THE
FREEDOM OF EXPRESSION INSTITUTE (FXI)
REPRESENTATIONS ON THE FILMS AND
PUBLICATIONS AMENDMENT BILL (B27B-2006)
11 October 2007
1. Introduction
The Freedom of Expression Institute
(FXI) thanks the Select Committee on Social Services, National Council of
Provinces, for the opportunity to make its submissions on the Film and
Publications Amendment Bill. We have already made similar submissions to the
Parliamentary Portfolio Committee on Home Affairs. It should be noted that we
confine ourselves to dealing with our problems with the Bill, rather than with
aspects of the Bill that we may agree with, for the sake of brevity. It should
be noted that our main concerns are merely summarized, and the FXI shall
elaborate on these concerns at the public hearing on 16 October 2007.
The FXI notes at the outset that it
is opposed to child pornography, and supports efforts to stamp out such
pornography. Having said that, we also believe that the Bill is not simply
about the banning of child pornography, as it seeks to amend the Film and
Publications Act of 1996 in a manner that is far broader than this objective.
In fact, if the Bill goes through in its current form, the FXI believes that a
wide range of material will be banned or restricted. The FXI is especially
concerned about the potential to ban or restrict political speech, and many of
our comments will be directed at ensuring that this does not happen.
The FXI is of the view that less restrictive means can be
used to achieve the main objective, namely to protect children from harmful
content, and to outlaw child pornography. Numerous self-regulatory instruments
are available, that are not considered in terms of the Bill. If the instruments
are not working well, then they need to be fixed, rather than declaring the
whole system of self-regulation null and void. In addition, there are many
filters that parents can use to protect their children from explicit material,
with the state being obliged to intervene only in the most extreme
circumstances (such as child pornography). The underlying principle is that the
State does not have the right to decide what its citizens should hear, see or
read.
The Bill does not reflect these principles. Rather it seems
to adopt an approach of classifying and possibly even restricting access to all
sexually explicit material with the objective of protecting children. All
material relating to sexual content and controversial forms of expression
(including political speech) will be subject to scrutiny by what is effectively
a government institution. This is inappropriate and will lead to pre-publication
censorship being introduced in relation to large amounts of material, which a
government institution deciding whether such material can be made available,
and if so, under what circumstances. The classification criteria have been
broadened to include a far broader range of materials than was the case in the
1996 Act, most worryingly the XX classification (which effectively amounts to a
ban).
These provisions are censorious in the extreme; they cannot
be passed off merely as innocent classification. In fact we believe that the
Film and Publication Board risks mutating from a classification body to a
censorship body. We believe one of the basic tenets of freedom of expression to
be that the state may not restrict materials for adults simply because children
also would see it. In fact in 1957, the United States Supreme Court declared
this approach inappropriate (
* 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
* The
* The European Convention on Human
Rights.
In reviewing the proposed amendments
to the Films and Publications Act of 1996, we find ourselves confronted by a number
of features which we contend offend against the letter and the spirit of the
South African Constitution. Indeed we do not believe that the Bill recognizes
the centrality of the right to freedom of expression.
In making this submission, we will
also make reference to earlier amendments to the Act that took place in 1999
and 2004. We believe that when combined with the 2006 proposed amendments, the
cumulative effect of all the amendments will lead to a significant erosion of
the right to freedom of expression.
Below is a summary of our problems
with the Bill:
2. Objectives
Since the Act was promulgated in
1996, the objectives of the Board have expanded greatly. In terms of the 1996
Act, the original objective of the Board was to regulate the distribution of
certain publications, the exhibition and distribution of certain films, in the
main by means of classification, the imposition of age restrictions and the
giving of consumer advice. The objects also state that due regard has to be
given to fundamental rights in the Constitution. This narrowly construed
objective recognized the fact that the objective of the Board was to set
distribution standards for films and publications, and not to tamper with the
creation or possession of material. To do so would lead to the criminalization
of creativity and also would create the possibility of search and seizure
operations being mounted on peoples' homes to seize objectionable material.
The 1996 Act also recognized the
fact that pornography should be legalized, as adults should have a democratic
right to access pornography should they so wish. The Board would merely
regulate access to pornography - rather than banning it outright (as had been
the case with the Act's predecessor, the Publications Act of 1974) - to ensure
that those who felt offended by pornography and who did not want to access to
pornography would not be assaulted by such material in every corner café. In
fact it is our understanding that the whole basis of the 1974 Act - based as it
was on wide-ranging banning of materials considered indecent, obscene and
offensive to public morals - was rejected as archaic and not in keeping with
the new Constitutional order. In terms of the 1996 Act, a system of
classification rather than censorship would obtain, with only the narrowest
range of materials being restricted for distribution. Harm rather than morality
would be the basis on which decisions would be made; so the prevention of harm
would be the basis of content regulation, not the protection of morality.
This paradigm shift took place to
remove the element of subjectivity from the regulation of films and
publications, where arbitrary and often politically loaded judgments would be
made about what morality, indecency and offensiveness meant. In the past, the
apartheid regime imposed a system of film and publications censorship premised
on the ideology of Christian Nationalism, which informed its decisions about
what it chose to censor. The Film and Publications Act of 1996 was drafted at a
time when apartheid was being dismantled, and when internationally,
jurisprudence was turning away from subjective terms like indecency and
morality as tests for films and publications control. Rather the
internationally recognized standard became the harms test. This shift from a
subjective to an objective test informed the 1996 Act. We fear that there is
now an attempt to re-introduce morality as the test for film and publications
control, which we believe to be entirely inappropriate, and in fact,
unconstitutional.
This shift is reflected (albeit in
an unstated fashion) in the broadening of the objectives of the Bill. The
objectives of the 1996 Act were amended in 1999, leading to the objects of the
Act being to '…regulate the creation, production, possession and distribution
of certain publications and films through classification, the imposition of age
restrictions and the giving of consumer advice'. It should be noted that it was
never the intention of the original Act to regulate creation and possession,
merely distribution.
The 2006 amendments also bring
interactive computer games and mobile phones under the purview of the Act. It
is questionable that the Board should deal with mobile phone content; rather
Icasa should deal with regulation of such content.
Also, in these amendments the word
'exploitative' has been removed from the object relating to the use of children
in pornographic material; so even if the use of children is not exploitative,
such material could be punished. This opens the door to pornographic material
being banned even if the use of children was incidental to the actual
pornographic content. The word should be reinserted to prevent such problems
occurring.
The second object of the Act
purports to protect children from potentially “disturbing and harmful materials
and from premature exposure to adult experiences”. This is so broad and vague a
requirement that it encompasses an extraordinary wide range of possible
offences. It appears moreover that even the Board is uncertain of what it means
by this phraseology.
3. Composition of Film and
Publications Board
It is extremely unfortunate that a
decision was taken in 1999 to downgrade the independence of the Board, and the
FXI is of the opinion that this retrogressive step needs to be reversed, and
the independence of the Board should be reinstated. Given the fact that the
Board classifies content, it should be independent of the government of the
day, to remove the possibility of the government using the Board to censor
content.
In terms of the 1996 Act, the
President appointed an advisory panel to advise him on whom to appoint to the
Board and Review Board. The panel would then invite public nominations to
ensure openness and transparency in the selection procedure. This was an
obligatory procedure. The 1999 amendment changed the appointment procedure,
giving the Minister the powers to appoint the Boards. Also, the Minister or the
advisory Board, may invite members of the public to propose members, so this
power is discretionary. Openness and transparency were removed as criteria for
the appointment process.
It is the FXI's view that the
original provisions around the appointment and dismissal of the two Boards
should be reinstated.
4. Classification system
S 29 of the 1996 Act criminalizes the distribution of
publications which amount to propaganda for war, incitement to imminent
violence, and advocacy of hatred based on race, ethnicity, gender or religion,
and which constitutes incitement to cause harm. These are the forms of expression
that do not receive protection in terms of s 16 (2) of the Constitution.
However, this section also includes exemptions for bona fide scientific,
documentary, dramatic, artistic, literary or religious publications or films,
or materials that amount to a bona fide discussion, argument or opinion
relating to religion, belief or conscience, or that is on a matter of public
interest.
It is disturbing to note that the 2006 Bill removes the
exemption for publications, films which amount to a bona fide discussion,
argument or opinion on a matter relating to religion, belief or conscience. In
terms of the 2006 Amendments, a publication must have scientific or literary
merit and must be on a matter of public interest for it to be exempted from the
hate speech provision. This narrows the grounds for exemption contained in the
1996 Act, that make provision for discussions, arguments or opinions that have
no literary or scientific merit - but that are bona fide expressions of
religion, belief or conscience - to be allowed, even if they constitute hate
speech.
The original Act made a clear
distinction between publications and films. The former would generally not be
classified unless a complaint was received from a member of the public, while
all films had to be submitted for classification. The rationale for this
distinction was based on the view that the written word generally contained
inherent literary merit and therefore is unlikely to fall foul of the Act's
censorship provisions; so, in classification terms, publications should be
'innocent until proven guilty'. Films on the other hand, because of their
pervasiveness, should be pre-classified.
According to the Bill,
creators and publishers must submit materials for classification if they
contain presentations or even descriptions of (or amounting to) sexual conduct,
propaganda for war, incitement to imminent violence or the advocacy of hatred
based on any identifiable group characteristic and that constitutes incitement
to cause harm. This requirement is so censorious, it is laughable. It
introduces pre-publication censorship in relation to most forms of
controversial expression, and amounts to seeking a licence to create or
publish.
In terms of the Bill, all material that falls foul of the
offending classifications will have to be submitted for classification. This
includes any publication that contains visual presentations, descriptions or
representations of the offending material. This provision throws out the whole
principle underlying regulation of written material, namely that regulation
should operate only once a complaint has been received, dealt with and found to
be valid. So publishers will no longer have to wait for publications to be
complained about; they will be required to police themselves and submit
material for classification. Also people will need to submit material even if
they have created it for their own consumption, with no intention of
distributing it. This is tantamount to a thought crime.
This classification system means that any material relating to sexual conduct
must be submitted for consideration. Potentially, this requirement could
include magazines containing articles on how to improve your sex life, which
could cover any publication from Cosmopolitan to FHM and Your Baby. Literature containing
descriptions of sex, which could include anything from D.H. Lawrence novels to
Andrea Dworkin's writings critiquing pornography, would have to be submitted by
book distributors, even if they land up being exempted on literary grounds
afterwards. This requirement is unworkable. This provision appears to consider
all expressions of a sexual nature as suspect, requiring state scrutiny by the
morality police. It is not the business of the state to legislate people's
morality.
Then there are the provisions restricting the distribution
and possession and films and publications. The Bill introduces an entirely new
classification called 'refused publications'. The XX category is draconian, as
the grounds for outright censorship have been greatly expanded. These include
publications that contain explicit sexual conduct that violate or show
disrespect for the right to human dignity of any person, or conduct or an act
that is degrading to human beings, or conduct or an act, which constitutes
incitement to or encourages or promotes harmful behavior. If material in the XX
category is a documentary or is a publication of scientific, literary or
artistic merit, then it would be classified as X18 and confined to adult shops.
Also, all material containing explicit sexual conduct must go into adult shops.
On the surface, these provisions may seem reasonable, but
think deeply about them and their arbitrariness becomes apparent. Does this
mean that Karl Marx's Communist Manifesto, which advocates the overthrow of
capitalism (harmful behavior), will be available in adult shops only? What will
happen to the militant forms of expression that are becoming increasingly
apparent on the streets of South Africa, such as the pamphlet handed to the
Buffalo City Municipality recently by disgruntled ANC members threatening to
make the country ungovernable if service delivery was not improved?. Political
speech will be under severe threat if these amendments go through.
In terms of the Bill, the classification office may draft
classification guidelines that impose conditions on the possession of material.
This clause raises the spectre of the morality police mounting search and
seizure operations on people's homes.
The 1996 Act recognized that adults have a democratic right
to access pornography, should they so wish, with only hard core porn being
confined to adult shops. In terms of the Bill, all pornography - whether
hard or soft core - could be banned, as it is likely to fall into the XX
category. While it has been argued that much pornography sexualizes inequality,
the Bill ignores the strong arguments (even within the feminist movement) that
censorship is not the answer, and may well backlash on women in the long run.
We believe that the original classification guidelines should
remain as is, as the Department of Home Affairs has not made a compelling case
for why they should change.
5. Right to appear, and to appeal to Review Board and
Supreme Court
The FXI is troubled by the proposed repeal of s.21 of the
1996 Act. In terms of the original Act, any person who applies for the
classification of a film, or for a permit, exemption or license, or who stands
to be affected by a decision of the Board, had the right to appear in person
before the various committees, or to be represented by a lawyer or another
representative. If an appeal fails at the level of the Review Board, then the
matter can be referred to Court. If this section is repealed, then the right of
people affected by the Board's decisions to administrative justice will be
adversely affected. This section should therefore remain.
6. Miscellaneous provisions
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 the offence under section 24 B (1) to furnish the
police with a full report of such knowledge or suspicion.
This section reads as follows:
"(2) Any person who, having knowledge of the commission of any offence
under subsection (1) or having reason to suspect that such an offence has been
or is being committed, and fails to--
(a) report such knowledge or suspicion as soon as possible to an
official [sic] any South African law enforcement agency; or
(b) furnish, at the request of an official of any South African law
enforcement agency, all particulars of such knowledge or suspicion,
shall be guilty of an offence and
liable, upon conviction, to be sentenced to a fine or to imprisonment for a
period not exceeding ten years or both to a fine and such imprisonment".
Section 24 B (2) potentially
violates the constitutional rights of expression, association and movement,
unjustifiably so. The subsection violates 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 goes much further
than the existing common law offences of common purpose, conspiracy and
defeating the ends of justice, which require a close association between the
act/omission and consequence. As a matter of policy, the subsection could
result in severe injustice for innocent bystanders, who would be compelled to
act as spies on others, replacing the function of the police with a nation of
snoops.
For example, the person who
overhears a conversation that at an unnamed place DVDs containing child
pornography are sold will be prosecuted, even though she had nothing to do with
the offence in question.
As for journalists, this subsection
is even more dangerous. Forcing journalists to reveal their confidential sources
of information related to the commission of an offence would severely undermine
the media and would diminish the media's ability to develop other sources and
gather news. In particular, it would deter other sources from confiding in
journalists for fear of being exposed and thus have a chilling effect on
journalists. It would result in a perceived loss of independence for the media
because the public may perceive the media as an investigative tool of the
litigants instead of a neutral entity.
This undermines public confidence in
the media and restricts journalists' newsgathering ability. It would place a
burden on the time and resources available to media organizations by bogging
down reporters and editors in dealing with court challenges, thus affecting the
ability of the news organization to carry out their prime function of gathering
and disseminating news efficiently. This is particularly the case for small,
independent media organizations that have minimal resources. It would amount to
an unacceptable intrusion into the editorial process of the media because the
prospect of a subpoena may inhibit the media from newsgathering or
disseminating news.
Rather than risk being subpoenaed to
reveal source, a journalist or newspaper may decide not to publish information.
It may, in certain circumstances, threaten the safety and well-being of
journalists and their sources. In particular, sources who provide information
on condition of confidentiality may face harassment, prejudice or retaliation
or even threats to their lives if their identity is disclosed.
Section 24 B (5) would also be
unconstitutional in so far as it imposes a reverse onus on the accused. It
reads as follows: “(5) It shall not be a defence to a charge under subsection
(4) that the accused believed that the person was older than 18 years unless
the accused took reasonable steps to ascertain the age of that person.”
The subsection removes the element
of intention vital to most criminal offences, the most analogous being that of
statutory rape. It is a complete defense to a charge of statutory rape that the
accused was not aware that the complainant was younger than 16 years of age.
Similarly, it should be a defense to a charge under subsection (4) that the
accused reasonably believed that the person was older than 18 years.
The requirement in the present
subsection would impose a duty impossible to fulfill on, for example, the user
of an Internet “adults only'' anonymous chat website. What “reasonable steps''
could the remote user possibly take to “ascertain the age of that person beyond
the assumption that other users are similarly adult''?
7. Conclusion
Should this Bill become law, it will
render to some extent the work of the Press Council redundant. The
self-regulatory mechanisms set up to adjudicate on the ethical and professional
content of news media have in the last few years built up excellent reputations
for conducting their duties diligently. This Bill will tarnish
We thank the Select Committee on
Social Services, National Council of Provinces, for the opportunity to have
made these representations.
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