IESA presentation to the Communications Sub Committee on the Films and Publications Amendment Bill

1. COMMENT ON THE FILMS AND
PUBLICATIONS AMENDMENT BILL [B
37-2015]
ON BEHALF OF INTERACTIVE ENTERTAINMENT SOUTH AFRICA
AND
MAKE GAMES SOUTH AFRICA

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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

10. 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.

11. 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);

12. 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.”

13. 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.

14. 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)

15. 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

16. 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).

17. 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.

18. 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.

19. 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.

20. 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

21. 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

22. 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

23. Thank you