Let us not ask what the government, or to be more precise Deputy Home Affairs Minister Malusi Gigaba, really wanted the Films and Publications Amendment Bill to achieve when he approved it for tabling in Parliament.
Let us stick instead to the more readily discernible facts: what they said they wanted it to achieve, and the mechanisms the Bill proposes. The explanatory memorandum to the Bill is confusing.
The regulatory environment, it says, must serve the core objective of “protecting children from potentially disturbing, harmful and age-inappropriate materials … since child pornography exists everywhere there is a computer, a modem for access to the internet, and a mobile cellular telephone”.
Setting aside the confused grammar, this suggests a fundamental ambiguity. Is the Bill designed to protect children from perfectly legal, but “age-inappropriate”, depictions of violence, discussions of reproductive health, and pornography, or is it designed to protect them, and everyone else, from child pornography, which is already illegal?
The language of the Bill itself is clearer. It wants to do both, and therein lies the problem. We have laws to deal with the sexual exploitation of children that is involved in making child pornography. We have other laws that outlaw the possession and distribution of child pornography. If they are not working then it is legitimate to ask whether those laws are defective, and need improvement.
We have other laws that regulate the distribution of hardcore pornography, and again, if they have been rendered inadequate by the advent of the internet and the “mobile cellular telephone”, they may need revision.
There is no question that regulators globally are struggling with the impact of new modes of distribution both in the child pornography underworld, and the legitimate sex industry. South Africa is not isolated from international trends, nor are our lawmakers any more likely than their international counterparts to contain the proliferation of technical mechanisms for accessing content of all kinds — sexual, violent, subversive, or just rude.
In any event, the Bill tries to do far more than that, imposing a sweeping new censorship and classification regime that puts free speech at the mercy of the state. As it stands, the Bill would expose a huge swathe of expression, ranging from news stories with sexual content to violent computer games, to the whims of the censor.
To hitch a mechanism for this kind of control to moral outrage over child pornography, implying that to oppose the Bill is to lend support to paedophiles, was a ludicrous gambit, and it has not worked.
The government, it seems, has realised that the Bill is probably unconstitutional, and it is now seeking an accommodation with publishers that will enable a modified draft to go through Parliament some time in the new year.
That is a welcome development, even if it suggests that Parliament is not able independently to deal with the problems in the legislation before it. We should be clear however that “compromise” on the Bill does not mean any compromise on free speech, or an expansion of the classification regime beyond the principles that currently underpin it.
Legislation should be updated to take account of technological change, not to rewrite constitutional principles.
Whitewash
CEO Dali Mpofu appears to be a fundamentally decent man who seemed, on his appointment, to be genuinely concerned about journalistic standards and ethics at the SABC and wanted to introduce a new editorial regime.
Mpofu promised a transparent investigation of claims that news department boss Snuki Zikalala had blacklisted certain political commentators, and that “heads would roll” if the investigators found evidence of blacklisting. The report, as the Mail & Guardian reveals today, makes no bones about Zikalala’s rampant interference in editorial content, his refusal to air the opinions of such respected figures as author and activist Elinor Sisulu, analyst and businessman Moeletsi Mbeki and analyst Aubrey Matshiqi, and his iron autocracy in the news department, to the detriment of SABC journalists’ effectiveness and morale.
But lawyer Gilbert Marcus and businessman Zwelakhe Sisulu’s scathing report will not be made public and heads will not roll. In response to their 78-page document, the board has released only a seven-page statement leaving out most of the important detail.
Such a crude whitewash was bound to fail, to the extent that someone was bound to leak the report. But the attempt to stifle a document of such fundamental public importance manifests contempt for the interests of the millions of South Africans who watch and listen to the corporation’s broadcasts.
The board seems to think they are proprietors when in fact they are caretakers, charged with ensuring the SABC performs according to its statutory mandate. They have no right to override and suppress the findings of an investigation with a profound bearing on the service the corporation provides. Remember, they represent you and me. When next their terms come up for renewal, we should boot them out.
The SABC board has done itself the triple disservice of missing an opportunity for improvement, appearing the heavy-handed censor — and heightening public interest in the report. Shame!