Social media is fast becoming a primary source of information for many online users. While some use it for interaction or check the latest trends nationally and globally – others use it to disseminate information as seen with the recent unrest that took South Africa by storm.

A reason why it is prudent to know the limitations that are in place for us as citizens and the consequences thereof.

What is the Films and Publications Act 65 of 1996?

It is a piece of legislation that regulates what individuals, businesses and the media can publish on the internet, social media, written media or any other formats.

This Act is there to protect the rights of persons who are in the business of publication of films, short movies so that their work and content thereof is not used without their consent. This also applies to any videos that are taken in a private setting, for example between a couple or videos such as the ones that were being shared on social media during the post-Zuma incarceration unrest.

The act defines a film as: ‘film’ means any sequence of visual images recorded in such a manner that by using such recording, such images will be capable of being seen as a moving picture, and includes any picture intended for exhibition through any medium, including using the internet, or device.

Therefore, any video that is taken by a private person with a cellular phone falls within the definition of what a film is. It is important to understand this so that a private person should protect themselves from being on the wrong side of the law when distributing certain videos on WhatsApp, Twitter, Facebook, Instagram or any other social media space.

In terms of the Act – distribution is defined as: ‘distribute’[,] in relation to a film, game or a publication, without derogating from the ordinary meaning of that word, includes—
(a) to stream content through the internet, social media or other electronic mediums;
(b) to sell, hire out or offer or keep for sale or hire, including using the internet; and[,]
(c) for purposes of sections 24A and 24B, [includes] to hand or exhibit a film, game or a publication to a person under the age of 18 years, and also the failure to take reasonable steps to prevent access thereof by such a person
;’’

Therefore, retweeting a tweet, forwarding on WhatsApp or sharing on Facebook falls within the definition of distribution of a film.

Videos shared during unrest

We have seen the sharing of several videos on social media, some of them depicted the violence that was under way, as a form of a warning to the public. However, some of the footage depicted the intention of other individuals who intended on inciting violence and/or propaganda.

Section 29(1) states that “any person who knowingly distributes a publication which, judged within context-

  1. Amounts to propaganda for war;
  2. Incites to imminent violence; or
  3. Advocates hatred that is based on race, ethnicity, gender or religion, and which constitutes incitement to cause harm,
  4. Shall be guilty of an offence.We have seen on the social media platforms videos wherein certain races were threating to bring harm on people from other racial groups. Such people, should they be caught or identified could find themselves facing the committee who can refer the matter to the National Prosecuting Authority (NPA) for a criminal matter to be opened against the offender.The public is therefore urged to err on the side of caution before distributing any sort of video on their social platforms as this might be seen as distribution, as a result may fall with in the definitions of S 29 (1) – (3) which could result in a person facing a hefty fine or a prison term. – Author Nthabiseng Dubazana from Dubazana Attorneys.