Ms JM Masilo

The Chairperson,

Select Committee on Social Services,

Parliament of RSA,

P O Box 15,

Cape Town 8000

10 October 2007

Dear Ms Masilo,

1] The Centre for Constitutional Rights welcomes your committee’s initiative for further consultation and the opportunity to make written and oral submissions regarding the Films and Publications Amendment Bill (B27-2006). The Centre notes that public hearings will also be conducted on the 16 October 2007 but respectfully believes that its views are adequately covered in these written submissions and accordingly does not wish to take up your committee’s time with unnecessary oral submissions. Should your committee however seek clarity, we would be more than willing to supplement these written submissions with oral representations.

2] The Centre records that it previously made written submissions to the Portfolio Committee and is pleased to note that certain of the recommendations were taken into account, resulting in the present further amended Bill now under consideration.

3] At the outset the Centre wishes to record its support of the laudable and necessary aim of the Bill, which is to protect children from potentially disturbing, harmful or age-inappropriate material, and specifically from sexual exploitation or degradation in publications, films, interactive computer games and on the internet. However aspects of the further amended Bill do give rise to concern. In our respectful opinion certain provisions continue to fall foul of the Constitution and will not stand up to judicial scrutiny due to vagueness. In particular, the Centre is concerned with: the continued inclusion and regulation of certain of the media within the scope of the Bill; provisions impacting on the reach of material requiring pre-publication censorship; the vagueness of the definitions of such material and in particular the scope of the definition of so called hate-speech; and, the independence of the classifiers.

For ease of reference these provisions will be dealt with sequentially and not in seriatim. Reference is made to the sections in the Act.

4] Ad section 1:

4.1] Ad section 1(a):

The Centre welcomes the establishment of an Appeals Tribunal and the inclusion of its definition.

4.2] Ad section 1(c):

In line with the Centre’s abhorrence of any form of child pornography, the Centre supports the broadening of the definition of “child pornography”.

4.3] Ad section 1(i):

The broad definition of “identifiable group characteristic” on its own poses no problem as it mirrors the constitutionally prescribed prohibited grounds for discrimination. However, as the scope of so-called hate speech includes this broad range the characteristics should be limited to those grounds listed in section 16(2) of the Constitution, namely race, ethnicity, gender and religion.

4.4] Ad section 1(l):

The inclusion of on-line publication of newspapers within the definition is welcomed in so far as the exempted newspapers are concerned as the earlier pre-publication classification required made the immediate response so critical to the business of on-line news impossible.

5] Ad section 2:

The Centre welcomes the removal of the regulation of broadcasting as a stated object of the Act. Similarly, the Centre welcomes the deletion of the subjective qualifications of “potentially harmful” and “age inappropriate” material which are vague, defy consistent interpretation and overly broad.

6] Ad section 4A (2) (a):

The Centre welcomes the removal of the insistence on demographic representivity as a criterion for appointment of classifiers as it is the personal attributes, skills and specialized knowledge of classifiers which will ensure proper protection of all children.

7] Ad section 9:

Although the Bill refers to classification officers, their powers include the power to judge what should be banned outright, what should be approved for limited circulation and what can be freely published. Their role is thus in effect that of censor. Classification officers (censors) are appointed by the Board who in turn are appointed by the Minister of Home Affairs and paid by the Government. The Classification Office is thus no more than an agency of the Department of Home Affairs, which effectively means that the print media not excluded would be subject to the dictates of this agency. Inevitably this body will be inclined to support views that accord with those of the Government and will discourage the dissemination of critical information. Provision should be made to guarantee their independence, as is the case with the Board and Appeal Tribunal in terms of section 3(2).

8] Ad section 16:

8.1] The Centre welcomes the exclusion of certain media from the pre-classification process. However some 500 Tabloids are not members of the Newspaper Association of South Africa. These papers fulfill a vital role in disseminating critical information.

8.2] Subsection 2 of this section which makes it peremptory for creators, publishers, producers and advertisers to submit to the Board certain specified publications for pre-publication classification is of particular concern. The publications required to be submitted include those which contain “visual presentation, description or representations” of material covering sexual conduct, propaganda to war, incitement to imminent violence and the advocacy of hatred based on any identifiable group characteristic that constitutes incitement to cause harm. Whilst the Centre supports the notion of classification and, if needs be, censoring publications, especially as far as children are concerned, this sub-section, in its present form remains unconstitutional due to its limitation of freedom of expression, and is unconstitutionally overbroad.

8.3] The inclusion of certain of the print and electronic media within the Bill’s remit, directly impinges on their constitutionally guaranteed freedom. Section 16 of the Constitution guarantees freedom of expression and specifically refers to freedom of the press and media as a critical component of freedom of expression. One of the goals of freedom of expressions is to establish and maintain an open and democratic society, which is primarily made possible through the dissemination of information and diverse views by the media and the ability of citizens, as a result thereof, to fully participate in the running of their country. Freedom of expression thus lies at the heart of democracy and is a critical anchor of our constitutional democracy. This point was forcibly made by O’Regan J in Khumalo and Others v Holomisa 2002 (5) SA 401 at para 24 when she stated:

“In a democratic society, then, the mass media play a role of undeniable importance. They bear an obligation to provide citizens both with information and with a platform for the exchange of ideas which is crucial to the development of a democratic culture.”

8.4] The use of loosely phrased and ill-defined terms to describe material which has to be submitted for pre-publication classification will result in much of the content of daily news reports of these tabloids requiring pre-publication approval. Given that newspapers have tight deadlines to meet, the practical effect of this will be to either cause dissemination to be delayed, or will induce these newspapers to exclude certain material in order to meet deadlines and/or to avoid prosecution. Either way, the flow of information to the public will be directly hindered, particularly of the poorer segments of society, whose access to newspapers is often restricted to free or cheaper tabloids.

8.5] Apart from hindering the flow of information to the public, the wide and vague terms contained in sub-paragraph 2(a) will also create confusion and uncertainty within this industry as it would be extremely difficult, if not impossible to know beforehand what is included in the specified material. Thus for example, the phrase “propaganda for war” is broad enough to include news reporting of President Bush’s calls to invade Iraq, as also impassioned pleas by either the Israeli or Palestinian leaders to defend their territories. Likewise, coverage of rabble rousing electioneering could arguably fall within the meaning of the phrase “incitement to imminent violence”. Similarly, the term “sexual conduct” is so broad that even the average “agony aunt column” could conceivably fall within its scope.

8.6] Apart from the sub-section being vague and an unconstitutional limitation on the freedom of the media, it also infringes on constitutionally protected expression as it re-defines hate speech. The Constitution correctly does not protect hate speech. However section 16(2) of the Constitution defines hate speech as advocacy of hatred based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. The underpinning rationale for excluding the advocacy of hatred is an acknowledgement that it has the potential to violate the fundamental values of equality and human dignity. Two cumulative elements must therefore be present before an expression constitutes hate speech: it must advocate hatred on one of the listed grounds, and it must incite to cause harm. The Centre welcomes the inclusion of incitement to cause harm as a criterion. However by describing hate speech as the advocacy of hatred based on any identifiable group characteristic the range of groups covered is substantially broader than that excluded by the Constitution and material which would not come close to qualifying as hate speech will be included. The definition of hate-speech should be amended to accord with section 16(2) of the Constitution.

8.7] Whilst every right in the Bill of Rights may be limited in terms of the general formula contained in section 36 of the Constitution, which requires the reasonableness and justifiability of such limitation in a democratic context and requires that it be in proportion to the circumstances, this broadened limitation on freedom of expression is neither justifiable, reasonable nor proportionate to its purpose.

9] Ad section 18:

The comments contained in paragraph 8 regarding the use of broad and vague terms, and especially the broadened definition of hate speech apply equally to this section.

10] Ad sections 19 and 20:

The Centre welcomes the right of appeal and the prescribed procedures which will ensure just administrative action as prescribed by the Constitution.

11] Ad section 23(3):

The centre notes with approbation the exemption of Broadcasters who are subject to regulation by the Independent Communications Authority of South Africa.

12] Ad section 24(C):

The Centre welcomes the removal of the vague phrase “Internet Service Providers” and the imposition of obligations on the operators of child-orientated services. In addition the Centre welcomes the substitution of an obligatory obligation to provide all subscribers with filtering material software with an obligation, where technically feasible, with the ability to obtain the software at their expense.

13] Although the purpose of the Bill is to protect people under the age of 18 from sexual exploitation, the Bill in its present form still goes beyond its intended purpose. The Bill fetters the right of certain media and infringes the corollary right of adults to access material of their choice and effectively requires that not only sexually explicit material but also controversial views can only be accessed with State approval. It discards the carefully constructed balance between freedom of expression and the need to protect children contained in the existing Act. The pre-publication classification procedure envisaged, combined with the definitional over breadth and vagueness renders the Bill impractical and unconstitutional. Under all these circumstances it is hoped that the vague definitions will be redrafted so that they are capable of interpretation and constitutionally compliant, that all the media will continue to be excluded from its provisions.

Yours faithfully,

Adv N de Havilland.