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 (Butler vs. Michigan), and likened it to 'burning down the house to roast the pig'.

 

South Africa sets great store by freedom of expression and its Constitution, regarded as among the finest in the world, stresses transparency in governance, consultation, open institutions and above all freedom of expression, freedom of the media and access to information in addition to other freedoms. The centrality of freedom of expression is recognized in these other international protocols:

* 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.

 

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 South Africa's reputation as the home of a free and independent media and could cause badly needed investors to stay away. The compounding effect will be for SA to become less and less free with the poor bearing the brunt of the authoritarian rule that will emerge.

 

We thank the Select Committee on Social Services, National Council of Provinces, for the opportunity to have made these representations.

 

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