The FPB also promised on Tuesday to rate the infamous painting by Friday.
During the meeting convened to hear responses from City Press and the Goodman Gallery – but which was delayed at the last second to include representations from a complainant – the board said it did not have jurisdiction over newspapers, but rejected arguments that it similarly has no jurisdiction over art, cannot control the internet and that the painting no longer exists in its original form.
“Galleries are not areas prohibited from children,” said board chief operations officer Mmapula Fisha, who was chairing the meeting. “We feel that it really is our duty to classify that portrait.”
The organisation’s CEO, Yoliswa Makhasi recused herself from the matter last week, after saying (via a now-deleted Twitter account) that newspapers were trying to bar the board “from publishing the classification decision”, a decision that has officially not yet been made.
The meeting saw a lengthy exposition on the artistic meaning of The Spear by advocate Matthew Welz on behalf of the Goodman Gallery, with a special focus on the use of genitals.
“It is not a penis designed to titillate. It is a penis that is part of a political statement,” said Welz, arguing that artist Brett Murray uses copulation as a metaphor for betrayed trust and a corrupt political elite usurping struggle ideas.
“If we say the committee should allow these views to stand,” asked FPB legal manager Sipho Risiba in response, “what message are we sending to the entire population? … Are we then not opening the floodgates to allow criticism of our political leaders?”
Risiba, who had earlier asked whether one political party mocking another does not constitute hate speech and whether newspapers have a right to go against the pronouncements of government, said Welz had misunderstood the question, after being accused of trying to gag political speech.
“I hope that we are not opening the floodgates, but that we are not closing floodgates that have been open for years,” Welz told him.
At least one complainant has asked that the painting be rated X18 because it is “harmful psychologically”.
If the painting were a magazine or video, such a rating would limit it to be distributed only in adult shops specifically licensed to carry sexual material. But what that – or any rating of age-appropriateness – would mean in reality is far from clear, especially after the board confirmed it held no sway over newspapers.
“The FPB has always been aware that the complaint that related in particular to City Press is not within our jurisdiction,” said Fisha, after lengthy arguments, which featured Risiba questioning whether a newspaper’s website does not fall within the FPB’s ambit, before being pointed to a specific legislative clause excluding such websites from its purview.
That means any newspaper or newspaper website would be allowed to publish an image of the original painting regardless of the rating the FPB assigns to it. Complaints about that would have to be referred to the press ombudsman after publication.
A rating may require the gallery or other South African websites to remove pictures of the painting, but Welz argued that would be illogical, given that foreign websites would still carry it. Though the board may theoretically have jurisdiction over local websites, it traditionally only provides age-appropriateness classification of movies and computer games, and has no capacity to enforce warnings of graphic content in other settings.
Any rating would also be open to judicial review. Representatives for both Goodman Gallery and City Press argued the FPB would be overstepping its authority considerably in considering artistic work that constitutes neither pornography nor hate speech.
Several procedural irregularities also emerged, on top of the unusual urgency with which the board has sought to conclude its rating. Fisha said neither the reviewers who will be classifying the painting nor the complainants who had initiated the ruling may be named.
Last week the FPB said it had not yet constituted a panel of classifiers for the painting, but on Tuesday it identified five classifiers – who had visited the gallery to view it in context before it was vandalised – as the panel. Fisha said it was already in the process of conducting a classification.
After initially confirming it had received only one complaint form about the painting – and finding it did not mention City Press – the FPB produced a second complaint form which did mention the newspaper.
“We wish to place on record our disquiet that things don’t seem to quite add up,” said advocate Steve Budlender, acting for City Press.