The Film and Publications Amendment Bill approved by the National Assembly in March 2018 is a classic example of good intentions gone bad and should be sent back and re-written, according to the Internet Service Providers' Association of South Africa (ISPA).

The draft legislation, which is now before the National Council of Provinces (NCOP), legislates for the rights and responsibilities of media producers and consumers, lays out what content is legal or illegal and how media can be classified with age ratings.

However, the Act was initially drafted in 1996, before the spread of internet usage in South Africa, and ISPA says it needs redrafting for the internet and social media age.

The organisation believes a series of amendments over the years have done nothing to help the Film and Publication Board pursue its mandate of providing information to consumers to allow them to choose the content they consume online.

In fact, ISPA believes the bill in its current form is tantamount to "internet censorship", and could have a negative effect on consumers of media.

This comes at a time when African governments are in the spotlight with regard to their attitude to digital communication, with Uganda rolling out a social media tax and Tanzania requiring bloggers to pay for licenses. Though ISPA does not accuse anyone of malicious intentions in this case, it says changes need to be made to protect internet freedoms.

With the growth of video-on-demand (VOD) services like Netflix and Showmax, consumers are now increasingly getting movies and other content from online platforms, meaning it is necessary for this content to be classified. There is also a need to address hate speech and unlawful conduct online.

"Unfortunately, while the Bill sets out a framework for classification of online content which could be useful, this is lost in vague definitions and ill-considered attempts to expand the role of the Film and Publications Board into an Internet policeman," said Dominic Cull, ISPA's regulatory advisor.

"Problematic definitions effectively turn all South African internet users into online content distributors, directly regulated by the Film and Publications Board."

The Bill proposes three different definitions of the term 'distributor', with one of these relating to a "non-commercial online distributor", defined as "any person who distributes content using the internet, or enables content to be distributed by a user of online services, for personal or private purposes".

ISPA said this goes well beyond the original mandate of South Africa's film and publications legislation, which is to regulate the activities of people in the business of distributing films, games and publications.

It said it means that the Bill, in effect, seeks to regulate all South Africans who distribute electronic content, and this may include private communication between individuals, such as WhatsApp messages, Facebook and Twitter posts, and comments on online news articles.

This broad scope, ISPA says, means that the provisions of the Bill interact dangerously with fundamental constitutional rights such as freedom of expression.

"The Bill empowers the Film and Publications Board to make decisions about what is and what is not protected speech and to issue takedown notices where it is of the view that speech is not protected. ISPA believes that a quasi-government body appointed by a Minister should not be making extremely complex legal judgment calls about something as fundamental to our hard-won democracy as freedom of expression," said Cull.

"Before this Bill is signed into law, there should be careful consideration of the draft Bill's content, provisions and how these interact with our constitutional rights. If all else fails to remedy the Film and Publications Amendment Bill, the Act should be repealed and re-written from scratch."