Films and Publications Amendment Bill [B37-2015]: briefing

Meeting report

Films and Publications Amendment Bill: briefing by Department of Communications (DoC)
Mr Collin Dimakatso, DoC Chief Director: Broadcasting Policy, said the Films and Publications Amendment Bill seeks to amend the Act so as to align the definition of child pornography to the definition in terms of the Constitutional Court judgment in the case of De Reuck v Director of Public Prosecutions 2004 (1) SA 406 CC. It also gives effect to the constitutional amendments of section 16(2)(a) as instructed by the Print Media South Africa and Another v Minister of Home Affairs and Another (CCT 113/11) [2012] ZACC 22 judgment and provide for an effective penalty regime in support of, amongst others, the co-regulation approach.

- Clause 1 amending Section 1 of the Act inserts and amends certain definitions including:
‘‘artistic’’ has been revised to mean predominantly aesthetic accordingly to the reasonable person;
‘‘child pornography’’ has been revised by the deletion of the words ‘‘includes’’ and ‘‘or in such a manner that it is capable of being used for the purposes of sexual exploitation’’.
‘‘distribute’’ has been revised with the addition of the words ‘‘game’’ and provision for streaming content.
“digital film” and “digital game” have been added;
“hate speech” has been added to mean any speech, gesture, conduct, writing, display or publication which is prohibited in terms of section 16(2) of the Constitution, which propagates, advocates or communicates words against any person or identifiable group, which words could reasonably be construed to demonstrate a clear intention to be harmful, to incite harm and promote or propagate hatred against the said person or identifiable group;’’

“magazine” has been added and includes an online magazine;
 ‘‘online distributor’’ has been added to include distributors of films, games or publications online through the internet or other electronic medium.
“publication” has been revised to include ‘website’,
‘‘sexual conduct’’ has been revised by the deletion of ‘male’ with reference to genitals, and the addition of ‘anus, vagina, testicles and penis’;
“social media” has been added and includes the various online technology tools and forms of electronic communication via the internet, such as websites for social networking and micro blogging through which users create online communities to share information, ideas, personal messages and other content.

- Clause 2 amends the heading of Chapter 2 to align it with the contents of the Chapter.

- Clause 3 amends section 2 (Objects of the Act) by the addition of section 2(d) which criminalises the possession, production and distribution of child pornography in order to extensively provide for the protection of children against child pornography; and the insertion of paragraph (e) in order to create offences for noncompliance with classification decisions of the Board.

- Clause 5 amends section 6 of the Act with the inclusion of the Penalty Committee regarding its membership requirements and appointment thereof by the Minister.

- Clauses 7, 8 and 9 amend sections 7, 8 and 9 of the Act with the inclusion of reference to the Penalty Committee.

- Clause 10 of the Bill amends section 9A of the Act by making provision for accreditation of foreign classification systems, the conclusion of foreign distribution agreements and the exemption of online distributors from the pre-distribution classification requirements in relation to films, games and publications.

- Clauses 11, 12, 13 and 14 amend sections 11, 12, 13 and 14 of the Act, which deal with administrative support, remuneration, expenditure and the annual report respectively, have been amended with the inclusion of reference to the Penalty Committee.

- Clause 15 amends section 15A of the Act in order to clarify the manner in which compliance officers must act upon entering premises and further makes provision for the deployment of police officers.

- Clause 16 amends section 16 of the Act for magazines and any other advertisement falling within the jurisdiction of the Advertising Standards Authority of South Africa are exempted from the classification. Section 16(4)(b) has been revised to refer only to ‘‘explicit violent sexual conduct, bestiality, incest, or rape, explicit infliction of domestic violence, explicit visual presentations of extreme violence’’. This section no longer includes child pornography or material classified as ‘‘X18’’.

- Clause 17 amends section 18 of the Act. Section 18(3)(b) has been revised to remedy its vagueness which resulted in the provision being deemed unconstitutional. As a result it only makes reference to ‘‘explicit violent sexual conduct’’ in order to distinguish the ‘‘XX’’ category from the ‘‘X18’’ voluntary sex category. This subsection further omits child pornography from the exemption. Section 18(b) was amended to exclude broadcasters which are subject to the regulatory authority of the Independent Communications Authority of South Africa (ICASA’). Streaming content through the internet is not regarded as broadcasting and to this end subsection (7) has been inserted.

- Clause 18 deletes Sections 18A and 18B of the Act dealing with the display of classification decisions and re-classification.
 
- Clause 19 inserts these new sections:
• New section 18C makes provision for independent classification of digital films, games and publications by online distributors who are registered with the Board.
• New section 18D states the Board may recognise a foreign classification system upon application by an online distributor, subject to alignment of the foreign ratings to the Board classification guidelines and payment of the prescribed fee.
• New section 18E allows members of the public to lodge complaints with the Board about unclassified, prohibited content, or potential prohibited content distributed online. The Board may issue a take-down notice, a service-cessation notice or a link deletion notice. In the event that such content contains child pornography, the Board must refer the matter to the South African Police Service or relevant hotline in the country concerned, where the content is hosted outside the geographical boarders of South Africa.
• New section 18F prohibits a person to distribute private sexual photographs and films in any electronic medium including the internet and social networking sites without the consent of an individual who appears in the photograph or film with the intention of causing that individual distress. The only circumstance under which such disclosure may be made is where it is necessary for the purposes of preventing, detecting or investigating crime.
• New section 18G prohibits a person to film and distribute in any electronic medium including the internet and social networking sites any films or photographs depicting sexual assault and violence against children.
• New section 18H prohibits a person to distribute in any electronic medium including the internet and social networking sites, any film, game or publication which advocates propaganda for war, incites violence, or advocates hate speech.
• New section 18I states that only content which has been classified may be distributed in South Africa and it must clearly display the classification decision.
• New section 18J allows members of the public to apply for a less restrictive classification for content after a period of two years from when the content was initially classified. Further, any aggrieved member of the public may apply for the reclassification of content and the distributor will be afforded the opportunity to make representations in response.

- Clause 21 amends section 19: The Minister was being removed as a potential complainant and appellant in light of the fact that it is the same Minister who appoints the Appeal Tribunal and the Council, which in turn appoints the chief executive officer in consultation with the Minister. A distributor who is a member of an industry classification body cannot appeal decisions of that body to the Appeal Tribunal. In the event that the Board imposes a more onerous classification upon application for reclassification, as envisaged in the new section 18(g), then the distributor may appeal to the Appeal Tribunal.

- Clause 23 amends section 24 of the Act by adding a new subsection (3). In terms of clause 23 ‘‘X18’’ material may be distributed online by a registered distributor provided that the Board was satisfied that the distributor has mechanisms in place to ensure that the material will not be distributed to children under the age of 18 and the classification details are clearly displayed throughout the screening thereof. Further, the distributor must keep a register of all users and the register must be made available to the CEO where he has reason to believe that the distributor is in contravention of these conditions. The exemption afforded to the distributor may be suspended for a maximum period of 12 months where the distributor is found in contravention of this section.
• Section 24A(1) specifies the maximum fines and the maximum period of imprisonment has been extended to eight months.
• Section 24A(2) exempts broadcasters which are subject to the regulatory authority of ICASA and newspapers, magazines or advertisements which are subject to the regulatory authority of the Press Ombudsman.
• Section 24A(3) now makes provision for material which would have been classified ‘‘X18’’ had it been submitted for classification and further provides for the monetary amount of the fine.
• Section 24A(4) omits the exemptions for science, literary or artistic merit and aligns it with the provisions of section 18 with the addition of the phrase ‘‘which would have justified an ‘‘X18’’ classification’’.

- Clause 25 amends section 24B of the Act and the maximum fines and the maximum period of imprisonment for offences relating to possession of films, games and publications have been specified.

- Clause 26 amends section 24C and the maximum amount for the fine for the offence relating to child-oriented services.

- Clause 27 introduces:
• New section 24D states that any person who provides the Board with false information on its online system will be guilty of an offence and liable upon conviction to a maximum fine of R15 000 or imprisonment for a maximum period of six months, or both.
• New section 24E provides that any person who knowingly distributes private sexual photographs and films without the prior consent of the individual appearing in the said films and photographs with the intention to cause such individual distress shall be guilty of an offence and liable upon conviction, to a fine not exceeding R150 000 or to imprisonment for a period not exceeding two years or both.
• New section 24F provides that any person who knowingly creates, produces or distributes in any electronic medium, including the internet and social networking sites, any film or photograph which contains depictions or scenes of sexual assault and violence against children, shall be guilty of an offence and liable upon conviction, to a fine not exceeding R150 000 or to imprisonment not exceeding two years or both.
• New section 24G provides that any person who knowingly distributes any film or game which advocates propaganda for war, incites violence, or advocates hate speech shall be guilty of an offence and liable upon conviction, to a fine not exceeding R150 000 or to imprisonment not exceeding two years or to both.

- Clause 28 amends section 27A and provides that an internet service provider must reveal the details of a person using such service to advocate racism and hate speech.

- Clause 30 amends section 31(1)(b) adds the words “Penalty Committee” to that section and section 31(3)(b) removes the reference to the “Board” and replaces it with “Council” which shall be responsible for publishing the classification guidelines in consultation with the Minister.

Discussion
The Chairperson said the Bill did not specify when the process was coming from and asked whether public participation was done. He asked why magazines were excluded in classification and why the Minister was removed as a potential complainant.

Ms P van Damme (DA) said in terms of rule 249 of the National Assembly, public consultation must be done on a Bill that has implications for many industries and must be subject to thorough consultation. There was consultation on the policy but not on the Bill. She asked why public consultation was not done prior to the draft Bill being introduced in Parliament. She welcomed amendments on child pornography and revenge porn need to be tightened. The Minister appoints the Council. The Penalty Committee must be completely independent rather than being appointed by the Minister that could end up being used as a political hit squad especially during elections. The Penalty Committee must be appointed by Parliament. The fact that the Penalty Committee cannot make a decision unless representation has been made to the CEO opens the door for abuse and creates the impression that the chief executive officer could be used to further a political agenda. It seems the FPB was trying to usurp the powers of ICASA on amendments that ICASA may not renew licences of broadcasters. ICASA was a constitutionally established body and FPB was not supposed to usurp its powers.

Ms M Shinn (DA) said the definition of “artistic” needs to be reworked. She asked about international best practice that was consulted about online content regulation. She asked if child NGOs and experts were consulted in the drafting of the Bill. People who qualify to work in the Penalty Committee must have experience working on children’s rights. The ten years’ experience required for people working on the Appeal Tribunal was too much. The Council must be independent from political and commercial interference, not just stating it was independent. The provision about entering people’s premises to extract material did not specify if a court order was needed.

Ms F Nkadimeng (ANC) said the Director General should have indicated if public hearings were done before and if the public was asked to submit any suggestions.

Mr Norman Munzhelele, Acting Director General: Department of Communications, replied that the process of the Bill started in 2012 and a number of studies were done while developments also happened with the ruling from the Constitutional Court. Home Affairs and FPB did public consultation. Members of the industry made representations. A task team consisting of independent experts also assisted the process with the involvement of state law advisors. The Bill was approved by Cabinet in August 2015. If the Committee in its wisdom want to further consultations, it can do so to enrich the process. Suggestions on tightening definitions were welcome.

Mr Sipho Risiba, Chief Operations Officer: FPB, replied that according to the current Act, the council members were appointed by the Minister. There was nothing new that was being introduced, but they have introduced the Penalty Committee. In the current Act, the penalty regime only worked to refer every offence to SAPS for investigation and prosecution. There were administrative offences that can be dealt without referring the matter to SAPS or the judiciary, for example, the wrong age classification by a cinema. He felt that members were reading into provisions things that were not there, for example, that the Penalty Committee will not make a decision without the input of the CEO. The section that refers to that says the FPB must make representation before the Penalty Committee and the CEO decides who to delegate the authority. ICASA and FPB as regulators have an overlapping mandate and this was the same as with child pornography with SAPS. Broadcasting was for ICASA while online streaming was for FPB. No attempt was being made to usurp the powers of ICASA, in the same way the sections that refer to SAPS do not usurp the powers of SAPS. He does not think the appointment of council members by Parliament was feasible. The ten years’ experience of the Penalty Committee was necessary for the credibility of decisions and the person to chair this was an advocate or magistrate with more than ten years’ experience. FPB had done a study on penalty regimes and did a benchmark on the appropriateness of the fine. In terms of the current Act, somebody was supposed to consent to paying a fine and be fined R2000. In expressing seriousness in combating illegal activities, penalties must be harsh and act as a deterrent.

Adv Lufuno Nevondwe, FPB Council Member, replied that regimes consulted included Australian, British and American regimes on regulation of distribution of online content. Ten years’ experience in law practice was for the chairperson of the Penalty Committee, practicing as an attorney or academic. The Penalty Committee was comprised of people outside of FPB. The FPB remains independent as guided by the Act.

Ms R van Schalkwyk (ANC) said it was important to include 10 years’ experience for the chairperson of the Penalty Committee in the Act. FPB was advised to include sexual orientation and citizenship in clause 24(g). The Committee must be furnished with a summary of the public participation process done in 2012.

Mr M Kekana (ANC) thanked FPB for a job well done in coming up with amendments. R150 000 for people who post sexually explicit material online was too little and must be increased to R250 000 and two years to five years.

The Chairperson said public participation will be a parliamentary process and was no longer the responsibility of the FPB.

Ms V van Dyk (DA) asked if clause 17(d) was constitutional in terms of section 190 of the Constitution. Broadcasters may share online a video on demand to the public. Given that sharing content was not broadcasting, she asked if the Bill bars broadcasters from sharing videos online.

Ms D Tsotetsi (ANC) asked there was a code of ethics expected for members of the appeal committee and if they were subject to vetting. She asked if films were censored before being published.

Ms Van Damme said the Penalty Committee must be truly independent as the Minister already had a lot of powers in the Bill. She asked what was considered as child pornography. The distinction between broadcasting and streaming was artificial.

Ms Shinn said the Penalty Committee must be independent from political and commercial interests. The Council must consist of a person with experience on children’s rights. She asked if raiding of houses alleged to be conducting filming of explicit material would need a court order.

Ms O Matshoba (ANC) said public participation must be a priority. She asked what FPB can do to minimise the uploading of sex videos online.

Mr Dimokatso replied that the Bill was now in the hands of the Committee and it was the one to facilitate public participation. There was need for media literacy to educate on media convergence especially in schools. When the Act was first passed, there was no media convergence and broadcasting was conventional broadcasting as known from old. Shooting a video and sharing a video online was now broadcasting and broadcasting was no longer being done in a linear way. ICASA deals with broadcasting issues as in the current definition of broadcasting. The ICT review process was looking at what was broadcasting in 2016. There was a regulatory forum in the DoC and FPB and it deals with issues that have an overlapping mandate. FPB was not going against section 192 which governs the operations of ICASA.

Adv Nevondwe replied that the definition of child pornography was guided by the Sexual Offences Act and Constitutional Court judgments even though it was not easy to define. The FPB had moved from being a censor body during apartheid to a classification body. The content that was broadcast needed to adhere to the norms and values of society. Council members were subject to vetting and security clearance.

Mr Risiba replied that section 62 of the Constitution gives the right to freedom of choice, but subject to limitations except for the right to life, which does not have limitations. The FPB endeavours to protect children from being exposed to explicit material.

Mr L Mbinda (PAC) said the Committee must appreciate the work done by FPB as it was much hard work.

The Chairperson said the Committee will go the route of public hearings as it was dealing with a sensitive matter that affects people who use the social networking space. The Committee appreciates the work done and it welcomes the report on the work done.

The Chairperson asked to discuss the procedure on calling for public hearings.

Ms van Damme replied it can be in the form of adverts or press statements, then the Committee can call for submissions.

The Chairperson asked for the difference between the Committee advertising and requesting written submissions and that of going to communities to hear from them.

The Committee Secretary replied that the Committee will advertise and call for written submissions. After the closing date, the committee secretary and the content advisor and researcher look at the submissions, summarise them and look at which are relevant and invite those who would like to make oral submissions. It was up to the Committee to have public hearings at Parliament or go to communities.

The Chairperson said since it was dealing with a sensitive matter, it was wrong to assume that all people would be able to make it to Cape Town to make oral submissions.

Mr Kekana said he supported going to provinces and asked if the Committee had the luxury and resources to spend nine days to go to each province and engage communities on this issue.

The Chairperson said the matter would be left to the secretariat to put together a program of action on what the Committee will do.

Mr Kekana said all adverts for vacancies and notices for public hearings must be advertised in community newspapers.
 

The Committee adopted the committee minutes of 16 February 2016.

Meeting adjourned.