Independent Communications Authority of
SUBMISSION TO THE HOME AFFAIRS PORTFOLIO COMMITTEE
THE PROPOSED AMENDMENTS TO THE FILMS AND PUBLICATIONS ACT 1996 (BY THE FILMS
AND PUBLICATIONS AMENDMENT BILL 2006)
1. INTRODUCTION
[1] The
Independent Communications Authority of South Africa (ICASA) expresses its
gratitude to the Home Affairs Portfolio Committee for the invitation to comment
on the Films and Publications Amendment Bill 2006. The Authority is pleased and
welcomes the opportunity to provide and share its comments and views on this
Bill.
[2] ICASA is the independent regulator for the South African electronic
communications, broadcasting services and the postal sector. It was established
in July 2000 in terms of the Independent Communications
Authority of South Africa Act No.13 of 2000. It took over the functions of two
previous regulators, the South African Telecommunications Regulatory Authority
(SATRA) and the Independent Broadcasting Authority (IBA). The two bodies were
merged into ICASA to facilitate effective regulation of telecommunications and
broadcasting and to accommodate the convergence of technologies.
[3] Since the present submission concerns broadcasting it is,
with respect, of importance to note that section 192 of the Constitution of the
[4] Parliament has granted ICASA the authority to make regulations in relation
to the content of broadcasts. Such regulations were issued in 2003 and replaced
the Schedule to the lBA Act 1993. These regulations
are
applicable to all licensed broadcasters. Persons who do not have licenses or
who are not deemed to be the holders of licenses, are
prohibited by the Electronic Communications Act 2005 to broadcast. The ICASA
monitors broadcasting and where there is a contravention of the Code or
conditions of a licensee, it takes the necessary steps to have the matter
brought before the Complaints and Compliance Committee of the ICASA or, where applicable,
the Broadcasting Complaints Commission of
seal the equipment and, where necessary, attach the equipment.
2. CONTEXT
[5] The submission of lCASA emanates from the premise
that prior to the dawn of the democratic South Africa, and before the enactment
of the Independent Broadcasting Authority (IBA) Act on 27 October 1993,
broadcasting was controlled by the then Minister of Home Affairs, Mr. Danie Schutte. When the IBA was
established, this portfolio was moved to the Ministry of Communications, which
also included a move to the Portfolio Committee Communications. The then
Department of Home Affairs, which was the licensing agency during the apartheid
era, ceased dealing with applications for broadcast licenses and regulating the
broadcasting sector. This function was then fully taken over by the IBA, now
ICASA. The IBA has, since 1994, successfully been licensing and regulating
broadcasting, which includes the content thereof.
3. SUBMISSION
[6] Any
intervention in broadcasting by the Films and Publications Board in terms of
the Films and Publications Act would, with respect, be constitutionally
incompatible. Only one organ of state is authorised by the Constitution to
regulate broadcasts and that is the Independent Communications Authority of
South Afri.ca. In terms of section 54 of the Electronic Communications Act, 36
of 2005 ("the ECA"), an independent disciplinary body set up for that
purpose by an association of licensed broadcasters may also be recognized by
the ICASA to have jurisdiction over, broadcasts of the members. This was done
in 1993, when the Broadcasting Complaints Commission ("BCCSA"), was
set up by the National Association of Broadcasters. The IBA approved the BCCSA
in 1995. The BCCSA is an independent judicial body within the ambit of section
34 of the Constitution and its judgments bear witness to strict control and
fines, where appropriate. The Complaints and COTI1pliance Committee of ICASA
bas jurisdiction over content in regard to broadcasts by broadcasters who are
not members of the National Association of Broadcasters. It also has
jurisdiction as to other matters, such as competition and interconnection
disputes, complaints concerning non-compliance with licence conditions,
complaints during elections and complaints as to consumer issues in the sector
as well as the postal services.
[7] It was constitutionally (see section 192 of the Constitution) mandatory for
Parliament, by way of section 23(3) of the Films and Publications Act 1996, to
have exempted licensed broadcasters from the duty to have a film classified in
terms of the Films and Publications Act. Also that such a broadcaster would not
be subject to any classification made by the Films and Publications Board or
any condition imposed in relation to the exhibition of a film by the Board in
terms of section 18(4)(b) of the Films and Publications Act. When the Act was
drafted in 1994 and public hearings were held, the Task Group which held the
public hearings also conveyed to the National Association of Broadcasters, with
the agreement of the Minister of Home Affairs, that the Films and Publications
Act would not be applicable to broadcasters, as in the apartheid era.
[8] It must be added, so as to avoid any confusion that the section 23(3)
exemption does not mean that broadcasters may, for example, be in possession
of child pornography - even for purposes of a broadcast. It would have to
obtain permission from the Executive of the Films and Publications Board to be
in such possession.1 Once the material is, however, broadcast, the Films
and Publications Board has no constitutionally justified jurisdiction as to the
broadcast. The ICASA Code then takes over with its
sanctions.
[9] In the interests of consistency the ICASA has provided in the Broadcasting
Code that broadcasters may have regard to the classification and age
restriction imposed by the Films and Publication Board. The BCCSA has ruled
that when broadcasters do not apply the classification or the age restriction
imposed by the Board (and this would include age restrictions imposed Wder the 1963 and 1974 Acts) the broadcaster must, where a
complaint is considered, provide good reasons as to why the classification and
or age restriction was not applied. In practice, television broadcasters,
generally, increase the age restrictions and make the classification more
detailed than the classification of the Films and Publications Board.
[10] The 2006 Bill now proposes that the exemption mentioned in para [7] above be terminated. This would mean that all
television broadcast material would have to be classified by the Films and
Publications Board before the material is broadcast. This would include news,
advertisements, drama, science - in short all material broadcast, since the
word "film" in the Films and Publications Act would include all
televised material, unless exempted. Certain offences are also added in so far
as broadcasts are concerned.
[11] ICASA submits, with
respect, that the amendments are constitutionally incompatible. The subjection
of licensed broadcasters to the Films and Publications Act would breach at
least two fundamental rights: their right not to be subject to double jeopardy
and their right to be regulated solely by the ICASA. Double jeopardy would for
example be present where a licensed broadcaster is prosecuted for having
broadcast "child pornography" and the broadcaster is also brought
before the Complaints and Compliance Committee of ICASA or the BCCSA for that
broadcast. Clause 28 of the Code provides as follows:
1. Licensees shall not broadcast material, which judged within context,
contains a scene or scenes,
simulated or real of any of the following:
(i) A person who, or is depicted as being under the
age of 18 years, participating in, engaging in or assis~
person to engage in sexual conduct or a lewd display of
nudity;
(ii) Explicit violent sexual conduct;
(iii) Bestiality;
(iv) Explicit sexual conduct which degrades a person in the sense that it
advocates a particular form of hatred based on gender and which constitutes
incitement to cause harm.
2. Save for 28.(i) above, the
prohibition in 28. (ii) to 28 (iv) shall not be
applicable to bona fide scientific, documentary, dramatic material,
which judged within context, is of such nature. The prohibition in 28.(i) shall, however, be applicable
to artistic material which judged within context, is of such a nature.
This provision is, in fact, stricter than section 27 of the Films and
Publications Ac~ which has been held not to be applicable to art and has added
that the material must be explicit. The BCCSA has held that clause 28 is
applicable to both television and radio.
[12]The Broadcasting Code, the content of which has been entrusted to the ICASA
by Parliament in accordance with section 192 of the Constitution, sets out
rules as t() what may and may not be included in broadcast material and at what
times of the day certain materials may be broadcast. Any material of a more
explicit nature may only be screened after the watershed, which functions on a
sliding scale as from 21:00 to 05:00 for free-to-air broadcasters or from 20:00
to 05:00 for subscription broadcasters (which provide a parental block-out
mechanism). Films which are sexually more explicit, are screened as from just
before midnight to 05:00, when the watershed comes to an end. In practice no
films which fall in the category X18 (defined in Schedule 7 of the Films and
Publications Act) are screened on South African licensed television, in any
case.
SPECIFIC PROPOSALS
1. That the exemption for
licensed broadcasters in section 23(3) not be repealed.
Short motivation: See above
2. That the word "broadcasts"
be deleted from the following proposed section 24A(2):
Any person who .knowingly broadcasts, distributes, exhibits in public, offers
for sale or hire or advertises for exhibition, sale or hire any furn, interactive computer game or a publication referred
to in section
16(2) of this Act which has-
(a) not been classified by the Board;
(b) been classified as a "refused classification"; or
(c) been c1assi fled as XX,
shall be guilty of an offence and liable, upon conviction, to be sentenced to a
fine or to imprisonment for a period not exceeding five years or to both such
fine and imprisonment.
Short motivation: The ICASA
Broadcasting Code already takes care of what may be broadcast. The ICASA is the
regulator for broadcasting. No
other organ of state is constitutionally permitted to regulate broadcasting.
Pre-classification of broadcasts is explicitly prohibited by Parliament in
section 53(2) of the Electronic Communications Act 2005. Any deviation from
this sub-section by requiring classification of material before a broadcast, would be in conflict with the laudable principle,
inspired by the freedom of expression fundamental right that broadcasts should
not be subject to censorship. When film and video distributors were requested
by the 1994 Task Group whether they would wish to set up their own
classification mechanism, they indicated that they would rather submit to a
State pre-classification Broadcasters were not part of this group. In fact, they
were promised by the Task Group, on behalf of the Minister of Home Affairs,
that they would not be required to submit material to the new Board; in fact that
they would be exempted from the Films and Publications Act. This is, in any
case, also in accord with section 192 of the Constitution,
3. That the word "broadcasts"
be deleted from the following proposed section 24A (3):
24A(3) :Any person, not being the holder of a
licence to conduct the business of adult premises and not being registered with
the Board as a
. distributor or exhibitor of .films or interactive computer games, and who
knowingly broadcasts, distributes, exhibits in public, offers for exhibition,
sale or hire or advertises for sa1e or hire any film, interactive game or a
publication which has been classified XI8 shall be guilty of an offence and
liable, upon conviction, to be sentenced to a [me or to imprisonment for a
period not exceeding five years or to both a fine and such imprisonment.
-
Short motivation: This sub-section
authorises the Films and Publications Board to register a broadcaster, It also authorises a local authority (which issues licenses
to adult video shops) to license such a video shop owner to broadcast. Only
ICASA may license broadcasters - that is clear from the ICASA Act 2000, the
Electronic Communications Act 2005 and section 192 of the Constitution. If a
register of broadcasters is to be kept, such authority would, of necessity,
only vest in ICASA.
4. That the words "broadcasts"
and "broadcast" in the proposed section 24B (1)( d) be deleted :
The relevant part of the proposed section provides as follows:
24B(l)(d): Any person who knowingly makes available, exports, broadcasts or in
any way distributes or causes to be made available, exported, broadcast or
distributed or assists in making available, exporting, broadcasting or
distributing, any film, interactive computer game or publication which contains
depictions, descriptions or sequences of child pornography or the abuse of
children or which advocates, advertises, encourages or promotes child
pornography or the sexual exploitation of children shall be guilty of an
offen9C and liable, upon conviction, to be sentenced to imprisonment for a
period not exceeding ten years.
Short motivation: As stated above,
the Broadcasting Code in clause 28 already prohibits the broadcast of child
pornography. Although the definition of child pornography in clause 28 differs
from that of section 27 of the Films and Publications Act, it is in general
accord with the definition which Langa DP held to be
constitutionally valid in De Reuck v Director
of Public Prosecutions and Others.. Once again,4 in any case, it is for the ICASA to regulate
broadcasters.
5. In the light of the above, it is also
submitted that the word "broadcasting" in section 2(a) of the
proposed amendments be deleted.
Short motivation: There is only one regulator of broadcasting in terms
of section 192 of the Constitution and that is ICASA. It is, accordingly, constitutionally
incompatible to state that one of the aims of the Films and Publications Act is
to regulate broadcasting.
We thank the Committee for the opportunity to address it at a time allocated
by its Secretary.
Mr Paris Mashile
Chair of ICASA 26 April 2007