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.