PRINT MEDIA
SUBMISSION
ON
THE FILMS AND PUBLICATIONS
AMENDMENT BILL
[B27B-2006]
introduction
1.1
These submissions on the second draft of the Films
and Publications Amendment Bill [B27B-2006] ("Bill") are made by Print Media South Africa ("PMSA"), an association not for
gain incorporated as a company in terms of section 21 of the Companies Act,
1973, to the National Council of Provinces ("NCOP").
1.3
PMSA would like to thank the NCOP for giving it the
opportunity to make this submission and records that it would like to also make
an oral submission on the Bill when public hearings are held by the NCOP in
respect of the Bill.
1.4
While PMSA has placed on record, in its first
submission, certain information relating to its background, membership and
objectives, it is worth reiterating that information in this submission as it
provides context to the substantive submissions which follow these introductory
remarks -
1.4.1
PMSA was formed to represent the interests of a
broad range of media publications, including daily, weekly and community
newspapers and consumer, trade, technical, professional and other specialist
magazines. As such, PMSA is
representative of almost all of the participants in the print media industry. Some of the members of PMSA are also members
of the Newspaper Association of South Africa ("NASA"), successor to the Newspaper Press Union, the
Association of Independent Publishers of South Africa ("AIP") and the Magazine Publishers Association of South
Africa ("MPASA").
1.4.2
MPASA was formed to represent the interests of a
broad range of magazine publishers, including general interest, business,
consumer, trade, technical, professional and other specialist magazines. MPASA's current membership represents
approximately 340 magazines printed in
1.4.3
AIP is southern
1.4.4
Through its constituent members, PMSA accordingly represents
about 334 newspapers and a fluctuating figure of 340 magazines printed and distributed
in
1.4.5
PMSA has a history going back many years. Under the name of the Newspaper Press Union,
it was involved in a constant debate with the apartheid government in the interests
of the freedom of the press. It has had
a long-standing agreement with government that the newspapers falling within
the ownership of its members would be exempt from the Publications and
Entertainment Act, 1963 succeeded by the Publications Act 42 of 1974 and
thereafter succeeded by the Films and Publications Act 65 of 1996 ("Films and Publications Act").
1.4.6
The arrangement with government was agreed to on
the basis that the press would set up its own Press Council and such Councils
have been functioning since 1962. In its
present form the Press Council of South Africa ("PCSA") has jurisdiction over more than 640 newspapers and
magazines which belong to the members of PMSA. One of the objects of the PCSA is to ensure
adherence to high standards in newspaper press reporting and for this purpose
the PCSA has adopted a Press Code of Conduct ("the Code") which is enforced by an independent non-statutory
mediating and adjudicating structure. This
structure consists of the South African Press Ombudsman ("SAPOM") and the South African
Press Appeals Panel ("SAPAP")
which is chaired by the Judge Ralph Zulman.
He sits on SAPAP with members of the public who have knowledge and
experience of relevant facets of South African society as well as representatives
of the press. The PCSA may order a newspaper
to correct mistakes and apologise for them in that newspaper. The mechanism has been effective and PMSA is
proud to say that its member newspapers have abided by the rulings of the PCSA
conscientiously.
1.4.7
Whilst PMSA is supportive of legislative endeavours
to protect children from exposure to child pornography and other age
inappropriate material, PMSA has grave concerns that certain provisions of the Bill,
even in its amended form, unjustifiably infringe upon the right to freedom of
expression protected by section 16 of the Constitution of the Republic of South
Africa Act 108 of 1996 ("the
Constitution"). In essence,
PMSA's primary concern is that certain provisions of the Bill, in seeking to
enforce the mandatory pre-publication classification of press material,
actually result in a prior restraint which has an unduly chilling effect on the
constitutionally entrenched right to freedom of expression.
1.4.8
The effects of the relevant provisions of the Bill
are far reaching and it is our submission that notwithstanding the exemption
provisions now provided for in the proposed section 16 of the Films and
Publications Act, all manner of legitimate publications will be materially and
adversely affected by the unduly chilling provisions of the Bill, including
mainstream newspapers, magazines, small and community newspapers and magazines
and foreign newspapers and magazines. Classification
for publications in terms of the Films and Publications Act has never been
mandatory save in instances where a complaint has been lodged by a third party.
We will argue in this submission that
the proposed provisions of the Bill which introduce mandatory pre-publication
classification for selected publications do not achieve their purported aims
and are unconstitutional.
1.4.9
These concerns underpin certain additional
objections that will be further articulated in this submission. For present purposes however, we record that
these additional concerns relate to the apparent limitation that the Bill has
placed on a PMSA member's right to take on appeal classification decisions of
the Films and Publications Board to the High Court, and the creation of certain
statutory offences which will serve only to inhibit the freedom of the press
currently enjoyed by PMSA's members. The
chilling effect of these criminal provisions will apply to all publications
regardless of whether they are subject to the exemption provisions of the
proposed section 16 or not and in fact render the proposed exemption in section
16 a nullity.
1.5
It is PMSA's contention that several of the
provisions of the Bill discussed in this submission are inconsistent with the
Constitution and hence would not survive a legal challenge in this respect.
1.6
PMSA accordingly, respectfully, submits that the
Bill should be further amended so as remove the offending provisions, prior to
the Bill's promulgation as an Act.
2.1
In part 3 of this submission, we consider the
proposed amendments to section 16 of the Films and Publications Act. These amendments are set forth in section 19
of the Bill. The objections raised in
this respect go to the fact that the exemption (afforded to publications which
are members of NASA) provided for in the proposed section 16(1) is insufficiently
wide, as deserving candidates for the exemption, such as publishers of non NASA
member newspapers, magazines, periodicals and other similar publications, are
excluded from the ambit of the exemption resulting in -
2.1.1
the exemption being arbitrary and unlawful in its
discrimination; and
2.1.2
an undue infringement on the constitutional right to
freedom of expression enjoyed by certain of PMSA's members who ought to be
subject to the exemption but are not.
2.2
In part 4 of this submission, we consider certain of
the statutory offences created in terms of the proposed sections 24A and 24B of
the Films and Publications Act. These
provisions appear in section 29 of the Bill. The application of certain of these provisions
to persons engaged in the business of reporting news and other items of
interest will be unduly restrictive on the activities of these parties and will
ultimately result in an undue suppression of the ability of journalists to procure
and maintain sources of information. Clearly,
the suppression of the freedom of the press in any material manner is counter
to the interests of a free and open democratic society.
2.3
In part 5 of this submission, we examine briefly
the proposed repeal of section 21 of the Films and Publications Act. This takes place in terms of section 25 of the
Bill. The effect of this proposed
amendment is that whereas persons subject to the provisions of the Films and
Publications Act previously had a statutorily entrenched right to take certain
decisions of the Review Board on appeal to the High Court, they are now
confined to taking such matters on appeal to the envisaged Appeal Board. The jurisdiction of the High Court in respect
of classification decisions thus seems limited in light of the proposed
amendments to a review function, which is a function materially different in
legal terms from an appeal function.
3
proposed amendments to section 16 of the films and
publications act
3.1
These amendments make provision for the
classification of publications by the Films and Publications Board in either of
the two instances -
3.1.1
where any third party requests that a publication[1] be classified, prior to publication; or
3.1.2
where the publisher[2] of the publication concerned intends to distribute
material or advertise any publication which contains visual presentations,
descriptions or representations of sexual conduct, propaganda for war,
incitement of imminent violence or the advocacy of hatred based on any
identifiable group characteristic and that constitutes incitement to cause
harm.
3.2
For ease of reference we reproduce the wording of
sections 16(1) and (2) of the Bill:
"(1) Any
person may request, in the prescribed manner, that a publication, other than a
newspaper that is published by a member of the Newspaper Association of South
Africa, which is to be or is being distributed in the Republic, be classified
in terms of this section.
(2) Any person, except the publisher of a
newspaper contemplated in subsection (1), 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—
(a) sexual conduct[3];
(b) propaganda for war;
(c) incitement to imminent violence; or
(d) the advocacy of hatred based on any identifiable group
characteristic that constitutes incitement to cause harm,
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.
(3) The Board
shall refer any publication submitted to the Board in terms of subsection (1)
or (2) to a classification committee, for examination and classification of the
publication.”
3.3
Newspapers[4] published by a NASA
member are specifically excluded from the provisions of sections 16(1) and
16(2) of the Bill. The effect of this
exclusion is that newspapers published by NASA members are not subject to
classification either -
3.3.1
where a third party requests that the newspaper
concerned be classified in terms of section 16(1) of the Bill; or
3.3.2
in terms of the mandatory provisions of section 16(2)
of the Bill.
3.4
A further effect of the exclusion is that the
newspapers concerned are not subject to the provisions of sections 16(3) to
16(6) of the Bill.
3.5
Whilst, the inclusion of the exemption for NASA
members, which was absent from the first draft of the Bill, is acknowledged to
be a step in the right direction towards producing a Bill that achieves its
objectives but does not impose upon the constitutional rights of persons
affected by the Bill, we, however, caution that -
3.5.1
the restrictions imposed by sections 16(1) and
16(2) on non NASA members who create, produce, publish or advertise
publications are so overbroad as to be unconstitutional; and
3.5.2
the exemption is insufficiently broad and as a
consequence is discriminatory in a manner that violates the constitutional
right to equality enjoyed by those publications who are not members of NASA.
3.6
In any event, as we will explore further below, the
statutory offences created in terms of proposed provisions 24A(4), which apply
to all publications whatever associations they may be members of, render the
exemption granted in terms of the proposed section 16 a nullity.
The Restrictions Imposed by
Sections 16(1) and 16(2) are so Overbroad as to be Unconstitutional
3.7
In the course of conducting entirely legitimate and
proper businesses, many of PMSA's members will produce publications which are
not newspapers but which -
3.7.1
report or comment on news and matters of general interest;
3.7.2
contain film and book reviews;
3.7.3
refer to historical events; and
3.7.4
contain reports on matters of scientific or other academic
interest.
3.8
In doing so these publications might well contain
references to or descriptions of the subject matter contained in paragraphs (a)
to (d) of section 16(2) of the Bill. In
doing so, it would neither be the intention nor effect to produce publications
which can in any way be described as contrary to the bona mores of the
community. By way of example, a
periodical might contain a commentary on the ongoing trial of a public figure
accused of rape or might report on the rise of neo-Nazism in a particular
region. It cannot be the intention of
the legislature that merely reporting on such matters, without advocating or
promoting them, should be illegal in the absence of classification and yet no
appropriate exemption for such publications is made in this respect.
3.9
The effect of section 16(2) is that prior to
distributing these publications, the publisher would have to apply for
classification by the Board. This would
be the case whenever a publication contains visual presentations, descriptions
or representations of any of the matters listed in section 16(2)(a) to (d).
3.10
The items listed in section 16(2)(a)
to (d) ("prohibited topics")
are, themselves, extraordinarily broad. No
carve-out is made for legitimate reporting which may, of necessity, involve
references to the prohibited topics but which does not amount to publication of
material which the bona mores of society would dictate should be classified
prior to publication.
3.11
This brings upon the publisher concerned an undue
administrative burden, and expense, and in so doing will hamper the efficient
publication and distribution of material the likes of which has long been
freely distributed without prior censorship (or indeed any apparent need for
prior censorship). We submit that this
is not constitutionally permissible.
3.12
Section 16 of the Constitution protects freedom of
expression. Section 16 of the Constitution
provides as follows -
“(1) Everyone has the right to freedom of expression, which
includes
(a) freedom of the press
and other media;
(b) freedom to receive
or impart information or ideas;
(c) freedom of artistic
creativity; and
(d) academic freedom and
freedom of scientific research.
(2) The right in subsection (1) does not
extend to
(a) propaganda for war;
(b) incitement of
imminent violence; or
(c) advocacy of hatred
that is based on race, ethnicity, gender or religion, and that constitutes
incitement to cause harm.”
3.13
There can be no doubt that the prohibited topics
listed in proposed section 16(2)(a) to (d) of the Films and Publications Act
fall within the protective boundaries of section 16(1) of the Constitution, in
as much as they are not excluded from this protection by the provisions of
section 16(2) of the Constitution. Examples
of such material would include -
3.13.1
news reports of rape or indecent assault;
3.13.2
news reports of public statements by individuals,
public leaders or groups;
3.13.3
book reviews and film reviews, where the subject
matter of the review contains depictions or descriptions of the prohibited
topics; and
3.13.4
letters and editorials.
3.14
The findings of the
“Where
the State extends the scope of regulation beyond expression envisaged in s
16(2), it encroaches on the terrain of protected expression and can do so only
if such regulation meets the justification criteria in s 36(1) of the
Constitution.
The
prohibition against the broadcasting of material that is 'likely to prejudice
relations between sections of the population' self-evidently limits the right
in s 16 of the Constitution. The phrase 'section of the population' in this
part of clause 2(a) is less specific than 'race, ethnicity, gender or religion'
as spelt out in s 16(2)(c). The prohibition clearly
goes beyond the categories of expression enumerated in s 16(2). It does not, for instance, require that the
material prohibited should amount to advocacy of hatred, least of all hatred
based on race, ethnicity, gender or religion, nor that it should have any
potential to cause harm.” (at paras 34 – 35)
3.15
We have demonstrated above, by the examples we have
listed in paragraphs 3.13.1 to 3.13.4, that what is at issue here is the fact that the Bill
seeks to limit freedom of speech in respect of speech that clearly falls
outside of the ambit of section 16(2) of the Constitution -
3.15.1
Section 16(2) of the Constitution does not make any
reference to "sexual conduct" as envisaged in proposed section
16(2)(a) of the Films and Publications Act; and
3.15.2
Section 16(2)(c) of the
Constitution makes reference to "advocacy of hatred that is based on race,
ethnicity, gender or religion, and that constitutes incitement to cause
harm". By contrast, the
corresponding provision in the proposed section 16(2)(d) of the Films and
Publications Act speaks more widely of "advocacy of hatred based on any
identifiable group characteristic, and that constitutes incitement to cause
harm" (our emphasis).
3.16
On the principal enunciated in the Islamic Unity Convention matter by the
Constitutional Court, the provisions of the proposed section 16(2) of the Films
and Publications Act, extend far beyond the constitutionally defined limits of
the right to freedom of expression as enshrined in section 16(1) of the
Constitution in that a prohibition is placed on speech pertaining to
"sexual conduct". Immediately
caught within this net are such innocuous topics as HIV/AIDS education and
scientific articles on human reproduction or sexual health, as well as reports
on crimes of a sexual nature, including rape and indecent assault.
3.17
The ambit of the prohibition against advocacy of
hatred is made far broader than the legislature ever intended it should be when
promulgating the Constitution. Whereas
the Constitution recognises the need to protect specified groups from hate speech,
the Bill goes beyond the bounds of the Constitution and seeks to include
unspecified groups by the inclusion of the phrase "advocacy of hatred
based on any identifiable group characteristic". This could include, for example, bald people
or pregnant women.
3.18
In consequence of this, the limitations of the
right to freedom of expression as they now appear in the proposed section 16(2)
of the Films and Publications Act will only be defensible to the extent that they
may be said to be reasonable and justifiable limitations of the right to
freedom of expression in terms of section 36 of the Constitution.
3.19
Section 36(1) of the Constitution provides:
“The
rights in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation is reasonable and justifiable in
an open and democratic society based on human dignity, equality and freedom,
taking into account all relevant factors, including
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.”
3.20
Any assessment of a limitation imposed on a
fundamental right must take place in the context of a full understanding of the
nature of the right concerned.
3.21
In the matter of South African National Defence Union v Minister of Defence &
Another 1999 (4) SA 469 (CC), the
“Freedom
of expression lies at the heart of democracy. It is valuable for many reasons, including its
instrumental function as a guarantor of democracy, its implicit recognition and
protection of the moral agency of individuals in our society and its
facilitation of the search for truth by individuals and society generally. The Constitution recognises that individuals
in our society need to be able to hear, form and express opinions and views
freely on a wide range of matters.” at para 7
3.22
This approach has been consistently followed by the
"Freedom of
expression, …. is subject to
a number of exceptions which, however, must be narrowly interpreted and the
necessity for any restrictions must be convincingly established[6].”
3.23
This notwithstanding, what is at stake is the right
of the press and print media to the freedom it is granted in any democratic
society, and which is specifically protected in section 16(1)(a)
of the Constitution.
3.24
Most recently, the
“The
need for public information and awareness flows from the nature of our
democracy. Public participation on a
continuous basis provides vitality to democracy. This was also recognised by the House of Lords
in McCartan Turkington Breen (A Firm)
v Times Newspapers Ltd that “[t]he proper functioning of a modern
participatory democracy requires that the media be free, active, professional
and inquiring.” A vibrant and
independent media encourages citizens to be actively involved in public
affairs, to identify themselves with public institutions and to derive the
benefits that flow from living in a constitutional democracy. Access to information and the facilitation of
learning and understanding are essential for meaningful involvement of ordinary
citizens in public life.”
South African Broadcasting
Corporation v National Director of Public Prosecutions and Others CCT 58/06, as
yet unreported judgment delivered on 21 September 2006, at para 28.
3.25.1
First, pre-classification will result in the undue
delay of publications. These delays will
have a major impact on non NASA member newspapers which are published daily as
they will simply not be able to report on immediate news events. In addition, many magazines are distributed
weekly or bi-weekly and the mandatory classification process would undoubtedly
interfere with this. Even monthly
periodicals might be delayed. Coupled to
the delay in distribution of newspapers, magazines and periodicals (which
consumers would expect to be distributed in accordance with normal time-tables)
is the fact that news is a perishable commodity. There is little sense in reporting what is
already common knowledge within the public domain and it is not beyond the
realms of reasonable possibility that these requirements may seriously hamper
non-NASA member publications from delivering news at all;
3.25.2
Second, it is likely to be extremely difficult for
publishers to determine whether particular articles fall within the terms of
the proposed section 16(2) -
3.25.2.1
We have already noted that the provisions of the
proposed section 16(2) of the Act are far from precise. There is accordingly a real danger that,
publishers may well end up self-censoring material that they think might
fall within the provisions of the proposed section 16(2) and the section will
therefore affect even more expression than would otherwise be the case. The words of the
“The
prohibition against the broadcasting of any material which is 'likely to
prejudice relations between sections of the population' is cast in absolute
terms; no material that fits the description may be broadcast. The prohibition is so widely phrased and so
far-reaching that it would be difficult to know beforehand what is really
prohibited or permitted. No intelligible standard has been provided to assist
in the determination of the scope of the prohibition. It would deny both
broadcasters and their audiences the right to hear, form and freely express and
disseminate their opinions and views on a wide range of subjects.” at para 44
3.25.2.2
This difficulty of non-offending expression being caught
up in the very wide net of the proposed sections is exacerbated by the fact
that where a publication contains only one article (or even a portion of the
article) that falls within the proposed section 16(2), it is the entire
publication that must be submitted for classification in terms of the proposed
section 16(2).
3.25.3
Third, the threat of the extremely severe censure
that a publisher faces for failing to submit a publication under the mandatory
provisions of the proposed section 16(2) will cause an undue reticence on the
part of publishers to publish material that ought not to be classified in the
first place. The proposed section 24A(2) of the Films and Publications Act, as introduced by
clause 29 of the Bill, provides for such publisher to be liable to a fine or a
period of imprisonment of up to five years.
That severe punishments such as imprisonment can have a “chilling effect” on expression is made
clear by the Islamic Unity case
where the
“[The
Board contended] that no criminal sanction goes with the prohibition and it
therefore carries none of the 'chilling' consequences of the criminal law. This ignores the fact that the Act authorises
the regulatory authority in instances of repeated violations to suspend the
license of an errant broadcaster for up to 30 days at most. I do not agree that the absence of a criminal
sanction necessarily means that other sanctions cannot be adequate or effective
punishments and deterrents. Broadcasters
are in the business of broadcasting; having a licence suspended for a month
would have significant implications for their business.” at para 48
3.25.4
Prior restraints of the nature contemplated here
are subject to a heavy presumption against their constitutionality due to their
chilling effects on free speech and encouragement of self-censorship and have
in fact been found to be unconstitutional by our courts in a number of cases.[7] Prior restraints on freedom of expression[8] and vague or overbroad laws[9] have also been found to have a 'chilling effect'
on free expression in the courts of other jurisdictions, notably in the United
States.
3.26
With the far reaching borders of the limitation now
understood, it remains only to examine the purpose of the limitation and the
relationship between the purpose and the limitation itself, as required in
terms of section 36(1)(d) of the Constitution. The aim of this enquiry is to establish
whether the limitation exceeds its purpose, in which event, we submit, the
limitation does not pass Constitutional muster.
3.27
PMSA understands the purpose of the limitation to
be encapsulated in the explanatory memorandum to the Bill, where the “core
objective” is described as being “protecting children from potentially
disturbing, harmful and age-inappropriate materials in publications, films, …”.
3.28
We reiterate that PMSA and its members find this
objective to be laudable however submit that the extent of the limitation of
the right to freedom of expression exceeds this objective to such an extent as
to render the attempted the limitation unconstitutional.
3.29
The expression affected by the limitation includes
-
3.29.1
news reports of rape and indecent assault;
3.29.2
news reports on territorial wars, invasions and/or
other acts of violence, such as civil disobedience, strikes or riots;
3.29.3
news reports on hateful public utterances by
individuals and public officials and editorials;
3.29.4
articles on HIV/AIDS education, sexual health or reproduction.
Pre-censoring
these matters which clearly fall within the body of knowledge that is in the
public interest and thus should be made available, cannot legitimately be
linked in any way to Parliament’s laudable intention of protecting children,
especially in light of the extremely harmful "chilling of press
freedom" side-effect that will concomitantly arise.
3.30
The
“There
is no doubt that the inroads on the right to freedom of expression made by the
prohibition on which the complaint is based are far too extensive and outweigh
the factors considered by the Board as ameliorating their impact. As already
stated, no grounds of justification have been advanced by the IBA and the
Minister for such a serious infraction of the right guaranteed by s 16(1) of
the Constitution. It has also not
been shown that the very real need to protect dignity, equality and the
development of national unity could not be served adequately by the enactment
of a provision which is appropriately tailored and more narrowly focused. I
find therefore that the relevant portion of clause 2(a) impermissibly limits
the right to freedom of expression and is accordingly unconstitutional.” at
para 51 (our emphasis)
Exemption is Discriminatory
3.31
The exclusion refers specifically to NASA and its
members. NASA presently has
approximately 42 national and 180 community newspapers as members.
3.32
Section 9 of the Constitution sets forth the right
to equality:
" 9. Equality
1) Everyone
is equal before the law and has the right to equal protection and
benefit of the law.
2) Equality
includes the full and equal enjoyment of all rights and freedoms. To
promote the achievement of equality, legislative and other measures designed to
protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination may be taken.
3) The
state may not unfairly discriminate directly or indirectly against anyone on
one or more grounds, including race, gender, sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language and birth.
4) No
person may unfairly discriminate directly or indirectly against anyone on one
or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair
discrimination.
5) Discrimination
on one or more of the grounds listed in subsection (3) is unfair unless it is
established that the discrimination is fair." (our
emphasis)
3.33
It is of particular concern here that the PMSA
members who publish legitimate publications akin to newspapers are not afforded
the same right and freedom in terms of law to publish their publications
without having to comply with the onerous provisions of the proposed sections
16(1) and (2) of the Films and Publications Act.
3.34
In Harksen v
Lane NO 1998 (1) SA 300 (CC), at para 53, the
3.34.1
Does the challenged law or conduct differentiate
between people or categories of people? If
so, does the differentiation bear a rational connection to a legitimate
government purpose? If it does not, then
there is a violation of section 9(1). We
submit that it is patently clear that the proposed sections 16(1) and (2) of
the Films and Publications Act discriminate between publishers who are members
of NASA and those who are not. There is
no rational connection in this differentiation to a legitimate government
purpose. As we have illustrated above in our discussion of the right to freedom
of speech, the provisions of the proposed sections 16(1) and (2) have a
deleterious effect on fundamental rights which far exceeds the scope of the
object of their inclusion.
3.34.2
Does the differentiation amount to unfair
discrimination? This requires a
two-stage analysis –
3.34.2.1
Firstly, does the differentiation amount to
"discrimination"? If it is based
on a ground in section 9(3), then discrimination will have been established. If it is not based on one of these specified
grounds, then whether or not discrimination has taken place will depend on
whether, objectively, the ground is based on attributes and characteristics
that have the potential to impair the fundamental human dignity of persons as
human beings or to affect them adversely in a comparably serious manner. We are dealing here with juristic persons. Section 8(4) of the Constitution provides that
–
"A juristic
person is entitled to the rights in the Bill of Rights to the extent required
by the nature of the rights and the nature of the juristic person."
We submit that
the right to equality is a right of a nature that can be applied to a juristic
person. Behind almost all juristic
persons, stand natural persons who's own rights to equality can be infringed
upon. The proposed provisions have the
effect of placing an onerous pre-publication burden on non-NASA members, and
hence the natural persons who stand behind those members. We have illustrated above the practical
effects that the proposed provisions will have on non-NASA member publications
and it seems somewhat arbitrary that some legitimate publications should be
exempted from the hardships of the proposed provisions while others are not
when in fact there is no readily apparent reason why
the exemption is not uniformly applied.
3.34.2.2
Secondly, if the differentiation amounts to
"discrimination", does it amount to "unfair
discrimination"? As the
discrimination here is not based on a ground specified in section 9(3) of the
Constitution, one has to have regard to the impact of the discrimination on those
who are victims of it. The provisions of
paragraph 3.25 are apposite and should be read as reiterated here. In addition, we emphasise the commercial
constraint that pre-publication classification entails for those publications
subject to it. The ability of publications
to compete in an environment where not all competitors are subject to the same
restraints will be severely impinged upon. Opportunities of being first to market with
particular editorial content will be lost and stagnant "news" is not
news at all and not worth reporting. By
way of further example, a magazine which contains a review of a film which
happens to contain sexual content will have to endure pre-publication
classicisation but this might well result in the publication concerned being
released after the film concerned has already ended its run in theatres. The exemption afforded to NASA members should
be extended to all legitimate publications and classification for a publication
should only be compulsory in circumstances where a complaint has been made by a
third party or the intent of the publication is to carry material containing
sexual content of a lascivious nature.
This would be a reasonable measure taken to achieve the objects of the
Bill and it stands in sharp contrast to the proposed measures which result in
mandatory pre-classification and its attendant noxious side-effects as detailed
in this submission.
3.35
We submit then the exemption is tantamount to
unfair discrimination and that this constitutes a violation of the
constitutional right to equality enjoyed by our members who are not members of
NASA. We submit further that this
limitation of a constitutional right cannot be justified in terms of the
provisions of section 36 of the Constitution. Once again, if one has regard to the objects
of the Bill, there is simply no rationally justifiable connection between these
and the unfair discrimination that self evidently results from the proposed
provisions.
3.36
It is worth mentioning in this context that an
application of the rationality test developed by the
3.37
The rationality test holds that a law or conduct
that differentiates between groups of people will be valid as long as it does
not deny equal protection or benefit of
the law, or does not amount to unequal treatment under the law in violation
of section 9(1) of the Constitution. A
law or conduct will violate section 9(1) if the differentiation does not have a
legitimate purpose and if there is no rational connection between the
differentiation and the purpose. As the
"In regard to mere differentiation the constitutional state is expected to act in a rational manner. It should not regulate in an arbitrary manner or manifest “naked preferences”that serve no legitimate governmental purpose, for that would be inconsistent with the rule of law and the fundamental premises of the constitutional state. The purpose of this aspect of equality is, therefore, to ensure that the state is bound to function in a rational manner … Accordingly, before it can be said that mere differentiation infringes section 8 [of the interim constitution] it must be established that there is no rational relationship between the differentiation in question and the governmental purpose which is proffered to validate it. In the absence of such rational relationship the differentiation would infringe section 8"
3.38
We have already demonstrated the lack of
rationality in the arbitrary imposition of the proposed sections 16(1) and (2).
No legitimate government purpose is
attached to the imposition of these provisions because -
3.38.1
they are unnecessary to achieve the objects of the
Bill; and
3.38.2
the fact that the exemption is not uniformly
applied to an entire class of persons (the publishers of legitimate newspapers
and magazines containing editorial and advertising content not intended nor
capable of being construed as amoral or lascivious in any way) but rather to
only an element therefore means that provisions of proposed sections 16(1) and
(2) would be entirely ineffective even if their design was capable of
achieving, in rational proportion, the objects of the Bill.
3.39
In Pharmaceutical
Manufacturers Association of SA: In re: ex parte President of the Republic of
South Africa 2000 (2) SA 674 (CC) at para 85 the Court held that all
exercises of public power, whether they take the form of law or conduct, must
be rational –
"It
is a requirement of the rule of law that the exercise of public power by the
executive and other functionaries should not be arbitrary. Decisions must be
rationally related to the purpose for which the power was given, otherwise they
are in effect arbitrary and inconsistent with this requirement. It follows that
in order to pass constitutional scrutiny the exercise of public power by the
executive and other functionaries must, at least, comply with this requirement. If it does not, it falls short of the
standards demanded by our Constitution for such action."
3.40
We accordingly submit that the mandatory
classification process envisaged in proposed sections 16(1) and (2) of the
Films and Publications Act fall be to struck out as unconstitutional, should they
be enacted that alternative measures must be put in place to achieve the sound
objectives of the Bill but which do not result in the contemplated
unconstitutional outcomes.
4
statutory offences in terms of proposed sections
24a and 24b of the bill
4.1
Sections 24A and 24B of the Bill set out the
prohibitions, offences and penalties applicable to the distribution, exhibition
and possession of films, games and publications.
4.2
The provisions of the proposed sections 24A(2) and (3) and 24B(2) are of particular concern.
Section 24A(2)
and (3)
4.3
Section 24A(2) and (3) state that:
"(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(1) of this Act
which has –
(a) except
with respect to broadcasters that are subject to regulation by the Independent
Communications Authority of South Africa and a newspaper contemplated in
section 16 (1), not been classified by the Board;
(b) been
classified as a refused classification; or
(c) been classified as XX, or would, except with regard
to a newspaper contemplated in section 16(1), 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, with regard to films and games, not being registered with the
Board as a distributor or exhibitor of films or games, and who knowingly
broadcasts, distributes, exhibits in public, offers for exhibition, sale or
hire or advertises for sale or hire any film, game or a publication which
has been classified X18, 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." (our
emphasis)
4.4
Our concern here is that these provisions will
significantly affect the ability of our members to place advertisements in
their publications in respect of the items concerned because an onus is placed
on the party permitting advertising to ascertain, or judge, whether any item
would have been classified in a particular manner.
4.5
It is not reasonable to expect a publication
offering advertising space to conduct its own assessment of all products to be
advertised that may or may not be classified in a certain manner by the Board
were they submitted for classification.
Section 24A(4)
4.6
Section 24A(4) of the Bill states that -
"(4) Any person who knowingly distributes[10] or exhibits any film, game or publication classified X18 or
which contains depictions, descriptions or scenes of sexual conduct to a person
under the age of 18 years 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."
4.7
The provisions of this provision are highly
problematic. Due to the extraordinarily
wide definition of the term "sexual conduct" the effect of this
provision is that any publisher of any newspaper, magazine or periodical, even
one which benefits from the exemption contained in the proposed section 16(1)
would not be able to distribute their publications to persons under the age of
18 years.
4.8
Even respected daily broadsheets which may contain
a reference to sexual conduct in any form, however innocuous the reference will
be taboo material for those under 18 years of age. Of course, it is practically impossible to
ensure that widely distributed publications such as national newspapers do not
fall into the hands of children and thus it is all but impossible for
publishers of such items to comply with this section of the Bill.
4.9
Even if compliance was possible, the effect of the
inclusion of this provision is to render the exemption provided in terms of the
proposed section 16(1) a nullity. A
newspaper which is covered by the exemption would still have to exercise
considerable prior restraint in its reporting, lest it fall foul of these
provisions. This has the obvious and
undeniable effect of removing any benefit bestowed by the exemption granted in
terms of the proposed section 16(1).
4.10
Quite apart from the fact that this provision
stands at odds with the exemption granted in terms of section 16(1), the fact
is that it will lead to ludicrous consequences for publishers of legitimate
material to be caught within the net of this prohibition, as they simply will
not be permitted to allow their publications, which we reiterate could be
respected broadsheet daily newspapers or monthly scientific journals, to fall
within the hands of children. We
reiterate that in the case of such common items as daily newspapers, this could
be difficult to achieve, but even if it could be achieved, it could not be the
intention of the legislature to bring about such consequences.
4.11
This provision should accordingly be removed or
revised so as to make appropriate exemption for legitimate material.
Section 24B(2)
4.12
Section 24B(2) states that:
"(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 a
police official of the South African Police Service; and
(b)
furnish, at the request of the South African Police
Service, 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."
4.13
The effect of section 24B(2) is that a journalist
investigating any incident of child pornography or the sexual exploitation of
children will have to comply with the provisions of this section, failing which
that journalist will be guilty of an offence.
4.14
The section is wide in application as it includes
within its ambit a mere suspicion of any conduct covered by section
24B(1). In addition, the
provisions of section 24B(2)(b) will significantly undermine the
confidentiality of journalists' sources and ultimately the integrity of the
print media. The protection of
journalistic sources is a measure which carries prime importance in democratic
societies based on freedom and democracy. A failure to protect journalistic sources can
in fact contribute to a vitiation of the right the press holds to freedom of
expression as the press will not readily publish stories concerning crime if it
will be forced to give up its sources of information, since this will hinder
the ability of the press to report freely without fear of reprisal from
informants.
4.15
In certain foreign jurisdictions the
protection-worthy status of a journalist's confidential source has been
recognised and been granted a protection from disclosure akin to legal
privilege.
4.16
In the
"No court
may require a person to disclose, nor is a person guilty of contempt of court
for refusing to disclose the source of information contained in the publication
for which he is responsible, unless it can be established to the satisfaction
of the court that disclosure is necessary in the interests of justice or
national security or the prevention of disorder or crime[12]."
4.17
Legislative fiat in the
4.18
Member states in the European Union recognise that –
"Protection
of journalistic sources is one of the basic conditions for press
freedom….Without such freedom, sources may be deterred from assisting the press
in informing the public on matters of public interest. As a result, the vital
public-watchdog role of the press may be undermined and the ability of the
press to provide accurate and reliable information may be adversely
affected."[13]
4.19
It is recognised in the European Union that only an
overriding requirement in the public interest could trump the right to keep
secret a journalistic source.
4.20
Dicta such as these illustrate that the protection
of journalistic sources from disclosure is actually a basic and fundamental
tenet of a well functioning democratic society. The provisions of the proposed section 24B
stand in direct opposition to the well recognised principle that it is the
right of journalist and publishers to keep secret their sources unless ordered
by a court to disclose a source where the court concerned is satisfied that it
is in the interests of justice to make such an order.
Section 24B(3)
4.21
Section 24B(3) states that:
(3)
Any person who has control over any film, game or
publication which contains depictions, descriptions or scenes of sexual conduct
and who fails to take all reasonable steps to prevent access to such materials
by any person under the age of 18 years 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."
4.22
We have already illustrated in this document how
perfectly legitimate publications, such as magazines containing newsworthy
editorial content are (incorrectly) caught in the net of publications that must
be classified merely because they contain legitimate content which necessarily
makes references to sexual conduct.
4.23
Literally interpreted, these proposed provisions
mean that all publishers of newspapers, magazines and other periodicals which
may contain even perfectly legitimate references to sexual conduct, such as a
report on sexual crimes or a scientific study on sexuality, must be kept from
persons under the age of 18 years.
4.24
These provisions lead to ludicrous results in
that -
4.24.1
all parties in the publication distribution chain
from publishers to shop proprietors who sell publications will not be permitted
to sell them to persons under the age of 18, if the newspaper or publication concerned
contains and descriptions of "sexual conduct";
4.24.2
shop proprietors might have to peruse the content
of every publication they sell in an effort to ascertain whether any references
to sexual conduct are present; and
4.24.3
publishers would have to warn their customers and
consumers that a reference to sexual conduct was contained in a publication,
even if there was but one minor reference to, for example, a rape that had
taken place in a large publication that otherwise does not contain any sexual
content.
4.25
We submit then that it is clear that these
provisions should be revised to give effect to the purpose of their inclusion,
which is to protect children from harmful and disturbing material, rather than
the effects which currently arise, as explained.
5
removal of the high court appeal jurisdiction in
respect of classification decisions
5.1
Section 25 of the Bill will repeal section 21 of
the Films and Publications Act, if the Bill is passed into law.
5.2
Section 21 of the Films and Publications Act
presently provides:
"21 Appeal to Supreme
Court
(1)
The Minister or any person who has lodged a
complaint with the Board that any publication be referred to a classification
committee for a decision and classification in terms of section 17, and if a
publication or film has in terms of a decision referred to in section 20 been
classified as XX or X18, the publisher or distributor of that publication, or
the person who applied for the classification of that film, may within a period
of 30 days from the date on which he or she was notified of the decision in
respect of the film, or within 30 days from the date on which the
classification of the publication was published in the Gazette , appeal to the High Court against that decision.
(2)
The Supreme Court may on good cause
shown, suspend a decision with regard to a publication pending the outcome of
the appeal.
(3)
The Supreme Court may confirm the
decision appealed against or may set that decision aside, and give such
decision, make such classification and impose such conditions as should in its
view have been given, made or imposed.
(4)
A decision of the Supreme Court shall
for purposes of this Act be deemed to be a decision of the Board."
5.3
The effect of this amendment is that decisions
of the Board can now only be appealed to the proposed Appeal Board. A decision
of the Appeal Board can only be taken on review to the High Court, but not
appealed.
5.4
There seems to be no rational explanation for
the fact that persons whose publications are subject to classification are now
deprived of the opportunity to take the matter before an impartial appeal court
and instead have to have the matter reconsidered by a statutory appeal board.
5.5
An appeal lodged before the High Court would be
conducted in accordance with the Uniform Rules for Proceedings before the High
Court which are designed the ensure that the principals of natural justice are
adhered to. No indication is given as to
how the Appeal Board will function. In any event, the fact remains that
decisions of the Appeal Board can only be taken on review to the High court,
whereas the High Court currently also enjoys appeal jurisdiction in respect of
the decisions of the Board. The
differences between the appeal and review procedures highlight the need to
grant the High Court jurisdiction to hear both forms of referral -
5.5.1
An appeal involves a rehearing on the merits of the
matter concerned but the appeal court is limited to taking into account the
evidence or information placed before the lower tribunal, and the only question
is whether the decision appealed was right or wrong. A review involves a limited rehearing of the
matter concerned and the question of the enquiry is rather whether the
procedure adopted by the lower tribunal was correct.
5.5.2
An appeal is directed at the result of an
adjudication process, whereas a review is aimed at considering the method by
which that result was obtained.
5.5.3
An appeal is based upon the record of the matter in
the forum of the first instance and the appellant is bound by it; he cannot
rely on any circumstance which does not appear upon or cannot be deduced from
the record. In a review the applicant
may travel beyond the record in order to rely on certain grounds in support of
his review application, such as gross irregularity, which need not necessarily
appear on the face of the record.
5.5.4
A pending appeal, as a general rule, suspends the
order appealed whereas a pending review does not automatically suspend the
administrative act under review.
5.6
This brief comparison of the some of the
inherent differences in the appeal and review procedures highlights the
prejudice that will be occasioned to affected persons if section 21 of the
Films and Publications Act is repealed. Persons
dissatisfied with the decision of the Appeal Board will be confined to venting
their dissatisfaction in review proceedings but in doing so will only be able
to attack the dissatisfactory decision if it was arrived at by irregular
procedure. A decision of the Appeal
Board which is manifestly wrong will stand, in the absence of a further right
of appeal, if there is no procedural irregularity in terms of which a review
application can be launched.
5.7
Clearly then, it is not in the interests of
justice for the provisions of section 21 to be repealed and we submit they
should remain in place, notwithstanding the fact that the Appeal Board is
established.
6.1
We trust that our submissions will receive your
fair consideration in due course and we thank you in advance for this.
6.2
Should you have any queries pertaining to this
document or any related matter, please do not hesitate to contact
TABLE
OF CONTENTS
1 INTRODUCTION 1
2 SYNOPSIS OF SUBMISSION 4
3 PROPOSED AMENDMENTS TO SECTION 16 OF THE FILMS AND
PUBLICATIONS ACT 6
4 STATUTORY OFFENCES IN TERMS OF PROPOSED SECTIONS
24A AND 24B OF THE BILL 24
5 REMOVAL OF THE HIGH COURT APPEAL JURISDICTION IN
RESPECT OF CLASSIFICATION DECISIONS 31
6 CONCLUSION 34
[1] Being a publication
which is not a newspaper published by a member of NASA, as explained further in
paragraph 3.2 and following.
[2] Again, NASA members are excluded from
this classification requirement.
[3] “Sexual conduct” is defined as follows in
section 1 of the Films and Publications Act- to include (i) male genitals
in a state of arousal or stimulation; (ii) the undue display of genitals or of
the anal region;(iii) masturbation; (iv) bestiality; (v) sexual intercourse,
whether real or simulated, including
anal sexual intercourse; (vi) sexual contact involving the direct or
indirect fondling or touching of the
intimate parts of a body, including the breasts, with or without any object;
(vii) the penetration of a vagina or anus with any object;(viii) oral genital
contact; or (ix) oral anal contact.”
[4] Newspapers are defined in section 1 of
the Bill to include online publications of newspapers.
[5]
Sunday
Times v The United Kingdom (No. 2) (1992) 14 EHRR 229 at para 50(a)Cited with
approval in Islamic Unity Convention v Independent Broadcasting Authority and
Others 2002 (4) SA 294 (CC) at para 28
[6] Ibid
[7] See Mandela v Falati 1995 (1) SA 251(W).
[8] Nebraska Press Association v Stuart 427
US 539 (1976) at 599
[9] Reno v American Civil Liberties Union
(1998) 61 MLR 414 where the vagueness of the statutory phrases "indecent
transmission" and "patently offensive display" were described as
having an obviously chilling effect on speech.
[10] It should be noted that the word "distribute" is defined in
section 1 of the Bill to include "to sell, hire out or
offer or keep for sale or hire".
Advertisements placed in newspapers for films, games or publications
classified as X18 could be interpreted as the offering for sale of such films,
games or publications by a newspaper in contravention of the section. If this is something which newspapers are
able to control then newspapers need not be exempted from the section. If not then newspapers should be exempted
from the section.
[11] Contempt of Court
Act, 1981
[12] Section 10
[13] European Court of Human Rights, Goodwin
v