THE CENTRE FOR CONSTITUTIONAL RIGHTS
SUBMITS COMMENTS ON THE PROPOSED FLIMS AND PUBLICATIONS AMENDMENT BILL TO
PARLIAMENT
THE F W de Klerk Foundation’s Centre
for Constitutional Rights today submitted comments on the proposed Films and
Publications Amendment Bill to the
Parliamentary portfolio committee on Home Affairs.
Speaking
on the eve of Freedom Day, Nikki de Havilland, Deputy Director of the Centre,
said that certain
aspects
of the bill
gave raise to
grave concern
and
would not pass constitutional muster.
“The
Bill will
not stand up to judicial scrutiny
due to vagueness and because
it is not procedurally fair”. In particular, the Centre is
concerned about
·
the
inclusion and regulation of print and broadcasting material within the scope of
the Bill;
·
provisions
impacting on the reach of print and broadcasting material requiring
pre-publication censorship;
·
the
vagueness of the definitions of such material and in particular the definition
of so called hate-speech;
and
·
the
independence of the Film and Publications Board and the Communications Regulator.
De
Havilland said
that whilst
the Centre supported the laudable and necessary aim of
the Bill, which is to protect children from potentially disturbing, harmful or
age-inappropriate material
and sexual exploitation, there are too many aspects which give rise to concern.
De
Havilland also
said that the Centre is heartened by the Government’s declared commitment that
its intention was not to curtail free speech and expression.
It insisted that it
wished to work towards a common solution which protected the rights of children
but
which
did not have ‘unintended consequences in, or legislation that impacted
negatively on, other things broader than the
objects of the legislation.”
“The Centre is extremely concerned that the inclusion of the print, broadcasting and electronic media within the ambit of the proposed
Bill will directly impinge on the
constitutionally guaranteed freedom of the media. This freedom is guaranteed by Section 16 of the Constitution, which specifically
refers to freedom of the media as a critical component of freedom of
expression.
“One
of the goals of freedom of expression is to establish and maintain an open and democratic
society,
made
possible through the dissemination of information and diverse views by the
media. Freedom of expression is a critical anchor of our constitutional
democracy,” she said.
De
Havilland
said a
central concern
of the CFCR was the use of
loosely phrased and ill-defined terms to describe material which has to be submitted for pre-publication classification. This would in practice mean that much of the content of daily news reports and
broadcasts would
require pre-publication approval.
“Given
that newspapers and broadcasters
run
tight deadlines, the practical effect of this
measure will cause serious delays in the dissemination of information or force the media to exclude certain
content in order to meet the deadlines,” she explained.
According to De Havilland other aspects of the Bill also give reason for concern, such as
·
the
use of wide and vague definitions of critical terms;
·
the
deviation
from the definition of hate
speech
in the Constitution
– which could, for example, prohibit bona
fide
reports on statements by President Bush on the Iraq War;
·
the
removal of the right to appeal
to the High Court;
·
the
provision that is made for a
limited right to appeal to
an Appeal Board appointed by the Minister (contrary to provisions of Section 33
of the Constitution which requires that any such reviews should be carried out by an impartial and independent
tribunal or court.)
“On
Freedom Day we must be reminded that freedom of the South African media is
guaranteed by the Constitution. No government institution or Bill,
such as the proposed Films and
Publications Amendment Bill, can limit rights contained in the Constitution, unless the limit is reasonable and
justifiable in a democratic context and is proportionate to the circumstances.
The limitation on freedom of expression in the proposed bill is neither justifiable, reasonable
nor proportionate to its purpose,” De Havilland said.
Ends……
Issued by the FW de Klerk Foundation
Centre for Constitutional Rights
Enquiries:
Danie Keet
Tel: +27(0)21 930-3622