Films and Publications Amendment Bill: public hearings

SOCIAL SERVICES SELECT COMMITTEE
16 October 2007
FILMS AND PUBLICATIONS AMENDMENT BILL: PUBLIC HEARINGS

Chairperson: Ms J Masilo (ANC, North West)

Documents handed out:
South African National Editor’s Forum submission
Print Media of South Africa submission
Print Media of South Africa on Second Draft of Films and Publications Amendment Bill presentation
National Association of Broadcasters submission
National Association of Broadcasters presentation
Freedom of Expression Institute submission
MTN, Cell C and Vodacom submission
Cellular Operators’ Joint presentation
Centre for Constitutional Development

Audio recording of meeting

SUMMARY
The Committee received public submissions from the South African National Editors Forum, the Print Media of South Africa, National Association of Broadcasters and Freedom of Expression Institute, as well as a joint delegation representing the cellular network operators MTN, Vodacom and Cell C. All agreed that they shared the Committee’s concerns to protect children from accessing or being subjected to pornography, but disagreed that the current wording of the Bill was adequate. The National Editors Forum expressed four concerns, being the wide application of the Bill, the suppression of the Constitutional right to free speech, the effect of the proposed Section 16 (2) and the criminal sanctions in the Bill. It was pointed out that the Forum already had self-regulatory mechanisms and an Ombudsperson, and Press Council, in common with media worldwide and examples of how this worked were given. The strengthening of the Press Council was aimed to increase adherence to codes and principles. It now took account of child pornography. The Forum suggested that another way be found to address the challenges.

Print Media of South Africa was also subject to self-regulation, and had a Press Ombudsman and Press Appeals Panel. This body argued that exemptions were too narrow. Distributors and advertisers being made subject to the classification provisions of the Bill amounted to restraint of freedom of expression and was considered unconstitutional. The classification provisions in the proposed section 16(2) encroached on freedom of speech, which was constitutionally protected, and in addition meant that even educational material or that on HIV would have to be classified. This body also objected to the statutory offences created by the new Sections 24A, stating that it was unreasonable to expect a publication to conduct an assessment of whether products to be advertised may or may not be classified in a certain manner. It was submitted that the elimination of child pornography did not justify these the proposed sections 16(2), 24A and 24B should be removed, and that the exemptions be extended to those subject to regulation by the Press Council.

The National Association of Broadcasters was the representative of the South African broadcasting industry. It was concerned about constitutional issues. It indicated that the current Section 27(1) of the existing Act already criminalized distribution and production of child pornography. The Electronic Communications Act and the licence conditions of the Independent Communications Authority further set out conditions, that prohibited child pornography. Clauses 21 and 29 were challenged. The effect of Clause 21 would be that the Film and Publication Board would regulate broadcasting, which ran contrary to Section 192 of the Constitution. The classification and criminalisation systems in Clause 29 would prevent showing of a number of films of enormous artistic merit, including several Oscar nominated films, and were contrary to freedom of expression.  The self-regulatory mechanisms were already sufficient protection. The current exemption of broadcasters should be left in place.

Members raised questions as to whether prevention was better than cure, questioned the self-regulation, objected to the references to constitutional court challenges, and challenged whether the views now expressed on constitutionality, or those of the State Law Advisors, were correct.

The Freedom of Expression Institute supported several points already made, and raised problems on the point classification system. This would mean potentially that all magazines and articles and other literature must be classified. The new classification of refused publication was draconian and imposed arbitrary requirements. The proposed repeal of Section 21 meant that proper administrative justice would be adversely affected. The proposed 24B offence violated the right to constitutional expression, association and movement, and could put journalists in a dangerous position by forcing them to reveal confidential sources of information. The Bill would make the work of the Press Council redundant.

The network operators stated that they supported the content regulations but gave the industry perspective. Content could be accessed in various ways and could be delivered by various methods. Network operators could not control the internet and wireless access. The definition of the chat room did not include SMS and MMS.  They proposed a co-regulatory body that recognized self-regulation, restrictions on the review and appeal power, and expansion of the exemptions to all publications.  Members raised questions on the workability of such a body, the proposals for SMS and MMS, and restriction of explicit content access via cellphones.
 
MINUTES
The Chairperson noted that the Bill was referred to the NCOP on 12 June 2007 and on Tuesday 12 September 2007 the Committee was briefed by the Department of Home Affairs (DHA). IT was then decided to hold public hearings. Although a workshop had originally been planned to enhance understanding of the Bill, this had been postponed. Advertisements in the respective newspapers inviting all stake holders to make submissions had resulted in the seven submissions tabled today.

Ms Shokie Bopane-Dlomo, CEO, Film and Publication Board, said that the Bill’s intention was to correct the difficulties the Film and Publication Board (FPB) had encountered in the current Act. This had lacuna that made it impossible to enforce the Act properly and there was a need for more clarity on the role of the Board. FPB wanted to strengthen compliance, most importantly corporate governance and the protection of children. Moreover, there was need to clarify roles and responsibilities of the various actors.

South African National Editors Forum (SANEF) submission
Mr Henry Jeffreys, Deputy Chairperson, SANEF said that it was common cause that everyone had the desire to ensure and create an environment that was decent for all citizens,  and one that protected and nourished children. He added that SANEF was committed to the young democracy of the country and to the upholding of the constitution. He also said that it was committed to the fight against the exploitation of children and their exposure to pornographic material and that the concerns the Editors would raise in particular should be understood in this context.

SANEF had four major concerns with the Bill: its wide application, the suppression of the constitutional free speech, the effect of Clause 16 (2) and the criminal sanctions in the Bill.

Mr Joe Thloloe. South African Press Ombudsperson, stated that SANEF already had self-regulatory mechanisms. There were worldwide examples of  self regulation, as set out clearly in the website www.mediaaccountability.org. In South Africa there was a two tier system, the first level was the core of the adjudicating system, and overseeing the core was the Press Council. The adjudicating system consisted of the Ombudsperson, with an appeals panel. If a reader had a complaint against a publisher he or she would refer it to the Ombud , who would first try to reach informal settlement. If this did not work there would be a formal hearing, where both the public and the media would be represented.  After the hearing, in the event of dissatisfaction, there was the option of the appeals panel headed by a retired judge of appeal, who sat with one person from the public, and the other from the media. Three was a press code that strived for the highest conduct in public journalism.

Beyond this procedure was the Press Council, which consisted of representatives from the public and media, who were not involved in the adjudication system. The Press Council was the interface between the adjudication system and the public. At all times they were subject to the law.

Mr Mathatha Tsedu, Chairperson, SANEF noted that the industry took public concerns very seriously, and the strengthening of the Press Council was aimed at strengthening adherence to codes and principles and also to increase public involvement. He said that in the battle to protect children the industry was an ally, and was certainly not aiming at making money from exploitation of children. As a result the new press code took cognisance of child pornography, which was not available before. SANEF believed that the importance of the issue would not justify the government in acting unconstitutionally and that another way should be found to address the challenge.

Print Media of South Africa (PMSA) Submission
Mr Trevor Ncube, President, Print Media of South Africa, began by informing the committee that Print Media was a non-profit organisation representing the interests of a broad range of media publications. Members of the PMSA were subject to self regulation by the Press Council of South Africa, and to give effect to this self regulation the Press Ombudsman was created, which had jurisdiction over 640 newspapers and magazines. There was also had a Press Appeals panel and their system of self regulation had proven itself in dealing with any contravention of the Press Code.

The Print Media was arguing that exemptions were too narrow and excluded a lot of publishers who were not members of the National Advertising Standards body (NASA). Moreover distributors and advertisers for the first time were subject to the classification provisions of the Bill and this amounted to a restraint of freedom of expression and was therefore unconstitutional. The Classification provisions in Clause 16(2) encroached on freedom of speech which was constitutionally protected. The classification of sexual conduct in 16(2) and the inclusion of propaganda for war or incitement to imminent violence meant that any article that was explicitly sexual or dealt with declarations of war, violent demonstrations etc would have to be submitted first to the classification board before publication. This would affect educational material or material on HIV/AIDS.

The major grievances against the statutory offences created by the new Section 24A (2) and (3) were that publishers should not be criminally liable for publications which may or should have been classified by the Films and Publications Board, and the imposition of criminal sanctions should be made clear in the application. Moreover, it was unreasonable to expect a publication to conduct an assessment of whether products to be advertised may or may not be classified in a certain manner. NASA and non NASA members would be guilty of an offence if the classification was not made by the Board, publishers would not be able to distribute any publication that contained depictions of sexual conduct to any person under 18, the definition of sexual conduct was too wide and the effect of criminal sanctions would stifle legitimate speech.

Mr Ncube added that the bill had notable constitutional difficulties. These were the restraint on freedom of expression that would result if the procedure to obtain classification first from the FPB was implemented. The imposition of criminal sanctions for non-compliance would stifle free expression and would encourage censorship. Whilst the PMSA supported the elimination of child pornography, it did not justify constitutionally protected rights being infringed. He submitted that all those sections with implications of unconstitutionality - 16 (2)and  (4), 24A and 24B should be removed. PMSA proposed that the NASA exemptions be extended to all persons subject to regulation by the Press Council

National Association of Broadcasters (NAB) Submissions
Ms D Qocha, Deputy Executive Director, NAB, introduced the delegates and noted that NAB was the representative of the South African broadcasting industry, and its members included the public and the commercial television community and sound broadcasters. She informed the committee that NAB was highly supportive of the Committee’s concern over the protection of children and the eradication of child pornography. However, all members of the NAB were unanimous in their concern about the extent of the proposed amendments and the consequences for independent regulation of broadcasting.

Adv Steve Budlender, legal advisor for NAB, said that the proposed Bill’s intention was to deal with child pornography, and one of the ways chosen was by criminalising child pornography. He however wanted to point out that under the current Act’s Section 27(1), distribution and production of child pornography was already a criminal offence. He further added that the Electronic Communications Act (ECA) required all broadcasters to comply with Independent Communications Authority of South Africa (ICASA) regulations or another code of conduct approved by ICASA and all programme content broadcast by NAB members was also governed by individual license conditions as set out by ICASA. These codes prohibited child pornography, and bestiality among other things listed on pages 10 and 11. The broadcasters were also required to report regularly to ICASA and they also relied and respected the guidelines of the Board. 
 
Mr Budlender informed the committee that NAB felt that the two aspects that fell foul of the constitution were Clause 21 and Clause 29. Clause 21 proposed to subject the broadcasters to the jurisdiction of the FPB and the effect would be that the Board would have to regulate broadcasting, as opposed to the current situation, where broadcasters who had a broadcasting license were not subject to the classification mechanism of the FPB. Clause 21 also proposed an exemption which meant that licensed broadcaster had to comply with Sections 24A (2) and (3) and would be criminally liable if they broadcasted any film classified XX, X18 or one that had been refused classification. Such a classification would affect movies and films which had a wide definition, and that included advertisements. The main problem was that the independent authority established for the regulation of broadcasting in Section 192 of the Constitution was ICASA. The Board, which would in effect now regulate broadcasting, was not independent and Section 192 requires that a regulatory body be independent. Under the Bill as framed, not only would the Board be encroaching on ICASA territory, but this provision also fell foul of the Constitution.

Clause 29 was also unconstitutional because sections 24A (4) and 24B (3) of the proposed provisions -definition of sexual conduct - was so broad that it encompassed a large number of mainstream films. As a result of this criminalisation of the distribution of films with sexual conduct, a large number of high quality films would not being broadcasted and these would include Oscar nominated American Beauty, Chicago and Monster, to name but a few. This was unconstitutional because Section 16(1) of the Constitution guaranteed the freedom to expression. Whilst propaganda for war, hate speech and incitement to violence was prohibited, sexual conduct  was not, and as such was included in the protection given under Section 16(1). He added that whilst limitation of rights was constitutional, censorship was a last resort, and it should never be allowed to go overboard. In addition he added that the above clauses contradicted the Board’s practice as many films containing sexual intercourse did get a restriction of under-18. The NAB believed that this clause, if it were to be enacted, would no doubt be challenged and found unconstitutional.

Adv Budlender concluded by saying that there were a number of statutory and self regulatory measures in place that protected children from being exposed to pornography and sexual exploitation. This was also the primary purpose of the bill, but it would fail to allow for effective implementation if it attempted to amend the current dispensation. Amendment was unnecessary,  given the existing regulations and the constitutional difficulties. NAB suggested that the current exemption of broadcasters be left in place, as it allowed for the prosecution for broadcasting child pornography. All other concerns were still covered by ICASA.

Discussion
Mr B Tolo (ANC, Mpumalanga) remarked that all the presenters agreed that children needed to be protected but that they wanted to self-regulate. He then asked what they proposed should be done to a person who broadcasted what the Bill was trying to prevent. He believed that prevention was better than cure.

Mr Ncube replied that all submissions were in agreement over the need for protection of the children.  However, what was being proposed in the Bill was an overkill that was taking away their constitutional rights.

Mr Jeffreys added that he was not aware of any publication that allowed for child pornography. He added that the Constitution, the highest authority, conferred the right to freedom of speech and expression. The responses set out to highlight that there was not sufficient justification to take away that constitutional right.

Ms F Mazibuko (ANC, Gauteng) wondered, if all media were so supportive of the Committee, why there was a problem. She noted that they had asked to self-regulate, but pointed out that if everyone did as they pleased this would be a disaster. People should live by principles and guidelines. She added that if they tuned in to Action on DSTV they would find explicit and ghastly material and the Bill was aiming to ensure that such material should not fall in the hands of children. She also wanted to mention that she thought that Multi-choice was taking people for a ride, considering that most of their programmes appeared to be repeats.

Mr Ncube replied that the media was not advocating a free-for-all, nor for non-regulation. However, people should be careful that in trying to avoid a banana republic they did not end up with a highly censored state. They also had rights under the Constitution that had to be given due consideration, and the Constitution set out parameters of what should and should not be done.  The industry wished to argue that they should be allowed to self regulate because they were a responsible industry and they had proven it.

Mr Tsedu added that one of the problems was that the members required detailed information, which could not be included in the submissions, because of the short time allocated. The details Ms Mazibuko wanted were covered in the presentation.

Ms Mazibuko remarked that the presenters should not threaten the Committee with the Constitutional challenge. She pointed out that no matter how many times they would take a matter to the Constitutional Court, the Court would give time to rewrite the legislation, and Parliament would do so until it felt satisfied, and could even insert more stringent measures.

Adv Budlender replied that going back and forth was not the solution, as if the Committee was relying on extra time to correct the legislation then it would take years for the Act to come into operation, and 2010 and its attendant problems was around the corner.

Mr M Sulliman (ANC, Northern Cape) remarked that the Committee would not simply take the presenters’ word for it that all clauses highlighted were indeed unconstitutional. Ten lawyers were bound to come up with ten different interpretations and the State Law Advisors were arguing that the clauses were constitutional.

Adv Budlender replied that equally the Committee should not simply take the word of the State Law Advisors. He suggested that these opinions be corroborated by independent attorneys or advocates who were constitutional experts, to get an independent unbiased opinion.

Ms Mazibuko noted that the presentations did not have any proposed suggestions. She asked what exactly the presenters wanted, so that the Committee could advise what it wanted, and in  the process they could probably find a middle compromising ground.

The Chairperson asked for their proposition on the difficulties around distribution of explicit photographs via cellular phones.

Adv Budlender replied that this was in the domain of the cellular phone network operators.

Freedom of Expression Institute (FXI) Submission
Mr Simon Delaney, Attorney representing Freedom of Expression Institute, said that he would not repeat the points already made, in the interests of time-keeping.  He would begin the presentation from the point classification system. He pointed out that not only did Section 29 criminalise publications which amounted to propaganda for war, incitement to imminent violence and advocacy of hatred (which were not also protected by Section 16(2)) but it also covered exemption for bona fide material such as documentaries. He said that it was disturbing that the Bill removed exemptions for publications that amounted to bona fide discussion. According to the Bill, all publishers had to submit, for classification, material that contained presentations or descriptions of sexual conduct. This was too censorious. The Bill required all material that fell foul of the offending publications to be submitted for classification. Potentially this meant all magazines and articles and literature. This provision was against the principle that regulation should operate only once a complaint was received.

The Bill introduced a new classification called ‘refused publications’ which he submitted was utterly draconian. He argued that on the surface the requirements seemed reasonable, but on deeper examination they were arbitrary. The FXI was also troubled by the proposed repeal of Section 21 which meant that the rights of people affected by the Board’s decisions to administrative justice would be adversely affected.

New Section 24B (2) introduced a new offence, and this potentially violated the constitutional expression, association and movement. This was even more dangerous for the journalists as the subsection forced them to reveal confidential sources of information. Section 24B(5) was unconstitutional, in so far as it imposed a reverse onus on the accused.

In conclusion he said that if the Bill was passed it would render the work of the Press Council redundant. The Bill was also going to tarnish South Africa’s reputation as the home of free and independent media and could scare away potential investors.

Cellular Network Operators: Joint Presentation
Mr W Ngwepe, Regulatory advisor, Vodacom, apologized on behalf of Cell C, who could not make an appearance, but he informed the Committee that the presentation was a joint effort by the three network operators. He pointed out that the operators were in full support of the content regulations. They, nevertheless, wanted to use this opportunity to provide an industry perspective.

He said that there were many ways in which a subscriber could access content, and the content could be requested over various delivery methods. All the various parties played a role in the development, advertising and delivery of services of which adult content was a portion. The network operators, however, had areas which they could not control, such as the internet,  and they had only partial control over wireless access (WASPS).

He then went on to the proposed definition of chat room and said that this did not include SMS and MMS services. In addition the network operators were requesting more clarity over the requirements on a moderator, constitution of the classification committees and criteria of appointment, and the capacity of the classification committees. They were also putting up a proposal for co-regulation. They proposed that the Review/Appeal power to remove should have restrictions and also proposed that the exemptions should be expanded to include all other publications.

Mr Ngwepe wanted to find out if it was the intention of the legislator to exclude virtual operators, regardless of technological safeguards to restrict access.

The network operators also commented on the co-ordination between statutory and self regulation and proposed the establishment of a co-regulatory framework which recognized self regulatory bodies.

In conclusion he said that the operators appreciated the opportunity to make an input and re-emphasized a co-regulatory approach, with new provisions that did not unduly harm the industry.

Discussion
Mr Tolo thanked the presenters. He noted that a lot of the presentation was technical, and he was not sure he could engage on a technical level. He thought the co-regulatory idea was good. Mr Tolo asked what damage it would have to the industry if the Bill was passed as it was.

Ms Mazibuko remarked that the cell operators were not opposed to the Bill. She then asked if they were in support of a self regulatory body as it would be easy for these bodies to set their own parameters. She also wanted to know how workable the proposition for the co-regulatory bodies was, especially when trying to create umbrella regulations.

Mr Ngwebe replied that the network operators were proposing a co regulation system as opposed to the current self regulation. Under the Bill the FPB would perform the regulation. The operators  were sceptical about the practicality of this, considering the volume of material available, and therefore were of the opinion that FPB would not be able to manage. It would be better to leverage the existing measures and allow self classification, but subject to co-regulations. This would mean that they would take their current regulations and the FPB’s regulations, and combine them in a way that would satisfy the FPB on day to day classification. If the FPB did have the capacity, then this would be understood, but they were willing to explore this route. Self regulation did not imply that the industry would follow no rules, nor that it would not apply correct procedures.

Ms Mazibuko asked the operators, in regard to their opinion that MMS and SMS were not chat rooms, what was then their proposal.

Mr Ngwebe replied that the key issue was to differentiate private conversions between people and conversion in the chat rooms. The definition the network operators proposed was that a chat room be defined as a website where people could send messages over real time, sending either  to all people at the same time or exclusively to one person. SMS and MMS did not constitute a chat room,  because if one sent an SMS or MMS and the recipient replied in the same mode this was in the realm of cyber communication, and they could not interfere in the exchange. 

Ms Louina Nunan, Senior Legal and Regulatory Advisor, MTN, added that chat rooms were supposed to have a moderator and there was the question of whether the Committee wanted to moderate discussions, which was to some extent impractical.

Ms Mazibuko asked whether, with the development of cell phones, it was possible to find people accessing the exact kind of material the Committee was trying to regulate,  especially where the children could record and send explicit material via their phones.

Ms I Moerane, Regulatory Advisor, Vodacom, replied that certain operators had measures where parents could actually block access. As much as parents could block cell phones, many children today were pretty smart and could easily unblock those cellular phones. Mobile operators were trying their best to make sure that children did not get access to unsuitable material by giving parents the power to limit access to the material. They should also note that as much as pornography was a national issue it was also a parental issue.

Mr Tolo remarked that the challenge was that a majority of the parents were technologically illiterate.

The meeting was adjourned.