Parliament’s legal advisors on Tuesday joined media organisations in criticising certain provisions in the draft Films and Publications Amendment Bill.
Briefing the National Assembly’s home affairs committee, parliamentary legal adviser Refilwe Mathabathe said that if enacted in its current form, the Bill would see the Films and Publications Board (FPB) become a broadcast-media regulator.
”Section 192 of the Constitution recognises only the Independent Communications Authority of South Africa [Icasa] as a regulator.
”It would therefore be unconstitutional to bring broadcasters under the FPB,” she said.
Mathabathe also raised concern about section 16 of the draft Bill, saying if left unchanged, the provision compelled newspapers to submit all their stories to FPB before publication.
”This amounts to censorship,” she said.
FPB chief executive Shokie Bopape-Dlomo conceded the organisation would not have the capacity to go through all the newspapers stories before they were published.
”This was not the intention of the Bill; I think it is the wording in that section that has created a misunderstanding,” she said.
However, she disagreed it would be unconstitutional to allow the FPB to examine television programmes.
”Our view is that since Icasa’s role is mainly that of licensing, the FPB could complement that role by checking the actual content of broadcast material,” she said.
However, Mathabathe disagreed, saying Bopape-Dlomo’s interpretation of Icasa’s functions was ”too limited”.
”The Constitution states that Icasa should regulate in the public interest — this gives the regulator the power not only to issue licences but to deal with issues of content as well.
”The FPB does not have the authority to co-regulate with Icasa,” she said.
Designed to crack down on child pornography and abuse, the Bill is currently being deliberated on by the National Assembly’s home affairs committee.
Chairperson of the committee Patrick Chauke said because the Bill touched on the ”sensitive” issues of press freedom, the committee would have to tread carefully.
”We won’t rush, we will take our time and consider all the submissions and opinions before voting on the Bill,” he said.
‘Chilling effect’
Last week, the South African National Editors’ Forum (Sanef) and other media organisations renewed their call for several ”constitutionally objectionable” provisions in the draft Bill to be omitted from the final legislation.
In a presentation to the National Assembly’s home affairs committee during public hearings on the measure, Sanef representatives said these include the withdrawal from the principal Act of newspaper exemption and the classification of publications.
”Not only do the provisions in question endeavour to regulate expression on the basis of content, but they also constitute a chilling effect upon free expression, a serious threat to editorial independence and a step along a slippery slope, which is unjustifiable in principle and incapable of proper application in practice,” Sanef said.
Among other things, the Bill’s provisions mean that print and online media will have to submit all news reports containing descriptions of sexual assault, indecent assault and rape to the classification committee before publication.
”If one has further regard to the definition of ‘sexual conduct’, all articles on sexual intercourse, regardless as to whether they are educational, artistic or literary works, will have to be submitted to the classification committee.”
The same difficulty will arise in respect of any news report, photograph or article dealing with or depicting declarations of war, violent demonstrations, violent incidents or civil unrest, because of the requirement that descriptions of ”propaganda for war” or ”incitement to imminent violence” will have to be submitted to the publications committee for classification.
”The effect of these provisions is that expression deserving of constitutional protection will now be subject to governmental approval, contrary to the very tenets of freedom of expression,” Sanef said.
— Sapa