Interactive Entertainment South Africa's Comments on Films and Publications Amendment Bill
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COMMENT ON THE FILMS AND
PUBLICATIONS AMENDMENT BILL [B 37-2015]
ON BEHALF OF INTERACTIVE ENTERTAINMENT SOUTH AFRICA
AND
MAKE GAMES SOUTH AFRICA
WHO WE ARE - IESA
•
Interactive Entertainment South Africa (“IESA”) is non-profit company tasked formed
to lobby, develop policy and help grow the South African games industry.
•
IESA is funded completely through membership funds.
•
Our 9 founding companies provide nearly half of the full time jobs in the industry,
account for 76% of the total value of the industry and last year alone commercially
released 86 games and have 47 games in active development.
WHO WE ARE – MAKE GAMES SOUTH AFRICA
•
Make Games South Africa (“MGSA”) is the largest online community for game
developers in the country.
•
We have over 2000 members.
•
Members range from students, hobbyists and professional developers
•
MGSA has been the incubator for some of South Africa’s most successful
games to date.
THE CASE FOR VIDEO GAMES
•
Globally the video game market is worth an estimated $99.6 Billion
1
•
Largest entertainment medium, worth more than film and music combined
•
In South Africa, consumer market worth an estimated R2.99 Billion
2
•
Local development economy worth about R100 million
3
•
Only R1.9 Million (or 0.06%) of SA consumer revenues go to SA developers, and
most of that is for service work.
•
100% of locally produced games are distributed digitally.
THE CASE FOR VIDEO GAMES
•
Games are an excellent mechanism to encourage learning and developing
skills for an ITC economy.
•
While the industry is still very much a fledgling industry it has massive growth
(between 82%-72% growth year on year for the last 3 years).
•
Massive opportunity to create jobs in a knowledge economy and feed
parallel industries like film, animation and traditional IT.
COMMENTS ON THE BILL - PREFACE
•
The Bill must be read with the Online Policy in mind.
•
It is clear that the FPB intends to implement strict controls over the type of
content South Africans can consume in the digital space.
•
For a body that claims not to be a censorship board, the bill and policy give
an alarming amount of censorship powers.
COMMENTS ON THE BILL - PREFACE
•
The Films and Publications Board states (as mentioned in the Act) that it is main
objectives are:
(a)
provide consumer advice
to enable adults to make informed viewing, reading and
gaming choices, both for themselves and for children in their care;
(b)
protect children
from exposure to disturbing and harmful materials and from
premature exposure to adult experiences; and
(c) make the use of children in and the exposure of
children to pornography
punishable
.
COMMENTS ON THE BILL - PREFACE
•
S16 of the Constitution States
(1) Everyone has the right to freedom of expression, which includes—
(a) freedom of the press
and other media
;
(b) freedom to receive or impart information or ideas;
(c)
freedom of artistic creativity
; and
(d) academic freedom and freedom of scientific research.
COMMENTS ON THE BILL – PREFACE
•
The creation of games and films are intrinsically a creative and artistic
expression.
•
Games have been recognised as creative process in other jurisdictions, most
notably in
Brown v. Entertainment Merchants Association
COMMENT ON THE BILL – PRIMARY SUBMISSION
•
Section 18 read with s24A of the Act and the proposed additions and
amendments these sections as envisaged by the bill are unconstitutional.
•
These sections require administrative prior classification of films and games,
and make it a criminal offence not to comply.
•
This system of administrative prior classification is unconstitutional due to it
being an unreasonable limitation of the freedom of speech.
COMMENT ON THE BILL – PRIMARY SUBMISSION
•
The constitutional court case
Prime Media v Minister of Home Affairs and
another
(CCT 113/11) the court explicitly states that the system of
administrative prior classification is unconstitutional.
•
At para 45 “
In my view the respondents have failed to demonstrate that the
Act’s administrative prior classification system
is constitutionally defensible
” (our
emphasis);
COMMENTS ON THE BILL – PRIMARY SUBMISSION
•
At para 52 “
As I see it,
the free flow of constitutionally protected expression is
the rule and administrative prior classification should be the exception
.
”
COMMENTS ON THE BILL – PRIMARY SUBMISSION
•
The FPB has not presented any evidence, to my knowledge, on why films and games
should be treated differently.
•
Yes, games are subject to cultivation theory, as are films, books and other form of
mass media. Latest research tends to support this (if you are a violent person,
watching, playing or reading a violent film, book or game will make you more
“aggressive”).
•
Most studies on games specifically are poor though, and other jurisdictions agree
that the evidence is inconclusive.
COMMENTS ON THE BILL – PRIMARY SUBMISSION
•
At para 70 “
Administrative prior restraint is also not the only way
in which the
state can promote lawful conduct on the part of publishers
”. (our emphasis);
•
At para 72 “
In my view,
the central constitutional deficiency lies in the
administrative and compulsory nature of the Act’s prior classification scheme
, in
circumstances where
there are less restrictive alternatives for achieving important
legislative purposes
”. (our emphasis)
COMMENTS ON THE BILL – PRIMARY SUBMISSION
•
Classification is not the problem
per se
. And we submit that content that would
carry an age rating above 18 should be subject to prepublication
classification.
•
“
provide consumer advice”
is not a sufficient justification to criminalise not
complying with the laws nor the chilling effect it has on developers.
•
The administrative prior classification system is ineffectual in meeting the Acts
goals, specifically for sub 18 classifications
COMMENTS ON THE BILL – PRACTICAL EFFECTS
•
Anyone who distributes or makes games available online needs to register with the
board, regardless of whether the game is being sold, given away or being posted
for comment and criticism. One would need to pay a fee of R1500.00 for this.
•
Every game would need to be classified
PRIOR
to it being made available online
regardless of whether the game is still a prototype, in development, or completed,
and again regardless of the commercial intent of game. Classification costs
R1831.00 per title, per platform (so if you released the same game on three
different platforms, it would need to be classified three times).
COMMENTS ON THE BILL – PRACTICAL EFFECTS
•
Any other form of digital content that is not a game (including tweets,
Facebook posts, photographs and music) can be pulled by the board if a
complaint is laid against the content.
•
Online distributors and platforms (like Steam or Good Old Games) who don’t
enter into contracts with the FPB allowing the FPB to pull content will risk
having their platforms no longer accessible in South Africa. The FPB has stated
that it would investigate having non-compliant distributors blocked at the ISP
level.
COMMENTS ON THE BILL – PRACTICAL EFFECTS
•
This bill will significantly increase the cost for small to medium sized companies and
individuals to make games in South Africa.
•
This will have a massive impact on online communities like Make Games SA which will
effectively be rendered illegal by the law.
•
Access to the major online distributors may be closed. This will hurt consumers, but
also developers as the primary distribution channel to international markets would no
longer be accessible from South Africa. If this were to come into effect, it will kill the
fledgling industry in one foul swoop.
COMMENTS ON THE BILL – PRACTICAL EFFECTS
•
A similar law in China has been passed. It is difficult to get exact statistics, but
anecdotal evidence (communicating with Chinese developers) has shown a
massive closure of “indie” studios.
COMMENTS ON THE BILL – PRIMARY CONCLUSION
•
The Bill and underlying Act are unconstitutional as it relates to the
administrative prior classification of films and games.
•
No evidence or rationale has been lead to support why films and games
should be treated differently
•
We would call that bill be changed to have amendments to s18 that remove
the administrative prior classification of films and games that would receive a
18 or less classification
COMMENTS ON THE BILL – PRIMARY CONCLUSION
•
Administrative prior classification for media that would receive a X18 or
higher rating should be subject to administrative prior classification.
•
It should not be a criminal offense to have not submitted something for
classification if it would have received a 18 or lower rating
COMMENTS ON THE BILL – OTHER ISSUES
•
We welcome the addition of s18C to 18F
•
We question the suitability of the “revenge porn” crime in this particular bill,
but support that it is being legislated against
•
We cannot support the ability of the FPB to order access to online platforms
and sites be blocked in SA
Thank you
Interactive Entertainment South Africa and Make Games South Africa present their views on the Films and Publications Amendment Bill. They highlight the importance of the gaming industry in South Africa, emphasize the potential for economic growth and job creation, and express concerns about potential censorship powers outlined in the bill.
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Presentation Transcript
COMMENT ON THE FILMS AND PUBLICATIONS AMENDMENT BILL [B 37-2015] ON BEHALF OF INTERACTIVE ENTERTAINMENT SOUTH AFRICA AND MAKE GAMES SOUTH AFRICA
WHO WE ARE - IESA Interactive Entertainment South Africa ( IESA ) is non-profit company tasked formed to lobby, develop policy and help grow the South African games industry. IESA is funded completely through membership funds. Our 9 founding companies provide nearly half of the full time jobs in the industry, account for 76% of the total value of the industry and last year alone commercially released 86 games and have 47 games in active development.
WHO WE ARE MAKE GAMES SOUTH AFRICA Make Games South Africa ( MGSA ) is the largest online community for game developers in the country. We have over 2000 members. Members range from students, hobbyists and professional developers MGSA has been the incubator for some of South Africa s most successful games to date.
THE CASE FOR VIDEO GAMES Globally the video game market is worth an estimated $99.6 Billion1 Largest entertainment medium, worth more than film and music combined In South Africa, consumer market worth an estimated R2.99 Billion2 Local development economy worth about R100 million3 Only R1.9 Million (or 0.06%) of SA consumer revenues go to SA developers, and most of that is for service work. 100% of locally produced games are distributed digitally.
THE CASE FOR VIDEO GAMES Games are an excellent mechanism to encourage learning and developing skills for an ITC economy. While the industry is still very much a fledgling industry it has massive growth (between 82%-72% growth year on year for the last 3 years). Massive opportunity to create jobs in a knowledge economy and feed parallel industries like film, animation and traditional IT.
COMMENTS ON THE BILL - PREFACE The Bill must be read with the Online Policy in mind. It is clear that the FPB intends to implement strict controls over the type of content South Africans can consume in the digital space. For a body that claims not to be a censorship board, the bill and policy give an alarming amount of censorship powers.
COMMENTS ON THE BILL - PREFACE The Films and Publications Board states (as mentioned in the Act) that it is main objectives are: (a) provide consumer advice to enable adults to make informed viewing, reading and gaming choices, both for themselves and for children in their care; (b) protect children from exposure to disturbing and harmful materials and from premature exposure to adult experiences; and (c) make the use of children in and the exposure of children to pornography punishable.
COMMENTS ON THE BILL - PREFACE S16 of the Constitution States (1) Everyone has the right to freedom of expression, which includes (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research.
COMMENTS ON THE BILL PREFACE The creation of games and films are intrinsically a creative and artistic expression. Games have been recognised as creative process in other jurisdictions, most notably in Brown v. Entertainment Merchants Association
COMMENT ON THE BILL PRIMARY SUBMISSION Section 18 read with s24A of the Act and the proposed additions and amendments these sections as envisaged by the bill are unconstitutional. These sections require administrative prior classification of films and games, and make it a criminal offence not to comply. This system of administrative prior classification is unconstitutional due to it being an unreasonable limitation of the freedom of speech.
COMMENT ON THE BILL PRIMARY SUBMISSION The constitutional court case Prime Media v Minister of Home Affairs and another (CCT 113/11) the court explicitly states that the system of administrative prior classification is unconstitutional. At para 45 In my view the respondents have failed to demonstrate that the Act s administrative prior classification system is constitutionally defensible (our emphasis);
COMMENTS ON THE BILL PRIMARY SUBMISSION At para 52 As I see it, the free flow of constitutionally protected expression is the rule and administrative prior classification should be the exception.
COMMENTS ON THE BILL PRIMARY SUBMISSION The FPB has not presented any evidence, to my knowledge, on why films and games should be treated differently. Yes, games are subject to cultivation theory, as are films, books and other form of mass media. Latest research tends to support this (if you are a violent person, watching, playing or reading a violent film, book or game will make you more aggressive ). Most studies on games specifically are poor though, and other jurisdictions agree that the evidence is inconclusive.
COMMENTS ON THE BILL PRIMARY SUBMISSION At para 70 Administrative prior restraint is also not the only way in which the state can promote lawful conduct on the part of publishers . (our emphasis); At para 72 In my view, the central constitutional deficiency lies in the administrative and compulsory nature of the Act s prior classification scheme, in circumstances where there are less restrictive alternatives for achieving important legislative purposes . (our emphasis)
COMMENTS ON THE BILL PRIMARY SUBMISSION Classification is not the problem per se. And we submit that content that would carry an age rating above 18 should be subject to prepublication classification. provide consumer advice is not a sufficient justification to criminalise not complying with the laws nor the chilling effect it has on developers. The administrative prior classification system is ineffectual in meeting the Acts goals, specifically for sub 18 classifications
COMMENTS ON THE BILL PRACTICAL EFFECTS Anyone who distributes or makes games available online needs to register with the board, regardless of whether the game is being sold, given away or being posted for comment and criticism. One would need to pay a fee of R1500.00 for this. Every game would need to be classified PRIOR to it being made available online regardless of whether the game is still a prototype, in development, or completed, and again regardless of the commercial intent of game. Classification costs R1831.00 per title, per platform (so if you released the same game on three different platforms, it would need to be classified three times).
COMMENTS ON THE BILL PRACTICAL EFFECTS Any other form of digital content that is not a game (including tweets, Facebook posts, photographs and music) can be pulled by the board if a complaint is laid against the content. Online distributors and platforms (like Steam or Good Old Games) who don t enter into contracts with the FPB allowing the FPB to pull content will risk having their platforms no longer accessible in South Africa. The FPB has stated that it would investigate having non-compliant distributors blocked at the ISP level.
COMMENTS ON THE BILL PRACTICAL EFFECTS This bill will significantly increase the cost for small to medium sized companies and individuals to make games in South Africa. This will have a massive impact on online communities like Make Games SA which will effectively be rendered illegal by the law. Access to the major online distributors may be closed. This will hurt consumers, but also developers as the primary distribution channel to international markets would no longer be accessible from South Africa. If this were to come into effect, it will kill the fledgling industry in one foul swoop.
COMMENTS ON THE BILL PRACTICAL EFFECTS A similar law in China has been passed. It is difficult to get exact statistics, but anecdotal evidence (communicating with Chinese developers) has shown a massive closure of indie studios.
COMMENTS ON THE BILL PRIMARY CONCLUSION The Bill and underlying Act are unconstitutional as it relates to the administrative prior classification of films and games. No evidence or rationale has been lead to support why films and games should be treated differently We would call that bill be changed to have amendments to s18 that remove the administrative prior classification of films and games that would receive a 18 or less classification
COMMENTS ON THE BILL PRIMARY CONCLUSION Administrative prior classification for media that would receive a X18 or higher rating should be subject to administrative prior classification. It should not be a criminal offense to have not submitted something for classification if it would have received a 18 or lower rating
COMMENTS ON THE BILL OTHER ISSUES We welcome the addition of s18C to 18F We question the suitability of the revenge porn crime in this particular bill, but support that it is being legislated against We cannot support the ability of the FPB to order access to online platforms and sites be blocked in SA
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