board for classification before they are offered for sale. Books and magazines which contain material intended for “adults only” but not material described in either Schedules 1 or 2, should be distributed, where appropriate, in opaque wrappers, with a clear “Adults Only” or “18+” warning. Other books and magazines are only classified if a member of the public lodges a complaint with the Board that a particular book or magazine be referred to a classification committee for examination and classification.

31 What is consumer advice?

Consumer advice is information about the contents of a film. It is intended to caution the public that the film contains material which some viewers may find offensive or inappropriate, both for themselves and for their children. The information is conveyed by symbols, which may or may not be related to an age restriction. The symbol “L” indicates that the film contains language which some may find offensive, “N” indicates nudity, “S” warns of sexual content, “V” of violent content and “P” that the film contains scenes of racial, gender or religious prejudice.

32 What does “PG” mean?

“PG”, meaning “Parental Guidance” but could just as well mean “Provide Guidance”, is an advisory classification that cautions parents that the film may contain material that might not be suitable for some children. Parents are expected to “provide guidance” to their children by either watching the film before allowing their children to see it to determine whether or not it is appropriate for their children, or see it with their children so that they can be of comfort and reassurance to their children if necessary.

33 What is the difference between “advisory” and “legally restricted”?

The only “advisory” classification is “PG”, which advises parents and guardians that, although the film has not been restricted to persons of and above a particular age group, there may be some material in that film which may be inappropriate or unsuitable for some children and that parents should, therefore, decide whether or not they would allow their children to watch it. A “legally restrictive” classification means that that film has been restricted for viewing only by persons of and above the specified age, and that it would be an offence to allow a person below that specified age to watch or rent such a film.

34 Are trailers also classified?

Yes. Trailers are, for the purposes of the Act, films and everything that applies to a film will apply, equally, to a trailer. It should be noted that it is an offence to screen a trailer during the same screening session as a feature film with a lower age restriction. In other words, if the feature film has an age restriction of, say, “10”, it would be an offence to screen, during that same screening session, any trailer with an age restriction higher than “10”.

35 How can I find out more about the content of a classified film?

You may find relevant information by going to the Board’s website at www.fpb.gov.za, “clicking” on “Classification Decisions”, and searching by title. You may also find relevant information in the websites of other classification boards, as well as the websites of film distributors. Film critics – in newspapers and magazines – also provide useful information about the latest films on circuit. Of course, there is always the Internet and the IMDb is a very useful website for information about films.

36 What is the difference between a film classified “18” and one classified “X18”?

A film classified “X!8” is restricted in two ways: (i) it may be distributed only by the holder of a licence to conduct the business of adult premises – so-called “adult” shops” – and from within the licensed premises, and (ii) it may only be distributed to persons of and above the age of 18 years. A film classified “18”, on the other hand, is restricted only to the extent that it may only be distributed to persons of and above the age of 18 years.

37 What can I do if I have a complaint about a film?

You can write to the Chief Executive Officer of the Board, providing as much detail as possible to enable the Board to take appropriate action. The Board will respond to all letters of complaints received from the South African public.

38 Who can apply for a review of a classification decision?

Any interested person may, after the expiry of two years from the date when a film was last classified, apply to the Board for a more lenient classification of that film.

39 What is the effect of an “XX” classification?

The “X” category of films – “X18” and “XX” – are restricted both in terms of distribution and possession. A movie classified “X18” may only be distributed by the holder of a licence to conduct the business of adult premises and only to persons of and above 18 years of age. A movie classified “XX” may not be distributed, although it is not an offence to possess such a movie for strictly personal and private use. Note that the mere handing or exhibition of a movie classified “XX” to as person under the age of 18 years would be regarded as distribution and would constitute an offence in terms of section 26(1)(aA). The failure to take reasonable steps to prevent access to the “X” category of materials by any person under the age of 18 years would also constitute an offence in terms of section 27(3). Films, games and publications containing child pornography are not classified but referred, in appropriate circumstances, to the police. Relating to interactive computer games

40 Do I have to register with the Board if I want to sell or rent out computer games?

Yes. Interactive computer games are defined, for the purposes of the Act, as films and all the requirements and conditions applicable to the sale or rental of films apply, equally, to computer/video games. However, a person registered as a distributor of films does not have to register, separately, as a distributor of games.

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41 Are computer games classified?

Yes. A computer game is defined as a film for the purposes of the Act and all the requirements for the distribution of a film apply, equally, to the distribution of computer games.

42 How do I get an interactive computer game classified?

The procedure for the submission of a computer game for classification is the same as that for a film except that a different form, available on the Board’s website, is used. Relating to publications

43 Can I distribute magazines, books or other publications of an “adult” nature?

Publications which contain scenes or descriptions listed in Schedules 1 and 2 must be classified by the Board before distribution. Therefore, any publication which contains:

•  visual presentations or descriptions of
	• explicit violent sexual conduct
	• bestiality
	• incest
	• rape
	• explicit sexual conduct which violates or shows disrespect for the right to human dignity of any person or which degrades a person or which constitutes incitement to cause harm, or
	• visual presentations of explicit sexual conduct

 must be submitted to the Board for examination and classification before distribution. [See section 17(4) of the Act] It may be noted that material described in Schedules 1 or 2 contained in publications which are of a bona fide scientific, documentary, literary or artistic nature are exempted from “X18” or “XX” classifications, even if the material, by itself, falls to be classified “X18” or “XX”. But, as a general rule, there are no exemptions for publications containing child pornography. Chid pornography is completely prohibited and its possession and distribution would be treated as matters for the police to investigate.

44 What are the conditions for the distribution of publications intended for adults but are exempted from the “X18” or “XX” classification?

The fact that such publications may be exempted from the “X18” or “XX” classification (through the application of Schedule 5) does not mean that such publications may be freely distributed even to children. The materials may still be of a nature that should be restricted to adults only or to persons of and above a specified age.. The effect of the exemption is that such publications are not restricted for distribution only by the holders of a licence to conduct the business of adult premises (so-called “adult shops”) but may be distributed by any person. However, distributors should exercise cautious discretion to protect children from exposure to inappropriate or potentially disturbing and harmful materials. Where a publication contains materials intended for adults only, especially in visual form, but is exempted from an “X18” or “XX” classification, it should be distributed in an opaque wrapper with an “adults only” or “18+” warning.

45 Do I have to register with the Board if I am distributing publications only?

No. Not if you are distributing only publications. However, any publication, such as a magazine, which may include a film or a game, would be regarded as a film and not a publication and any person distributing magazines which include films or computer games must register with the Board as a distributor of films.

46 Must I have a licence to distribute “adult” publications?

Yes. In terms of sections 25(b) and 28(2) of the Act, it is an offence to distribute any publication which is classified X18 unless you are the holder of a licence to conduct the business of adult premises. See paragraphs 14, 15, 16, 17 and 19 above. However, you do not have to register with the Board if you are distributing only publications, except where a publication contains a DVD or an interactive computer game, in which case you will be distributing films and must, therefore, register with the Board.

General

47 What is the position regarding the distribution of CDs and music DVDs?

A CD (compact disc) is defined as a publication for the purpose of the Act. Publications which do not contain any of the materials listed in Schedules 1 or 2 (explicit sexual conduct, explicit extreme violence, bestiality, rape and incest) are only classified if a member of the public lodges a complaint with the Board that a particular CD be referred to a classification committee. However, a CD which is a soundtrack associated with a film is a “film” for the purpose of the Act and must be submitted to the Board for classification in the same manner as films.
DVDs, as audio-visual products, are films and must be submitted to the Board for classification.

Everything in the Act and Regulations that applies to films will apply, equally, to music DVDs and CDs associated with films.

48 What can I do if I am dissatisfied with a decision of the Board with regard to an application or submission that I had made?

You may lodge an appeal to the Film and Publication Review Board (the Review Board) in terms of section 20(1) of the Act. The appeal must be lodged within 30 days from the date when the decision of the Board was communicated to you.

The appeal must be lodged by completing the Appeal to the Review Board Form (Form FPB/RB/20) and submitted to the Chief Executive Officer of the Board, together with any applicable fee, which, in the case of an appeal against a classification decision, is twice the original classification fee. The details required to complete any appeal may be found in Regulation 14 of the Films and Publications Regulations 2006, which may be found at the Board’s website (www.fpb.gov.za) or www.sabinet.co.za.

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49 What if parents insist that they are the best judges of what is appropriate viewing for their children?

The short answer is that Government’s obligation and duty to protect children extends to restricting children from access to materials which pose a likelihood or risk of harm. “Harm” in this context includes psychological harm in the sense that certain materials may impact negatively on the development of children into socially-responsible persons who respect the fundamental and basic human rights of all peoples.

Parents, generally, do not have prior knowledge of the content of films. The system of classification allows the Board to examine the contents of a film before it is distributed or exhibited and alert the public, and especially parents, to content that might pose a risk of harm to children in the relevant age-group. Since the protection of children is a constitutional obligation imposed on Government – see section 28(1)(d) of the Constitution, for instance – it is an offence to allow a child to watch a film which has been age-restricted to persons older than that child. As a matter of interest, this practice is not unique to South Africa.

Laws are not framed with exceptions in mind. There are many parents who do, in fact, monitor what their children watch or read and avoid exposing their children to materials which are not consistent with the particular social, religious or family values and virtues which they encourage in their children. But not all parents have access to prior information about the content of films. The Board has not usurped either the function or rights of parents with respect to the nurturing of children. Its role should be seen, rather, as complementing responsible parenting. Protecting children is a shared responsibility.

50 Why are films broadcast on TV not classified by the Board?

TV films are subject to regulation by the relevant broadcaster and not by the Board. However, the Board is establishing close working relationships with TV broadcasters to ensure that the standards and guidelines used by broadcasters in the classification of TV films are the same, as far as possible, as that used by the Board. The Board is working towards the development of a standardised classification system for TV programmes and general films.

51 Are films and video clips available on the Internet and even mobile phones required to be classified?

Yes. In terms of the Act, films, video clips and images intended for viewing through any electronic or mechanical device must be classified by the Board before any distribution. This means that it is an offence for any person to distribute, through any medium, including the Internet and mobile phones, any film or video clip that has not been classified by the Board.

52 Do classification decisions have legal effect?

Yes. The Act creates a number of offences for non-compliance either with the requirements of the Act or with decisions of the Board made in terms of the Act.

53 Why does the FPB allow “adult” movies to be broadcast on TV?

The Board has no jurisdiction over TV broadcasters, who are regulated by a different regime. So-called “adult” movies may be classified “XX”, “X18” or “18”, depending on the content of the movie. A movie classified “XX” may not be broadcast or distributed or exhibited by any person anywhere in South Africa. A movie classified “X18” may only be distributed by the holder of a licence to conduct the business of adult premises and who is registered with he Board as a distributor of films. A movie classified “18” may be broadcast or distributed by any person but only to persons 18 years and older. “Adult” movies on TV are those classified “18”, or would have been classified “18” if they were submitted to the Board, and are broadcast during a period when persons under the age of 18 are not expected to be watching TV – during what TV broadcasters call the “watershed” period.

54 Who checks on whether or not distributors and exhibitors are complying with the law?

The Board has appointed Compliance Officers in all the provinces. Compliance officers make on-site visits to distributors and exhibitors to advise them of the requirements of the Act with respect to the distribution and exhibition of films, and to report any non-compliance to the Board or the police for appropriate action where necessary. Members of the public may also report instances of non-compliance to the Board or the police.

55 Can I purchase or rent a film that has not been classified?

The obligation to classify a film, and to distribute or exhibit only films that have been classified by the Board, is imposed on distributors and exhibitors. There is no legal obligation on buyers and renters of films to ensure that the films they purchase or rent have been classified. However, because classification is intended to provide information about the contents of films, and especially with regard to content that may be potentially disturbing or harmful to children, it makes sense to purchase or rent films which have been classified so that they may be enjoyed without exposing any person, especially children, to inappropriate or disturbing or harmful materials.

56 Can I buy a film, game or publication from someone selling these in the streets and street-corners?

Apart from goods “known to be stolen”, there is no law which prohibits you from purchasing a film, game or publication from a street vendor. However, you run the risk of buying “pirate” copies which may be illegal products in terms of the Counterfeit of Goods Act or the Copyright Act and there is no guarantee that the film is a good and “watchable” copy. Buying such products also affects the viability of legitimate dealers and prejudices the film distribution industry in ways which may adversely affect the industry. In addition, the producers of the product are denied the financial returns which they have a right to expect from their investment in the product. “Pirate” products may be attractive to some consumers as they are usually cheap but it is a form of theft.

Relating to child pornography

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57 What is child pornography?

Child pornography is any image or depiction or description of sexual activity in which one or more of the persons depicted or described is a person who is, or appears to be or is depicted or described as being under the age of 18 years. Sexual activity in the context of child pornography has a much wider meaning than its ordinary usage. The mere presence of a person under the age of 18 years in the same image or frame, for instance, of sexual conduct between obvious adults could amount to child pornography. Showing or describing the body, or parts of the body of a person under the age of 18 years in such a manner as to amount to sexual exploitation would also constitute child pornography. The creation, production, possession, distribution, importation, broadcast and attempts to access child pornography are all offences under the Act, punishable, upon conviction, to a maximum of 10 years imprisonment on each count. Subscribing to known child pornography websites would amount to the section 27(1)(a)(iii) offence of taking steps to procure, obtain or access child pornography. Downloading child pornography from the Internet would, in fact, constitute two offences: the section 27(1)(a)(i) possession offence and the section 27(1)(a)(ii) creation offence. The single act of downloading child pornography, therefore, could attract a 20-year sentence.

58 What should I do if I come across child pornography?

In terms of section 27(2) of the Act, you would be guilty of an offence if you do not report such knowledge to the police. You must, therefore, report knowledge or suspicion of any child pornography offence to the police. However, if you come across, without intention or unsolicited, images or descriptions of child pornography, for instance when surfing the Internet or in an e-mail attachment which you did not know contained such images or descriptions, you should report that to the Board’s “Hotline” at 0800 148 148.

Relating to Internet Service Providers and Mobile Phones

59 Does the Act apply to Internet Service Providers?

Yes. An Internet Service Provider is, for the purpose of the Act, any person offering access to the Internet. Such persons must register with the Board and:

• take all reasonable steps to prevent access to child pornography by any person using such services
• report the presence of child pornography on such services, as well as particulars of the person maintaining or hosting or distributing or in any manner contributing to the child pornography site, to the police
• take all reasonable steps to preserve the evidence of child pornography for purposes of investigation and prosecution, and
• upon request, provide the police with the particulars of persons who gained or attempted to gain access to any Internet site that contains child pornography.

60 Is it legal to distribute images and video clips via mobile phones?

No, unless the distributor is registered with the Board and all the materials intended for distribution via mobile phones have been classified. For the purpose of the Act, any picture, whether moving or still, intended for exhibition through the medium of any mechanical, electronic or other device, is a film. Images and video clips distributed via mobile phones are therefore films. It is illegal to distribute images and video clips via mobile phones unless such distribution is in compliance with the Act. See, also, paragraph 19 above.

61 What can I do if I want to show a film for charity, as, for instance, a fund-raising event for a worthy cause?

The Act applies to all distributors and exhibitors of films. Section 26(1)(d) of the Act makes it an offence to exhibit, in public, any film without being registered with the Board. However, the Act provides for exemptions from the provisions of section 26(1)(d). You should apply for exemption by completing the prescribed form, which you may either download from the Board’s website or request from the Board. If your application is approved, you will be granted an exemption to show the film, with or without conditions, and with or without payment of any fee. Exemptions are not automatic but a decision will be based on all the relevant circumstances.

And, finally…..how can you contact the FPB?

Address	87 Central Street
	HOUGHTON
	Johannesburg
Telephone	(011) 483 0971
hotline	0800 148 148 if you want to report child pornography
fax	(011) 483 1084.
e-mail	information@fpb.gov.za
website url	www.fpb.gov.za
Compliance monitors in the provinces may be contacted via the National Coordinator at
	(011) 483 0971

Frequently-Asked Questions(FAQs) about the Films and Publications Act and the distribution of films, interactive computer games and publications in South Africa While every effort has been made to ensure the accuracy of the information, users are advised to consult the official Act and Regulations before making any commitments film and publication board www.fpb.gov.za

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