South African Chapter of the Media Institute of Southern Africa

REPRESENTATIONS on the FILMS AND PUBLICATIONS AMENDMENT BILL 2006
Misa-SA wishes to thank you Mr Chairman and the Portfolio Committee on Home Affairs for the opportunity to present our views on the proposals contained in the Films and Publications Amendment Bill (B27 - 2006).

The SA Chapter of the Media Institute of Southern Africa is a civil society organisation which represents practitioners in the media and freedom of expression adherents in South Africa and Southern Africa. It sees its role as upholding and maintaining the fundamental freedom of expression and freedom of the media clauses in the South African Constitution and international protocols such as:

* Article 19 of the Universal Declaration of Human Rights;
* The African Union's freedom charter as defined in the Declaration of Principles on Freedom of Expression in Africa by the African Commission on Human and Peoples' Rights;
* The Windhoek Declaration; and
* The European Convention on Human Rights.

All these declarations and the South African Constitution uphold the principle that freedom of expression and freedom of the media are fundamental in democratic countries. Indeed, these freedoms are regarded as the key to good governance and the health of a democratic society.

We emphasise that we believe the South African government is firm in its commitment to freedom of expression and freedom of the media and transparency in governance though we are aware that there are cases where certain officials have strayed from these principles.

We have many concerns about the Bill and the manner of its introduction to the country.

There was no notification to the industry in advance that a fundamental feature in the Films and Publications Act which is a major factor in the protection of media freedom in South Africa and has resonance with similar protective devices in other democratic countries -- that is, the exemption of the print and broadcast news media from the provisions of the Act -- is to be summarily removed. This exemption has been in force for more than 40 years.

Also, there was no consultation with the industry to enable it to present its views on these proposals before they were formulated into proposed legislation. We believe this lack of consultation and transparency is contrary to the spirit of the Constitution or normal parliamentary practice. Since our first representations about the Bill were sent to the Department of Home Affairs in October, we were promised proper consultation but this has not taken place. We have noted the contrast between the absence of consultation with a key industry that serves the public interest and the several years of consultation that has taken place between the government and other industries over BEE codes of conduct, regulations, etc.

We now appear before your committee at a stage when the Bill is undergoing its final processes before being debated in parliament without the issues being properly considered by the relevant government department and, as a result, placing a heavy burden on this committee.

We recognise the determined manner in which this committee has dealt with another problem Bill such as the Civil Union Act and how it was determined to comply with the Constitutional imperatives related to the Bill. In regard to the committee's adherence to the Constitution in that matter, we appeal to the committee to recognise our fears that the Constitutional safeguards on freedom of expression and freedom of the media are being eroded by provisions in the Films and Publications Amendment Bill and urge that it consider the withdrawal of the Bill to enable proper consultation to take place or to restore the exemptions.

However, in regard to the restoration of the exemptions, we believe that the current legislation is inadequate and request that the exemptions in regard to the print media be extended to all print media and not merely media members of Print Media SA. We believe the present exemption is too narrow and limiting. There are many other forms of media which should be exempted from classification procedures. Indeed, in the spirit of the freedom of expression clauses in the Constitution, the widest latitude should be accorded the media in all its forms.

We understand that there may be some attempt to restore the exemptions in a limited manner and we express our earnest wish that should this occur, that the portfolio committee will see its way clear to reduce the limitations and to widen the exemptions to the fullest extent in accordance with the intentions of the Constitution.

In support of this appeal we quote clause 7 (2) in the Constitution which states that ``the State must respect, protect, promote and fulfill the Rights in the Bill of Rights'' and clause 8 (1) which states that ``the Bill of Rights applies to all law and binds the legislature, the executive, the judiciary and all organs of State''.

These clauses outline the onerous duty the State has to protect and promote the freedom of expression and freedom of the media clause 16 in the Bill of Rights.

The removal of the exemption means that news media will have to comply with the requirement to submit certain news stories for classification by the Films and Publications Board before publication. In our view this constitutes unacceptable and undemocratic pre-publication censorship.

The stated intention of the Bill is to combat child pornography, with which our organisation is totally supportive. We recognise the serious harm that is caused children by their exposure to the publication of child pornography or adult pornography and practices related to pornography. Within the media industry we are grappling with the code of ethics which forms the basis of our self regulation mechanisms to revise it in such a way that it urges on editors and journalists the need to act with the utmost care and sensitivity in dealing with such matters while not compromising their Constitutional duty to exercise the maximum freedom of the media and to keep the public informed. At least one media group has set up detailed guidelines for its staff when dealing with this subject.

However, the Bill goes much further than combating child pornography. It introduces wide-ranging provisions expressed extremely broadly as requirements for pre-publication classification in such a way that they have the effect of pre-publication censorship on subjects other than child pornography: sexual conduct, propaganda for war, incitement to violence and hate speech.

These requirements go much further than the limitations expressed in the Constitution and would impose extremely onerous conditions pertaining to the reporting of rape or other criminal cases involving indecency, the reporting of such ``propaganda for war'' statements as that made by President George Bush when explaining his reasons for going to war in Iraq, outbreaks of public violence and statements that could amount to hate speech.

In addition to the reporting difficulties, there is the prospect of chaos in the production and distribution departments of newspapers and in the production studios of the broadcast media in trying to comply with the Bill's requirements. Indeed, our view is that it will be impossible for any company to comply without subjecting itself to ongoing self-censorship, a situation totally unacceptable in a free democratic country.

The exemptions were granted by the government of the day in return for the media industry imposing self-regulation upon itself which it has done with professionalism and continues to do. There is a strong feeling in the media that the unilateral proposal to remove the exemptions and thus end the agreement reached in 1962 is a serious breach of what has become, in view of its long tenure, a binding agreement.

In regard to self regulation of the media, it should be pointed out that the Press Ombudsman and the Press Councils that existed before that body was established have never received any complaint against the print media involving the representation of child pornography or child abuse, even in the extremely broad context visualised in this legislation -- until a complaint was raised about a recent publication in a Cape newspaper.

As far as we are aware the same situation applies to the broadcast media in regard to news services. It should be noted that this also applies since 1994 to the other offences that are listed.

This, of course, raises the question why the news media should now have their exemptions cancelled to enable them to be brought under the dictates of the board when there has been no record of these offences being perpetrated by them.

Our view is that the proposal to remove the exemption enjoyed by the news media will have a seriously harmful effect on the news media and the public. It will destroy SA's reputation as the home of a free and independent media --one of the few in Africa -- and could cause badly needed investors to stay away.

In summary this is our objection to the removal of the exemption:

* It introduces pre-publication censorship which conflicts with the letter and spirit of the Constitution (Section 16);
* It will have a chilling effect on journalists gathering and conveying the news of the day because they will fear that some of the articles and reports that they are producing could be subject to pre-publication censorship;
* Or worse that their material could be published without reference to the requirements of the proposed Films and Publications Act and, specifically, the classification committees of the Films and Publications Boards, be deemed to be an offence and result in editors and journalists being prosecuted and punished with imprisonment or a fine or both;
* It will impose enormous strains on the production and distribution processes involved in the publication of news material by both the print and broadcast media as well as the online media.

As journalists we regard Section 16 of the Constitution not merely as a right to be exercised at will, but as imposing a duty in terms of clause 8 (2) of the Bill of Rights which states that ``a provision of he Bill of Rights binds a natural or juristic person if, and to the extent that, it is applicable taking into account the nature of the right and the nature of any duty imposed by the right''.

Accordingly, we regard the provisions we have drawn attention to as not only interfering with the practicalities of news gathering and dissemination but as forcing journalists to be in breach of our Constitutional obligations.

We also suggest that the state servants engaged in the preparation of this Bill and its implementation may be offending against clauses 7 and 8 in the Constitution in that they may be accused of failing to respect, protect and promote media freedom and thus failing to fulfill that right.

Other concerns that we have are:
The broad description of offences including the vagueness of the language used will result in uncertainty in trying to comply. A striking example of this is contained in the Objects of the Act -- 2 -- where one of the objects is stated to be to protect children from potentially ``disturbing, harmful or age- inappropriate materials''. This is so broad and vague a requirement that it can include an extraordinary wide range of possible offences which could include political material.

It is noted that the age of 18 is the threshold for youths to be able to see or possess material about sexual conduct without prosecution. It is
uncertain why this age has been chosen when it is permissible for people to marry at the age of 16.

We note in the Bill's clause 16 (2) that the ``advocacy of hatred'' clause is much wider than that contained in the Constitution.

There is a potential for media harassment in clause 16 (1) -- Any person may request, in the prescribed manner, that a publication being distributed in the Republic be classified in terms of this section. This places the media into an ``Aunt Sally'' situation, the victims of the real or imagined complaints that are attracted by every edition of a paper or broadcast.

Section 24 B (2) introduces a new offence in our law, requiring anyone who knows of, suspects or has reason to suspect, the commission of an offence under section 24 B (1) to furnish the police with a full report of such knowledge or suspicion. It also potentially violates constitutional rights and the general principle in criminal law requiring intention, as well as a sufficient causal nexus between an act and the socially repugnant consequence. The subsection embraces wider considerations than the existing common law offences of common purpose, conspiracy and defeating the ends of justice. We are concerned that ``innocent bystanders'' could be compelled to act as ``spies'' on others.

This subsection is even more dangerous for journalists. It could result in journalists being forced to reveal confidential sources of information related to the commission of an offence. This, as journalists have steadfastly argued, could severely undermine the media and diminish its ability to develop confidential news and information sources and gather news. In particular, it could deter sources from confiding in journalists for fear of being exposed. This undermines public confidence in the media and restricts journalists' newsgathering ability. Indeed, we claim that Section 24 B (5) would be unconstitutional in so far as it imposes a reverse onus on the accused. The subsection removes the element of intention vital to most criminal offences.

Should this Bill become law, it will render to a large extent the work of the Press Ombudsman and the Broadcasting Complaints Commission redundant and to some extent Icasa (Independent Communications Authority of SA) as well. The interference with the duties of Icasa, we contend, would be a serious offence against the Constitution (Clause 192).

These mechanisms were set up to adjudicate on the ethical and professional content of news media and have in the last few years built up excellent reputations for responding to complaints from the public and conducting their duties diligently.

An unintended consequence of this legislation could be its impact on the assessment of South Africa's conduct of ``good governance'' under the African Union's African Peer Review Mechanism, the process which South Africa has undergone in the last 15 months. The question that could be asked is how the APRM secretariat and the eminent persons group which oversees the APRM process, apart from the heads of state, would regard pre-publication censorship and all the other defects in this legislation in relation to their assessment of South Africa's ``good governance''. We suggest that they may
regard the country as seriously wanting.

These representations are to be read with those of the SA National Editors' Forum, the Freedom of Expression Institute, Print Media South Africa, and the National Association of Broadcasters all of which include material which we regard as relevant.

We also request note to be taken of the fact that our comments are supported by the Media Monitoring Group of Johannesburg, the Publishers' Association of South Africa, SA PEN (Poets, Essayists, Editors and Novelists). Several of the provisions affect authors and writers in the same way as journalists though the matter of urgency is not as severe.

We thank the portfolio committee for this opportunity to express our views.