{"id":10913,"date":"2011-03-28T08:16:00","date_gmt":"2011-03-28T06:16:00","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"-0001-11-29T22:00:00","slug":"illegal-digital-distribution-in-sa-analysed","status":"publish","type":"post","link":"https:\/\/mygaming.co.za\/news\/features\/10913-illegal-digital-distribution-in-sa-analysed","title":{"rendered":"Illegal digital distribution in SA analysed"},"content":{"rendered":"

MyGaming recently contacted the Film and Publications Board of South Africa – the governmental body responsible for rating media products in South Africa, and without whose rating media cannot be legally sold and distributed. In the interview<\/a> it emerged that downloading games through digital distribution channels such as Steam is technically illegal, as the FPB has not rated the games.<\/p>\n

Of course there are likely a number of legal and logistical issues at play so we caught up with some IT-oriented lawyer types to find out their opinion on the matter.<\/p>\n

Nicholas Hall of Michalsons Attorneys came out swinging: “First off before I answer your questions, I think the FPB needs to re-look at their governing legislation first, especially the Amendment Act of 2009. What is important to note is that “broadcasters” that are governed and licensed by ICASA are exempt from submitting films, games and other material to the FPB (See sections 18(6) and 24A(2)(a))  so the argument that digital distribution channels are automatically illegal, to my mind, may be false especially if you consider that:<\/p>\n

•    Most (if not all of the ISP’s) have licences with ICASA. 
•    Various ISP’s (IS and Web Africa specifically spring to mind) have local Steam servers which are used to distribute content.”<\/p>\n

“So in my mind, games that people buy from Steam are more than likely coming from the South African steam servers, which in turn are operated by companies that are regulated by ICASA and thus are exempt,” said Hall.<\/p>\n

“This also gives Steam an easy way to become compliant – all they would need to do is get a licence from ICASA, or make sure that all Steam Servers in SA are operated by members that are governed by ICASA,” Hall continued.<\/p>\n

“Further I would argue that the mere fact that games are being distributed digitally doesn’t mean that the actual game (in terms of content) has not been submitted for classification. Most (if not all) of the games available on Steam are also available from local games stores, and since those games must have been submitted for classification, then the games available digitally would also have been classified. After all, not every copy of a game needs to be submitted for classification, only a single instance. The only thing then that Steam could be said to be guilty of is that is does not fully comply with the display of certificates and ratings. Although, this might also be a difficult to prosecute as all games on Steam do display an age rating,” said Hall.<\/p>\n

We wanted to know if the FPB could effectively do anything about digital distribution originating in foreign countries, such as forcing ISPs to block such traffic in compliance.<\/p>\n

Warren Weertman of Bowman Gilfillan Attorneys thinks they could: “Yes, the FPB could force ISPs to block such content to comply with the Films and Publications Act. There are already provisions in place in the Films and Publications Act that compels ISPs to register with the FPB as well as stipulating rules on how people who provide child-related services such as (Mxit) must operate their businesses,” said Weertman.<\/p>\n

Hall agrees, saying: “Theoretically yes; publication boards in China, India and Australia have managed to successfully get ISPs to block traffic to sites that don’t meet the country’s ‘standards.’ If the Board tried to do it [in South Africa], I think they would likely face a huge outcry from the public, and I think an argument could be made that it is unconstitutional.”<\/p>\n

One of the more contentious issues raised by our readers in light of the interview with the FPB<\/a> was the potential for South African Customs services to confiscate any unrated digitally distributed content. Hall indicated that this was a complicated issue that would require quite a bit of research to answer fully.<\/p>\n

Weertman provided a firm answer however, explaining that “In terms of the Films and Publications Act as well as possibly the Counterfeit Goods Act, digital goods could be seized.”<\/p>\n

Discussing the implications of this and the seizing of someone’s hard drive, and the consequent data privacy concerns, Weertman elaborated: “The FPB could seize a hard drive but the court would be limited to specific information that they could search and seize.<\/p>\n

We arrived at the inevitable questions of whether or not South Africans are breaking laws when they purchase an entertainment product that is delivered digitally, circumventing the FPB rating process.<\/p>\n

Hall said that “Based on my arguments above I would say no. In the Act it also doesn’t make purchasing or even possessing circumvented goods an offence (except if its child pornography). So no, technically speaking they are not breaking any laws. It is the distributor that is breaking the law.”<\/p>\n

“Distributors could face prison time of up to 6 months and a fine for distributing unclassified content,” concluded Hall.<\/p>\n

Weertman expanded on this, citing Section 24A(1) of the Films and Publications Act, which states the following:<\/p>\n

24A<\/strong>. Prohibitions, offences and penalties on distribution and exhibition of films, games and publications. Any person who knowingly distributes or exhibits in public a film or game without first having been registered with the Board as a distributor or exhibitor of films or games shall be guilty of an offence and liable, upon conviction, to a fine or to imprisonment for a period not exceeding six months or to both a fine and such imprisonment.<\/p>\n

“The key element appears to be “distribution” for the purposes of Section 24A. There are also limitations on the possession of certain types of films and games in terms of Section 24B, but these appear to relate to child porn. There seems to be a lacuna (gap) in the act in terms of which the downloading of unrated material could be allowed for private purposes only. However, the minute you start distributing you fall foul of Section 24A. However, the studios may take a dim view on anyone downloading unrated films in terms of the FPA since this could infringe their copyright and distribution rights,” concluded Hall.<\/p>\n

Illegal digital distribution in South Africa analysed<\/strong><\/a> << Comments and views<\/p>\n","protected":false},"excerpt":{"rendered":"

MyGaming gets some legal opinion on the legal grey area of unrated digitally distributed games in SA<\/p>\n","protected":false},"author":157,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[20],"tags":[],"class_list":["post-10913","post","type-post","status-publish","format-standard","hentry","category-features"],"_links":{"self":[{"href":"https:\/\/mygaming.co.za\/news\/wp-json\/wp\/v2\/posts\/10913","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mygaming.co.za\/news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mygaming.co.za\/news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mygaming.co.za\/news\/wp-json\/wp\/v2\/users\/157"}],"replies":[{"embeddable":true,"href":"https:\/\/mygaming.co.za\/news\/wp-json\/wp\/v2\/comments?post=10913"}],"version-history":[{"count":0,"href":"https:\/\/mygaming.co.za\/news\/wp-json\/wp\/v2\/posts\/10913\/revisions"}],"wp:attachment":[{"href":"https:\/\/mygaming.co.za\/news\/wp-json\/wp\/v2\/media?parent=10913"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mygaming.co.za\/news\/wp-json\/wp\/v2\/categories?post=10913"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mygaming.co.za\/news\/wp-json\/wp\/v2\/tags?post=10913"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}