Why the Controversial Films, Stage Plays and Publications Act Cannot Just Pass

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Kenyans have been up in arms on the streets of Twitter the last few days viciously killing and trying to stop the proposed Film Bill. It touches on several industries including the creatives, content development, film production, broadcasting, software (game) development, advertising and the telecommunications industries.

Introduction

As per the proposed bill, “Game” means a computer game, video game or other interactive computer software for interactive game play where the results are changed at various stages of the game and determined in response to the decision, inputs and direct involvement of the game player or players and includes all gaming applications by whatever name called. This definition hereby covers all aspects of computer game development.

Mandate of the Board

The Bill proposes to empower the Board through giving them mandate to regulate the creation, exhibition and distribution of films, for the classification of broadcast content, online content and outdoor advertisements and to provide consumer advice to enable adults to make informed viewing, listening, reading and gaming choices for themselves and for children under their care.

Application of the proposed Bill

The laws therein would apply to— (f) Gaming applications (g) Video on demand and (h) Over the top services.

This wide-ranging application contradicts the spirit of National law which envisages a thriving innovation-fronting, knowledge–based and tech–driven economy. It purports to regulate content on online platforms and over the top services which is unfathomable.

Functions of the KFCB (Kenya Film Classification Board)

These would include monitoring and enforcement of compliance with the provisions of this Act as well as prevention of the exhibition of broadcast or online content, outdoor advertising and games; that are not reflective of national values and aspirations of the people of Kenya.

The statement is very vague and could be open to abuse when it comes to implementation if left unaltered. Additionally, that the Board’s mandate will be to (b) classify films, broadcast and online content, stage performances, gaming applications, publications and related promotional materials.

We do realize the importance of classification of content including games however, having such a blanket provision would be beyond the powers envisaged for the KFCB as well as be a futile attempt in regulating the unregulatable (Read; internet).

Restriction on the exhibition and distribution of films, commercials, games

The law envisages creation of a register of all exhibitors and distributors of content with punitive consequences where that isn’t done. How does the Board forsee registration of online distributers and OTT service providers? Platforms such as Google Play, the iTunes store, Netflix et al. Generally, this law says providing access to such content without prior registration (and classification) with the Board in Kenya would be subject to criminal sanction.

ISP Liability

The proposed law proposes to impose conditions on the ISPs that:

Internet Service Providers must-

a) Ensure that

  • Exhibitors and distributors who use their platforms are registered.
  • The content to be exhibited or distributed through their platforms is classified.
  • All programs being streamed through their platforms comply with the classification guidelines of the Board.

b) Report all persons maintaining or hosting or distributing all content reasonably suspected to be in violation of this Act.

Across the board, worldwide, it is recognized that the role of an ISP is to act as a mere conduit, a channel or platform that allows sharing and spreading of information. Think of it as a water pipe that gets the water from the source to those who need it.

Requiring ISPs to monitor the content that is put up on their platforms is unrealistic, commercially unviable and could possibly amount to censorship. The penalty imposed to ISPs for noncompliance is conviction to a fine of two million shillings or to a term of imprisonment not exceeding two years or both.

Enforcement and Implementation

How the Board foresees implementation of this law and its enforcement is through compliance officers who are appointed or authorized by the Board. The mode of action brings several issues to question;

(1)The law provides that a compliance officer may:

At all reasonable times, enter and inspect any premises or places in which the business of the sale, hire or exhibition of films or games is being conducted;

Interview any person whom he finds any premises or places in which the business of the sale, hire or exhibition of films or games is being conducted.

(2)Upon entry of any premises as contemplated in subsection, the compliance officer may—   (a) Demand the production of a certificate of registration as a distributor or exhibitor of films issued by the Board. (b) examine or inspect any film or games being offered for sale or hire for compliance with the requirements of this Act;

Read alone, this law contradicts fundamental freedoms and rights protected by the supreme law of our land. Also, principles of law such as the right to be heard, right to a fair hearing, presumption of innocence, right to legal representation, right to remain silent if arrested and not to be compelled to make any confession or admissions are not respected by this section.

Nevertheless, the Bill provides for the requirement of proof of identity by these Compliance Officers through the production of a certificate of appointment. Do note, unlike other parastatals which enlist police officers from the National Police Service and appoint them on secondment to act as inspectors, these compliance officers aren’t police officers and as such may enlist the assistance of the police officers which may be subject to abuse.

The Bill furthermore cements the Constitutional principle on consultations with stakeholders or relevant departments in the performance of its functions and exercise of its powers which is commendable.

Conclusion

There is indeed a need for development of a draft law that is put forth for discussion. Granted, you cannot debate nothing and the board set that forth clearly. Also, there have been calls for repeal of the old law which is currently in force. Nonetheless, there are key substantive issues that go to the spirit and letter of the law; as well as the procedure followed in the drafting of this bill. There was not sufficient public input and a lack of stakeholder involvement.

Dr. Mutua unequivocally stated that the bill was trashed and would restart the process of legislative drafting afresh beginning with the development of an industry policy.

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