Child porn amendment fazes censors

Jahmil XT Qubeka. (Madelene Cronje, M&G)

Jahmil XT Qubeka. (Madelene Cronje, M&G)

The Film and Publications Board (FPB) couldn't have contrived it better if it were the publicity company for director Jahmil XT Qubeka's movie Of Good Report – not only did they make what looks like a dodgy decision, on the basis of a dodgy law, it also announced it at the last possible minute. And this was the opening-night premiere of South Africa's most high-profile film festival: it was bound to cause a stink.

Since then, there have been cries of censorship and repression akin to those directed at the Protection of State Information Bill. Qubeka ­himself, with the flair for the dramatic that is also evident in his film, taped his mouth shut to mime the fact that his freedom of expression was being curtailed.
There is a strong view that this is a constitutional matter and should go to the highest court in the land.

That is so, but the FPB was only acting in terms of the law. It's the law that is at fault, primarily, though the board has also ignored key precedents that will make it easier for its decision to be overturned if it goes to court, or even before the FPB's own review board.

As constitutional scholar Pierre de Vos pointed out at the weekend, the FPB is acting as though there is no precedent here, no history. But there is: first, in the case of De Reuck v Director of Public Prosecutions (2003), and the 2008 banning (or refusal to give a certificate allowing exhibition) of XXY, a movie that was due to be shown at the Out in Africa Gay and Lesbian Film Festival.

The Of Good Report case, today, replicates the XXY case very neatly. XXY was banned on precisely the same grounds – and then the ­banning was overturned by the review board in 2009.

In De Reuck, the late Pius Langa, then a Constitutional Court judge, reaffirmed the classic distinction between material produced for ­"aesthetic" versus "erotic" effect; if the former effect is dominant, the material is permissible (though ordinary adult porn is also permissible, subject to the relevant restrictions). He assumes that "a publication which contained child pornography had to have, as its purpose, the stimulation of sexual arousal among its target viewers through explicit visual depiction of any of the … prohibited acts".

This is precisely the area in which the law being applied in the case of Of Good Report gets fudgy, and not surprisingly because this piece of law changed the definition of child porn, making it very vague, and explicitly refused the implication of the Langa judgment in the case of child porn. This was the 2009 amendment to the Film and Publications Act of 1996.

The 1996 Act was the first to bring South Africa's publications regime in line with the new Constitution. It was a minimal piece of legislation, as anti-censorship as possible. It made it the state's duty to classify material so that citizens could make up their own minds, rather than simply act as a gatekeeper on people's consciences. A small amount of material (child porn, depictions of bestiality, rape) was explicitly restricted in its entirety.

Yet the law under which Of Good Report was banned (that is: it cannot be shown, in any way, in South Africa, and to possess a copy is a crime) is the 2009 amendment to the 1996 Act. This amendment was the one with controversial provisions for the submission of all sexually related material for classification, by all publishers or broadcasters, including newspapers, to a classificatory board. After a strong effort by the South African National Editors' Forum and others, an exception was specifically made for newspapers.

But the rest of the amendment went through Parliament and was signed into law. Much of it refines the administrative and legal machinery of the publications regime, but it is also deals with child pornography in the internet age.

In fact, it is clear from documents published on the FPB site at the time the Bill was receiving public comment that the primary driver, the board's then chief, Dr Iyavar Chetty, was in some way to curb the spread of child porn and, indeed, paedophilia.

Chetty saw pornography, paedophilia, sex trafficking and a range of other activities as part of one great web of crime, and the tone of his denunciations of this global evil were those of "moral panic". He published a huge amount of material on the FPB website denouncing child porn, or what he would prefer to call "child abuse materials", giving much evidence of the horror of child abuse – which was indeed horrifying, but had nothing to do with the law on publications.

Still, this was Chetty's justification for the amendment on child porn. He explicitly said that he was unhappy with the Langa judgment in De Reuck because it did not address child porn or "child abuse materials", where literary or other merit was, in Chetty's view, irrelevant. So is the "intended" audience, because any likely piece of material can be used by paedophiles to "groom" victims.

The amendment to the Act broadens the list of transmission technologies to include the internet, games, compact discs and so on, and the newly crafted definition of child porn is as broad as possible. In fact, it's so all-inclusive as to seem absurd.

It prohibits the exhibition of anyone under 18 (though the age for sexual consent in South Africa is now 16) or who is presented as being under 18, in any form of any image, regardless of how it was created, or any verbal description, of a real or imaginary person "engaged or involved in any form of sexual activity … participating in or assisting another person to participate in any form of sexual activity, or … any picture which shows, or any writing which describes, the body or any part of the body of a real or imaginary person under the age of 18 years in circumstances that amount to sexual exploitation or in a manner that makes it capable of being used for the purpose of sexual exploitation".

That covers a very wide range of depictions. It certainly covers hundreds of movies and books already released without murmur in South Africa, let alone what is available on the internet and which no army of Dr Chettys is ever going to be able to police.  

And, even if the FPB was able to police all these instances of possible contravention of the Act, would it serve the purpose for which the law was designed? No. The Chetty amendment is what one could call burka logic: ban the sight of a woman's body and the lust for women's bodies will vanish. Ban all images that refer in any way to child abuse, even if they show its horror, and child abuse will stop. This doesn't make sense. The men who have raped children in the weird belief that such an act can cure Aids were not inspired to do so by nonexplicit movies shown at film festivals – or even at mainstream cinemas.

Whatever happens in the specific case of Of Good Report, the furore about the banning of Qubeka's film will hopefully shine some light on the Chetty amendment to the 1996 Act, exposing its flaws as law. It should have been taken to the Constitutional Court ages ago, where it would have been thrown out. Now, clearly, it's time to climb that hill.

Shaun de Waal is the editor of the M&G Comment & Analysis section

Shaun de Waal

Shaun de Waal

Shaun de Waal has worked at the Mail & Guardian since 1989. He was literary editor from 1991 to 2006 and chief film critic for 15 years. He is now editor-at-large. Recent publications include Exposure: Queer Fiction, 25 Years of the Mail & Guardian and Not the Movie of the Week. Read more from Shaun de Waal

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