If an entity is in the business of distributing films, series and games in South Africa, it has to be registered with the Film and Publications Board (FPB), which screens content for classification purposes.
This is according to the Films and Publications Act, which governs streaming services such as Netflix and Showmax, cinema houses including Nu-Metro and Ster-Kinekor, gaming companies such as Konami and Capcom, as well as Apple TV and Google.
Broadcasters — the SABC, e.tv and all channels on the DStv and Open View bouquet — are exempt, because they fall under the regulatory framework of the Independent Communications Authority of South Africa.
Under the Films and Publications Act, distributors that have not registered with the board are doing so unlawfully. Yet Netflix operated freely for four years before it signed the distributor agreement early last week.
A 2017 News24 article reported on how Yann Lafargue, who was then the Netflix manager for technology and corporate communications in Europe, Middle East and Africa, said “Netflix self-regulates” to avoid being subject to “a cumbersome system”. To this point the board argued that independent rating systems cannot be used across the globe, because what a demographic considers to be harmful is determined by their cultural norms. “The value proposition we offer as the FPB is offering distributors comprehensive research and data about the values and norms of the South African context,” explains Abongile Mashele, the board’s acting chief executive.
In cases where a distributor is non-compliant, the Act gives the board the option to report the matter to the police and have the distributor shut down. But the board chose another route. “We opted to take the longer negotiation and engagement route, because it would have had huge consequences for freedom of speech and expression in the country,” says Mashele.
Now that Netflix is registered as a distributor, it is required to pay the board a licensing fee of R795 000 a year — an amount that was gazetted by the 2015 “weekend special” minister of finance, David van Rooyen. This amount supplements the contributions from taxpayers, which go towards the research that ratings and classifications are based on. “They [Netflix] don’t owe us anything from the past years, because we have not been making any parties make retrospective payments,” Mashele adds.
As a part of the agreement, the streaming platform’s primary obligation is to have their material classified and rated in accordance with the board’s guidelines. The point is to ensure that the material is allocated age advisories to protect children from being exposed to content that could be harmful. The classifications and age restrictions are informed by research that is tailored to the South African demographic.
Unlike the agreements that the board has with other distributors, the co-regulatory agreement between the FPB and Netflix sees both parties putting in work; instead of each work being brought to the board for classification, Netflix has to do it itself using the board’s classification and rating guideline handbook. The agreement also entails training and quality assuring the manner in which Netflix uses the guideline.
“If you look at the platform as it currently stands, you will not get a 7-9 PG [parental guidance], 13 or a 16 rating,” adds Mashele, who says regulations will be implemented once the board has concluded training Netflix.
In response to questions about the distributor’s decision to come on board, Netflix sent the Mail & Guardian the following statement: “Our work with the Film and Publications Board is part of our wider efforts to give our members more control and choice. We want our members in South Africa to have the information they need to make informed entertainment choices for themselves and their families.”
Apart from serving the consumer, the distributor agreement safeguards Netflix from having to tackle classification grievances without the country’s regulatory board on their side. To add to this, Mashele points to the controversy about the Netflix series 13 Reasons Why. Based on Jay Asher’s fictional novel of the same name, the details how the suicide of a teenager, Hannah Baker, affects her classmates. In 2018 Time magazine reported that parents expressed concerns about the graphic scene of Hannah’s suicide. The Parents Television Council in the United States asked for the series to be pulled because it feared contagion.
“With this agreement in place, consumers can complain to the FPB if they feel that the rating on such a show is not adequate,” Mashele says.
Given that the two parties have only begun working together, and training is yet to commence, it isn’t clear when the changes will be reflected on the Netflix interface.
But Netflix subscribers can rest assured that — apart from disclaimers about violence, sexual content, nudity, prejudice and age restrictions — the distributor agreement will not affect their viewing experience.