The draft Films and Publications Amendment Bill goes far beyond banning child pornography, the Freedom of Expression Institute (FXI) said on Thursday.
It seeks to amend the Films and Publications Act in a manner far broader than this objective, FXI executive director Jane Duncan told the National Assembly’s home affairs committee during public hearings on the Bill.
”In fact, if the Bill goes through in its current form … a wide range of material will be banned or restricted.”
The FXI is especially concerned at the potential to ban or restrict political speech, she said.
Less restrictive means could be used to achieve the main objective — protecting children from harmful content and outlawing child porn.
”Numerous self-regulatory instruments are available, which 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.
”The underlying principle is that the state does not have the right to decide what its citizens should hear, see or read,” Duncan said.
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, with a government institution deciding whether such material could be made available, and if so, under what circumstances.
These provisions are censorious in the extreme, and cannot be passed off merely as innocent classification.
The Film and Publications 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 could also see it.”
As the Bill also cancels news media exemption, it will subject vital operations of the print and broadcast news media to the control of the Films and Publications Board, with disastrous harmful consequences.
The provision for publications to seek exemption is unacceptable, as this will amount to the media applying for a license to publish, which is unconstitutional.
”In addition to the distaste the media has for applying for a licence to publish, there is the unacceptable situation where a licence can be withdrawn by the Films and Publications Board, which would constitute bald censorship,” Duncan said.
Adequate and effective ways
Meanwhile, protecting children from sexual abuse and combating child pornography can be achieved without crippling the publishing industry, the Publishers’ Association of South African (Pasa) said on Thursday.
The rationale behind the draft Films and Publications Amendment Bill is ostensibly to introduce stringent legislation to combat child porn and sexual abuse of minors, Pasa chairperson Nhlanhla Ngubane and executive director Dudley Schroeder told the National Assembly’s home affairs committee.
In their presentation to the committee, Ngubane and Schroeder said these important objectives should not be conflated with the objectives of the principal Act.
”If child-protection legislation is inadequate, then amendments should be made specifically under that heading to counter sexual abuse and the depiction or promotion of sexual abuse,” they said.
The objectives of the Films and Publications Act were different.
The Act is primarily intended to classify audio-visual material to give consumers and parents a clear signal of what content is appropriate for which audience.
”Child pornography, or the depiction of sexual abuse of children, is never permissible for any audience.
”The issue is therefore not one of ‘classification’, but rather finding adequate and effective ways to eradicate this scourge.”
Introducing the objective of combating child porn into the Act would not only prove insufficient and ineffective, but would adversely affect the other important objectives of the Act.
Several of the draft Bill’s provisions militate against important values enshrined in the Constitution, such as freedom of expression and due process, they said.
”Under the guise of fighting child porn — which, with respect, cannot be done effectively by way of the amendments on the table — a whole series of measures are introduced, which will have a ‘chilling effect’ on creativity and freedom of expression by not only acting as a muzzle for the media, but also forcing them to operate in a climate of fear of prosecution.
”The objective to ensure the protection of children from sexual abuse and the depiction of disturbing, harmful age-inappropriate materials, among others, in publications, can be achieved without necessarily crippling the publishing industry by restricting the legitimate exercise of the right to publish as an inherent part of freedom of expression.”
Newspapers and daily or weekly periodicals should continue to be fully exempt from the operation of the Act.
Sexual abuse and the creation and distribution of child porn should be countered as part of an overall strategy for child protection.
The Act’s objectives should remain focused on classification, not censorship.
”The depravity of child pornography needs to be confronted head-on, but with adequate and effective legislation as part of child protection criminal law and enforcement.
”Important values of the Constitution, including freedom of expression and prohibition of searches without a warrant, may never be compromised,” Ngubane and Schroeder said.
‘Devastating’
Meanwhile, the National Association of Broadcasters (NAB) told the parliamentary committee on Thursday that if enacted in its current form, the proposed amendments to the Films and Publication Act would compel television stations to submit all their programmes to the Films and Publication Board for pre-screening.
Presenting the NAB submission to the committee, advocate Steven Budlender said certain clauses of the draft Bill would make broadcasting an impossible task.
He said clause 16 of the draft Bill would require anyone who intends to distribute any programme, including news bulletins, to first submit these to the board for examination.
”The effect of the Bill on news and current affairs programmes will be particularly devastating — it will mean a delay in the broadcasting of every news bulletin.
”This is plainly undesirable and plainly violates freedom of expression,” he said.
He said clause 22 (c) of the Bill, which places broadcasters under the jurisdiction of the board, is in direct conflict with the Constitution.
”The Constitution only allows Icasa [Independent Communication Authority of South Africa] to regulate broadcasting,” he said, adding that the board is not independent as required of a regulator in terms of the Constitution.
Budlender said the home affairs minister has ”almost complete control over the appointment, removal and salaries” of the board.
He told the committee that those clauses of the Bill that seem to violate freedom of expression are likely to be declared invalid by the Constitutional Court.
”This could have the consequence that important provisions which pursue the critical aim of preventing child pornography and hate speech are declared invalid because of their substantially overboard effect.”
NAB represents the interests of broadcasters, including the South African Broadcasting Corporation and e.tv.
Meanwhile, chairperson of the Independent Communication Authority (Icasa) Paris Mashile said the Constitution barred the board from regulating broadcast media.
”The Icasa Broadcasting Code already takes care of what may be broadcast — no other organ of state is constitutionally permitted to regulate broadcasting.” — Sapa