African National Congress Submission
Proposed
amendments to Films and Publications Amendment Bill [B27 -2006]
1.Clause 1 of
the Bill (section 1 of the Act) Definitions
(a) The definition of 'child abuse' should be deleted.
(b) The definition of 'child pornography' should be amended to read as
follows: "'child pornography' includes any image, however created, or any
description of a person, real or simulated, who is, or who is depicted, made
to appear, look like, represented or described as being under the age of 18
years -
(a) engaged in sexual conduct;
(b) participating in, or assisting another person to participate in,
sexual conduct; or
(c) showing or describing the body, or parts of the body, of such a
person in a manner or in circumstances which, within context, amounts to sexual
exploitation, or in such a manner that it is capable of being used for the purposes
of sexual exploitation;"
(c) The definition of 'Council' should be inserted to read as follows:
"'Council' means the Council established in terms of
section 3;"
(d) A definition should be inserted for the term 'explicit sexual conduct' to
read as follows:
"'explicit sexual conduct' means, for purposes of sections 16 and 18 of
the Act, graphic and detailed visual presentations or descriptions of any
conduct characteristically associated with sex;"
(e) The definition of 'film' should be amended to read as follows:
"'film' means any sequence of visual images recorded in such a
manner that by using such recording such images will be capable of being seen
as a moving picture, and includes any picture intended for exhibition through
any medium or device;"
(f) The definition of 'interactive computer game' should be amended to read as follows:
"'game' means a computer game, video game or other interactive
computer software for interactive game playing, where the results achieved at
various stages of the game are determined in response to the decision, inputs
and direct involvement of the game player or players;"
(g) A definition should be inserted for 'identifiable group characteristic' to
read as follows:
"'identifiable group characteristic' means a characteristic that
identifies an individual as a member of a group identified by race, gender, sex,
pregnancy, marital status, ethnic or social origin, colour, sexual orientation,
age, disability, religion, conscience, belief, culture, language, birth and
nationality;"
(h) A definition of 'newspaper' should be inserted to read as follows:
"'newspaper' includes an on-line publication of a newspaper;"
(i) A definition of 'prescribed' should be inserted to read as follows:
"'prescribed' means prescribed by regulation;"
(j) Paragraph (e) in the definition of 'publication' in the Act should
be amended to read as follows:
"(e) any record, magnetic tape, sound-track or any other object in
or on which sound has been recorded for reproduction;"
2. Clause 2 of the Bill (section 2 of the Act) - Objects of Act
Clause 2 of the Bill (section 2 of the Act) should be amended to read as
follows:
"Objects of Act
2. The objects of this Act shall be to regulate the creation, production,
possession and distribution of films, games and certain publications to -
(a)provide consumer advice to enable adults to make informed viewing,
reading and gaming choices, both for themselves and for children in their care;
(b) protect children from exposure to disturbing and harmful materials
and from pre-mature exposure to adult experiences; and
(c) make the use of children in, and exposure to,
pornography punishable."
3. New clause to be inserted in the Bill section 3 of the Act -
Establishment of Film and Publication Board Council and Appeal Tribunal
It is proposed that the current section 3 of the Act be amended to read as
follows:
"Establishment of Film and Publication Board, Council and Appeal
Tribunal
3. (1) There is hereby established -
(a) a juristic person which shall be known as the Film and
Publication Board; (b) the Council; and
(c) an Appeal Tribunal,
which shall perform the functions, exercise the powers and carry out the
duties, assigned to, conferred on or imposed upon them in terms of this Act.
(2) The Board and the Appeal Tribunal shall be independent and function
without any bias.
(3) The seat of the Board shall be determined by the Council in consultation
with the Minister."
(4) Clause 3 of the Bill (section 4 of the Act) - Composition of Council
It is proposed that the current clause 3 of the Bill (section 4 of the Act) be
substituted for the following clause:
"Composition of Council
4. (1) The Council shall consist of -
(a) a chairperson and a deputy chairperson appointed by
the Minister;
(b) such number of members, not exceeding seven, as the Minister may
appoint having regard to the need to ensure that the membership of the Council
is broadly representative of the South African community and relevant
stakeholders; and
(c) the chief executive officer appointed by the Council in consultation
with the Minister."
(a) In the absence of the chairperson the deputy chairperson shall act as chairperson.
(b) In the absence of the chairperson and the deputy chairperson at a
meeting, the Council shall elect one of the members to act as the chairperson
of that meeting.
(3) Decisions of the Council shall be taken by a majority of votes, and in the
case of an equality of votes, the chairperson of the meeting shall have the
casting vote.
(4) The majority of the Council shall constitute a quorum at a meeting of the
Council."
5. Clause 4 of the Bill (newly inserted section 4A of the Act) - Powers and
duties of Council
It is proposed that clause 4 of the Bill (section 4A of the Act) be substituted
for the following clause:
"Powers and duties of Council
4A. (1) The Council shall
in consultation with the Minister, issue directives of general application,
including classification guidelines, in accordance with matters of national
policy consistent with the purpose of this Act;
(b) determine and issue a Code of Conduct for members of the Council;
(c) in consultation with the Minister, appoint the chief executive
officer;
(d) in consultation with the Minister, determine the qualifications,
experience and terms and conditions of employment of classifiers;
(e) appoint such number of classifiers that comply with the determination contemplated
in paragraph (d), as may be required, having regard to the likely volume
of applications and submissions that will be made in terms of this Act;
(f) review, at least four times a year, the functioning of the Board to
ensure that the objectives of the Act are implemented efficiently and that the
Board discharges its obligations and responsibilities in accordance with this
Act or any other law; and
(g) exercise and perform such other functions, powers and duties as are
conferred or imposed on the Council by or under this Act or any other law.
(2) When making an appointment in terms of subsection (1 ) (e), the
Council shall have regard to the person's personal attributes, integrity,
qualifications, knowledge and experience in the different aspects of matters
likely to come before the Board.
(3) When making an appointment in terms of subsection (1 ) (e), the
Council shall ensure broad representation of the South African community in
terms of race, ethnicity, gender and religion and may invite the public to
nominate candidates suitable for appointment as classifiers.
(4) Meetings of the Council shall be convened by the chairperson and shall be
held at the premises of the Board, unless, for bona fide reasons, the
chairperson directs that a meeting be held at another venue,".
6. Clause 10 of the Bill (section 9A of the Act) Composition, functions, powers
and management of classification office
It is proposed that clause 10 of the Bill (section 9A of the Act) be
substituted for the following clause:
"Composition, functions, powers and management of Board
9A. (1) The Board shall consist of the chief executive officer
and such number of officers as determined by the Council.
(2) The functions of the Board shall be to
(a) appoint classification committees to examine and determine, in accordance
with any classification guidelines established by the Council, the classification
of any film, game or publication submitted to the Board under this Act;
(b) determine an application made under sections 22 and 23 of this Act
for an exemption from any provision of this Act in respect of any film, game or
publication; and
(c) determine an application made under section 18(1) for registration
as a distributor or exhibitor of films, interactive computer games or
publications.
(3) The chief executive officer shall be responsible for all matters relating
to the administration and management of the Board, including
(a) the appointment of administrative staff;
(b) the appointment of compliance officers;
(c) the submission to the Council of the quarterly
reports contemplated in section 4A(1 )(f); and
(d) the submission of the annual report and financial statements contemplated
in section 55 of the Public Finance Management Act, 1999 (Act No. 1 of 1999)
and relevant Treasury Regulations."
(4) The chief executive officer may delegate any power conferred on him or
her."
7. Clause 11 of the Bill (section 10 of the Act) - Classification Committees
It is proposed that clause 11 of the Bill (section 10(1) of the Act) be amended
to read as follows:
"(1) The Board shall appoint classification committees as may be prescribed."
8. Clause 13 of the Bill (newly inserted section 15A of the Act) - Functions
and powers of compliance officers
It is proposed that clause 13 of the Bill (section 15A of the Act) should be
substituted for the following clause:
"Functions and powers of compliance officers
15A. (1) A compliance officer may, for the purpose of achieving the objects of
this Act and of
advising distributors and exhibitors of films and games of the requirements of
this Act with regard to the distribution or exhibition of films and games; and
(b) ensuring that all films and games offered for sale or hire by a
distributor have been classified in terms of this Act and that all such films
and games display, in the prescribed manner, the classification reference
number, the age restriction, consumer advice and such other conditions as may
have been imposed on the distribution of such films and games by the Board,
enter any premises on or in which the business of the sale, hire or exhibition
of films or games is being conducted, and -
(i) request the production of a certificate of registration as a distributor or
exhibitor of films or games issued by the Board and, where relevant, a licence
to conduct the business of adult premises issued by a licensing authority as
contemplated in section 24 of this Act;
(ii) examine or inspect any premises being used to conduct the business of
adult premises for compliance with the conditions contemplated in section 24(2)
of this Act;
(iii) examine or inspect any film or games being offered for sale or hire for
compliance with the requirements of this Act with regard to the distribution of
that film or game; and
(iv) advise that films, games and publications being offered for sale or hire
that do not comply either with the requirements of this Act or any decision of
the Board with regard to the distribution of that film, game or publication be
removed from any display or offer for sale or hire until such products comply
with the requirements of this Act or any decision of the Board with regard to
their distribution.
(2) When performing any function in terms of this section, a compliance officer
may request and use the assistance of a police official of the South African
Police Services.".
9. Clause 14 of the Bill (section 16 of the Act) - Classification of
publications
It is proposed that clause 14 of the Bill (Section 16(2) of the Act) be amended
to read as follows:
"(2) Any person, except the publisher of a newspaper, who, for distribution
or exhibition in the Republic creates, produces, publishes or advertises any
publication that contains visual presentations, descriptions or representations
of or amounting to
sexual conduct;
propaganda for war;
incitement to imminent violence; or
the advocacy of hatred based on any identifiable group
characteristic,
shall submit in the prescribed manner such publication for examination and
classification to the Board before such publication is distributed, exhibited,
offered or advertised for distribution or exhibition."
1O. Clause 18 of the Bill (section 19 of the Act)
It is proposed that clause 18 of the Bill should be deleted in order to
re-instate section 19 of the Act.
11. Clause 21 of the Bill (section 22 of the Act) Exemption of persons
from certain sections, and exclusions from application of this Act
It is proposed that the removal of the exemption in section 22(3) of the
Act remains and that newspapers be exempted from classification in section
16(2) of the Act (see paragraph 9 above).
12. Clause 24 (section 24 of the Act) Offences
(a) It is proposed that clause 24 of the Bill (newly inserted sections
24A(2) and 24A(3) of the Act) be amended to read as follows:
"(2) Any person who knowingly broadcasts, distributes, exhibits in public,
offers for sale or hire or advertises for exhibition, sale or hire any film,
game or a publication referred to in section 16(2) of this Act which has
(a) except with respect to broadcasters. not been classified by
the Board;
(b) been classified as a "refused classification"; or
(c) been classified as XX. or would have been so classified had it been
submitted for classification,
shall be guilty of an offence and liable, upon conviction, to a fine or to
imprisonment for a period not exceeding five years or to both a fine and such
imprisonment.
(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 games, and who knowingly broadcasts, distributes,
exhibits in pubic, offers for exhibition, sale or hire or advertises for sale
or hire any film, game or a publication which has been classified XI8, or
would have been so classified had it been submitted for classification shall
be guilty of an offence and liable, upon conviction, to a
fine or to imprisonment for a period not exceeding five years or to both a fine
and such imprisonment.
(b) It is proposed that a new subsection (6) be inserted into section
248 of the Act, to read as follows:
"(6) Any person who processes, facilitates or attempts to process or facilitate
a financial transaction, knowing that such transaction will facilitate access
to, or the distribution or possession of, child pornography, shall be guilty of
an offence and liable, upon conviction, to a fine or to imprisonment for a
period not exceeding ten years or to both a fine and such imprisonment."
(c) It is proposed that the newly inserted "section" 24C be
substituted for the following section:
"Obligations of internet access and service providers
24C. (1) For the purposes of this section unless the context otherwise
indicates- '
(a) 'child-oriented service' means a contact service and includes
a content service which is specifically targeted at children and not at adults;
(b) 'contact service' means any service intended to enable
people previously unacquainted with each other to make initial contact and to
communicate with each other;
(c) 'content' means any sound, text, still picture, moving
picture, other audio visual representation or sensory representation and
includes any combination of the preceding which is capable of being created,
manipulated, stored, retrieved or communicated but excludes content contained
in private communications between consumers;
(d) 'content service' means
(i) the provision of content; or
(ii) the exercise of editorial control over the content
conveyed via a communications network, as defined in the Electronic
Communications Act,
2005 (Act No. 35 of 2005), to the public or sections of the public; and
(e) 'operator' means any person who provides a child-orientated
contact service or content service, including Internet chat-rooms