Films and Publications Amendment Bill [B37-2015]: public hearings day 1

Meeting report

South African Communications Forum (SACF) submission
Ms Loren Braithwaite-Kabosha, SACF CEO, acknowledged the Film and Publication Board (FPB) for the positive change to Internet Regulation Policy which reflected a realisation from the Board that the internet was a very complex instrument which would be almost impossible to regulate. She noted that there was a need to make a clear distinction between the distributor and the Internet Service Provider (ISP). She accordingly recommended that the definition of distribute be amended. She submitted that the FPB’s functions and powers were administrative in nature and that any criminal aspects should therefore be administered by the Department of Justice.

Ms Braithwaite-Kabosha submitted that “child pornography” under section 1 should be replaced by “child sexual abuse material”, a term which is increasingly being adopted in other jurisdictions as it brings clarity to the kind of image that may be deemed unacceptable and offensive. Section 15(A)(1A) should also be amended to curtail the powers of compliance officers. In the definition of hate speech, SACF proposed the deletion of certain words. Amendments were proposed with regards to sections 18(8), 18E, 18C, and 18D dealing with renewal of broadcasting licences by ICASA, complaints against content distributed online, independent classification body and approval of foreign classification systems, respectively.

Ms Braithwaite-Kabosha submitted that the SACF pledged its support to government in developing an appropriate Consumer Digital Literacy Programme that would focus on preventing exposure to and empower responses by parents, children, and civil society to cyber bullying, child sexual abuse, grooming for sexual abuse, privacy and the internet and other abuse of the internet.

Discussion
Mr M Kalako (ANC) sought clarity on the entities represented by the SACF and whether all these entities were in agreement with these recommendations.

Mr R Tseli (ANC), referring to the functions and powers of compliance officers, asked how these functions and powers could be curtailed to be aligned with the administrative nature of their duties. The phrase ‘curtailing power’ was so vague and ambiguous.

Ms Braithwaite-Kabosha responded that recommendations were a true reflection of the consensus of all stakeholders represented by the SACF. The submission was developed in a manner that included all views of all members. However, some members such as Facebook and Vodacom would be making their own submissions. On the question of curtailing power, she recognised that the FPB had statutory power allocated to it in terms of the principal Act whereby these powers were broadened in terms of the Bill. Some powers were entrusted to ICASA. Production of a warrant on search and seizure was essential and there should be a certificate of appointment to be presented by the compliance officer.

Emma Sadleir Social Media Law submission
The submission from Emma Sadleir, a social media lawyer, accompanied by Ben Winks and Elizabeth Harrison, focussed on revenge pornography, a term used to describe non-consensual sexual images posted on the internet. It was terrifying for a person to see sexual images of themselves posted on the net where everybody had access. Ten years ago, the state could control publications through regulations but now the control of publications had become very complex. People could have access to publication by use of their cell phones and people could be victims of over documentation, because people might be posting everything we do, where we go, what we eat, and what we wear. It had become the norm among teenagers to post nude pictures of themselves either on the net or share them via WhatApps. Some shared their pornography. All these problems were related to section 18F which prohibited any person to expose, through electronic medium, a private sexual photograph or film unless certain prescribed conditions were met. There was an emerging trend of sharing a private sexual photograph or film to a third party. This was scary because these pictures could end up on the internet where everyone could see them. Accordingly, section 18F dealing with Prohibition against distribution of private sexual photographs and films - should be amended to criminalise the sharing of explicit material to a third party without consent. Account should be given to whether the pictures, if shared, might cause distress.

Ms Sadleir proposed an offence defined as the non-consensual creation, possession, solicitation, publication or distribution of any image, however created, or any description of a person, real or simulated, showing or describing the body, or parts of the body, of such person in a manner or in circumstances which, within the context, violate or offend the sexual integrity or dignity of that person. It is deemed to be a sexual offence under the Sexual Offences Act and it should apply to all people regardless of age.

Moreover, she proposed an amendment to section 18E(1) to read as follows: any person may complain to the Board about unclassified, prohibited content, or potential prohibited content, in relation to services being offered online by any person, including online distributors. Finally, they argued that the Bill should tighten the wording of revenge pornography; that it was a criminal act when sexually-implicit material is shared without the subject's consent, for the intention to harm or embarrass, or for financial gain.

Ms Sadleir proposed an amendment to section 18E(1) of the Bill as to read as follows: any person may complain to the Board about unclassified, prohibited content, or potential prohibited content, in relation to services being offered online by any person, including online distributors.

Discussion
Mr Tseli asked how she would suggest incorporation of all these concerns into the Bill. She sought clarity on the proposal about computer forensic experts, what the presenter meant by the statement that the Bill was wrong and why the question was asked whether pornography was ‘criminalised enough’. It seemed like the presenter was attacking the Bill as being wrong without further clarification.

Mr Kalako asked what could be defined or assumed to be a private sexual photograph or film if disclosed was made with the intention of causing individual distress. The presenter was insisting on a lower threshold test of fault in order to hold the individual to account. This related to issues of negligence. Why did the presenter insist on a lower threshold test of fault, what could cause a distress. He asked what did she mean by ‘independent computer forensic expert’ and who would incur the costs for this?

Ms F Nkandimeng (ANC) asked about the difference between pornography and revenge pornography.

Ms Sadleir responded that they felt that pornography was not criminalised enough. Some sexual crimes were not covered by the Sexual Offences Act because it was mainly structured in a particular way to protect the vulnerable victims – in particular children. In that context, it protects the vulnerable victim by stating that criminal proceedings should be conducted in camera. This was essential because crimes committed against them were shameful and they were afraid to come forward. The submission was framed in the context of a criminal justice reflection and not in a films and publications context. For that reason, the submission was made to protect the victims of published private sexual photographs by means of harmonising the Bill with the Sexual Offences Act. The Bill did not criminalise pornography enough because it was not aligned with the Sexual Offences Act. This should be reflected in section 18F. She submitted that the Bill should tighten the wording of revenge pornography; that it was a criminal act when sexually-implicit material is shared without the subject's consent, for the intention to harm or embarrass, or for financial gain.

On the question of search and seizure, Ms Sadleir responded that the Bill did provide search and seizure to some degree. She was not proposing the provision be rewritten; rather it should be stated expressly that certain crimes under 18F and 24E would trigger the mechanism of search and seizure. Who should enforce this? When she referred to independent computer forensic experts, she referred to members of the FPB who were expert in computers. It might be an independent person who assists the victim to vindicate his or her rights.

On differences between revenge pornography and pornography, Mr Sadleir responded that the definition of pornography was provided in the Bill, but when it came to revenge pornography, there should be no distinction between child or young or adult victims. They were equally victims.

Cause for Justice submission
Ms Michelle Davin, Legal Writer and Media Liaison at Cause For Justice, Cause for Justice focussed on protection of human dignity in the context of expression of explicit sexual conduct. It submitted that there was a need to balance competing rights and interests. Those rights in question were sections 10, 12, 28(2) versus section 16 of the Constitution. The position of Cause for Justice was that there was a type of expression of explicit sexual conduct which did not present its characters truly as human beings with value in and of themselves. This type of expression solely or mainly employed its character as objects for other purposes, such as sexual stimulation. It submitted that such material constitutes a violation of human dignity and that limitation of freedom of expression on these grounds would therefore be reasonable and justifiable. Acknowledged was the fact that the protection of human dignity would have the potential of limiting the right to freedom of expression and the limitation on that ground should be reasonable and justifiable in terms of the limitation clause. In adopting a policy, a consideration ought to be taken of protection from harm. Account ought to be given to people at risk of harm and such harms borne out by research.

There was concern that exempting advertisements and broadcasters without putting in place comparable measures, will create a gap in the law and they proposed a single classification system that cuts across all media / platforms to regulate content. Based on this understanding, the deletion of certain subsections of sections 16(4)(b) and 18(3)(b) was proposed. Referring to section 24(3)(a), Cause for Justice stated that the measures chosen should be effective in achieving the aim of ensuring that children would not be able to obtain online access to material containing explicit sexual conduct. Referring to section 24(3)(g), it proposed that the Chief Executive Officer (CEO) should be entitled to obtain a copy of distributor registers annually to cross reference these with the National Register for Sex Offenders and with criminal records of those convicted of violent crimes.

Discussion
Mr Kalako asked whether drawing obscene pictures such as genitals could be protected by the constitutional right to freedom of expression. Under which category did these pictures fall: freedom of expression or infringement of the right to human dignity? He made a reference to the portrait of Helen Zille and Jacob Zuma as well as a cartoons depicting women and men sleeping, which are photographed and shared on WhatsApp or Facebook and sought clarity on whether these instances were regulated by the Bill. What would be their view?

Mr Tseli welcomed the submission about protection of people’s dignity. He sought clarity on the provisions that the Cause of Justice suggested should be deleted. Why were they suggesting that they be deleted?

Ms V van Dyk (DA) asked for clarity on the major concerns of Cause for Justice and how these concerns could be addressed.

Ms Davin responded that she was concerned with the protection of children to ensure that they were not harmed. Also, women should be protected. The right to freedom expression was subject to the limitation clause (section 36 of the Constitution). In this way, the court would determine whether limitation to the expression of freedom through drawing obscene pictures was reasonable. With regard to deletion of provisions, Cause of Justice felt that the provisions were vague and ambiguous and that it could give rise to different interpretations. The provision should serve the governmental purpose. On this question, more clarity would be submitted to the Committee after consultation with their legal advisors.

Interactive Entertainment South Africa (IESA) submission
Mr Nicholas Hall, IESA CEO, noted that IESA was funded completely through membership funds. Its nine founding companies provided nearly half of the full time jobs in the industry, accounting for 76% of the total value of the industry and last year alone commercially released 86 games and had 47 games in active development. He also noted that Make Games South Africa (“MGSA”) was the largest online community for game developers in the country. It had over 2000 members.

Commenting on the Bill, Mr Hall said that the Bill ought to be read with the Online Policy in mind. It was clear that the FPB intended to implement strict controls over the type of content South Africans could consume in the digital space. For a body that claimed not to be a censorship board, the Bill and policy gave an alarming amount of censorship powers.

He stated that section 18 read with section 24A of the Act and the proposed additions and amendments to these sections as envisaged by the Bill were unconstitutional. These sections required administrative prior classification of films and games, and made it a criminal offence not to comply. This system of administrative prior classification was unconstitutional due to it being an unreasonable limitation on the freedom of speech. There was nothing presented in the Bill as to why films and games should be treated differently.

Mr Hall said that classification was not the problem per se. And he submitted that content that would carry an age rating above 18 should be subject to prepublication classification. Yet, “provide consumer advice” was not a sufficient justification to criminalise not complying with the law nor the chilling effect it had on developers. The administrative prior classification system was ineffectual in meeting the Act’s goals, specifically for sub 18 classifications.

Mr Hall concluded that IESA recommended that section 18 be amended to remove the administrative prior classification of films and games that would receive an 18 or less classification. It welcomed the addition of sections 18C to 18F and questioned the suitability of the “revenge porn” crime in this particular Bill, but supported that it was being legislated against. It did not support the ability of the FPB to order access to online platforms and sites be blocked in South Africa.

Discussion
Mr Tseli sought clarity on the contention that 90% of digital games were produced locally. On this issue, he felt that Mr Hall was advocating for the status quo and this particular aspect should be clarified. It is not clear whether Mr Hall was challenging the classification fee or classification itself. What was the problem actually? What were the types of digital games referred to? What were the other industries that IESA was representing?

Ms van Dyk asked how IESA was suggesting that section 18 be amended.

Mr R van Schalkwyk (ANC) asked about the costs involved and what should be the measures imposed against non-compliance and what should be the power and functions of the FPB.

Mr Kalako asked on what ground IESA was basing its conclusion that certain provisions were unconstitutional. Commenting on the submission that it would not give rise to criminal offence if the classification was not made, he asked for clarity on this argument.

The Chairperson asked about the production of local video games and what was happening with funding, if this was coming from abroad.

Mr Hall responded that IESA was producing three types of digital video games. They were commercial games that were designed for the purpose of advertisements; there were entertainment games designed to keep people preoccupied and forget, and, serious games were developed for other purposes, including, for example, enhancement of the basic education curriculum.

Mr Hall noted that digital video games contributed enormously to economy. They were also bought by foreigners. Online video games had no publisher and were preferred because they could be downloaded. Video games funding came abroad because foreigners were interested in them. The objection to classification was not the fee per se. He objected to classification which had ‘criminal’ attached to it. Classification could infringe section 16 of the Constitution.

Interactive Advertising Bureau South Africa (IAB) submission
Mr Andrew Allison, Head of Regulatory Affairs at IAB, noted that IAB represented approximately 180 members including online publishers, brands and educational institutions as well as creative, media and digital agencies. His submission focussed on the right to freedom of expression guaranteed by section 16 of the Constitution. Referring to the Constitutional Court judgment in The Citizen v McBride [2011] JOL 27 088 (CC), he noted that the importance of the right to freedom of expression could not be gainsaid. Freedom of expression was an important instrument to a democratic government. Free expression of opinion, including critical opinion, was essential to the proper functioning of our constitutional democracy. In Print Media South Africa and Another v Minister of Home Affairs and Another (2012), the Constitutional Court held that prior classification limited the right to freedom of expression and this limitation was not justifiable as it did not achieve its purpose in a proportionate manner. He proceeded to highlight the constitutional backdrop to regulating online media and concluded that, according to the Constitutional Court, the rule was a free-flow of constitutionally protected expression except administrative prior classification matters. As such, both the Films and Publications Act and the Bill were unconstitutional.

Mr Allison noted that differentiation between newspaper and magazine was irrational, impractical and outdated. For that reason, IAB proposed section 16(1) ought to be amended. Also, differentiation of online video content and broadcast video content was problematic simply because the content was the same.

Mr Allison suggested that section 18(6) ought to be amended to include online distribution and that creation of independent classification bodies infringed media freedom. In his view, the Bill was unconstitutionally vague. In its view, the Bill was unconstitutionally vague. Vagueness of terms included online distribution and distribution, publications, digital film and film, certain publication and publications.

Mr Allison said that the Bill provided the Board with the power to censor content and that it has an adverse impact on the development of South Africa’s internet economy. He concluded that the Bill was not aligned with the National Development Plan and would have an adverse or prejudicial impact on the development of the internet economy.

Discussion
Mr Kalako remarked that according to the presenter the Bill was unconstitutional and the Bill was needed no longer because it would affect the economy of South Africa. How would Mr Allison advise the Committee to deal with the problem at hand?

Mr Tseli remarked that he noticed the contradiction regarding the definition of publication. Were not magazines and newspapers the same things? Why was everything in the Bill objected to as unconstitutional? Was the Bill in its entirety unconstitutional?

Mr Allison responded that the Bill was partially unconstitutional. Certain provisions were unconstitutional whereas others were not.

Afternoon session

eTV / eNCA submission
Adv Geoff Budlender, on behalf of eTV / eNCA, took the Committee through the key points of the opinion eNCA sought on the Amendment Bill. He highlighted that the proposed amendments will have a significant impact on eTV given the company’s activities in the online space. The content streamed online is of obvious public interest and value, and the value and interest of the content depends on the fact that the streaming is live. The Bill effectively prohibits live streaming completely. eNCA also publishes numerous news articles via its website, and these are the equivalent of print articles but published via the website. It is important to note that the Press Ombudsman already has jurisdiction over these articles. The Bill inexplicably treats these news articles in a disadvantageous fashion compared to similar or identical articles published in hard copy or online newspapers and magazines, by making them subject to the jurisdiction of the FPB.

He noted that the Bill suffers from two constitutional defects, which are: creating a system of prior classification for content streamed online, and secondly, the Bill means that online articles created by broadcasters are subject to the jurisdiction of the FPB even though they are already subject to the jurisdiction of the Press Ombudsman. Therefore, these aspects are clearly unconstitutional in light of the Constitutional Court decision in Print Media v Minister of Home Affairs in 2012. He then recommended that the Bill be amended to cure these defects. Section 16 of the Constitution protects the right to freedom of expression, including freedom of the press and other media. Therefore, Parliament may only regulate the media where reasonable and justifiable. ICASA is already an independent authority that regulates broadcasting in the public interest, so only ICASA or agreed self-regulatory mechanisms can be used to regulate broadcasters.

Section 18(7) removes the exemption contained in section 18(6) from any broadcaster who streams content through the internet. This literally means that any broadcaster who streams content through the internet would have to submit all of its content to the FPB for classification, regardless of whether it is streamed online or broadcast. He emphasised that this is unconstitutional, because it effectively rendered live-streaming of video content unlawful. This significantly reduces the public’s access to public interest content. The judgment in the Constitutional Court held that a prior classification scheme was constitutionally invalid because Parliament could have allowed for regulation after publication. Therefore, unanimously declaring the amendments to section 16 unconstitutional and they were effectively struck down in their entirety. Section 18(7) suffers from the same constitutional defect. The Bill is far more restrictive of freedom of expression than that of the provisions struck down in the Print Media case. Although the classification scheme in Print Media did not apply to all or even most publications, the present provisions in the Bill apply to the streaming of any film at all, whatever its nature. To fix these defects, section 18(6) of the Act should be amended to include the words “or online streaming” after the word “broadcasting”. Then the newly proposed restrictive sections 18(7) to (9) should then be deleted.

The second unconstitutional defect is the lack of exemption for online news articles. The Bill does not extend the exemption to news articles published online by eNCA and other broadcasters. These articles fall into the definition of “publication” in the Act. This is also unconstitutional because in Print Media it is clear that where two kinds of news publications are subject to the same self-regulatory regime, it is unconstitutional to make one kind of publication subject to the FPB.

In conclusion he noted that if the Bill was enacted in its present form, it would be unconstitutional and invalid, and the defects outlined can easily be remedied.

Right2Know submission
Mr Mark Weinberg, National Coordinator, briefed the Committee on the impact of the Amended Bill outlining that Right2Know rejects legislation that is overly restrictive and frames the internet as a threat. This type of legislation will stifle the empowering, democratising potential of the internet. He said that they take offence about comments made by Members where children are used as an excuse to justify unconstitutional legislation. Legislation designed to protect children from harmful content, while indeed necessary, should not see them merely as passive victims and must take into account their rights and freedoms to participate online and in decisions that affect them. He noted that the Bill is unconstitutional, and section 18(7) needs to be removed completely. The FPB regulations and amendments still misunderstand the democratizing nature of the internet that undermines monopolisation of media production as well as enabling everyone to become media producers.

Internet Service Providers' Association (ISPA) submission
Mr Dominic Cull, Regulatory Advisor to IPSA, noted that South Africa Connect has set out to provide internet access to over 80 percent of South Africans by 2020 which will provide digital literacy programmes and education. He emphasised that it is critical to have clear definitions in the legislation and apply them consistently which seems to be the problem in the current Amendment Bill. He said if not all content is required to be classified, then the Act must make it clear which content is required to be classified. He believes that it is long overdue that the term ‘child pornography’ is removed from legislation, and asked the Committee look into international trends around the meaning and use of this term. The range of online content is very wide, and if not everything can be regulated then it is important to bear in mind what the legislation can regulate. He outlined the following online content types: Video-on-Demand; Games; User-Generated-Content: Social Media Platforms; User-Generated-Content: Peer-to-Peer

He said that it is indeed user generated content from what happens in social media as well as peer to peer where often times people are victims of cyber-bullying, sexting, etc. The Bill does not cover these in its formulation and these are some of the content to which attention needs to be paid. The Bill needs to be very clear about who bears the obligation to register with the Board in terms of the content being distributed and submission for classification. This not clear in the current legislation nor in the Bill. The terms are also very vague and not broadly defined.

Discussion
No questions were asked on this particular submission.

Mr R Tseli (ANC) asked if it would be possible for the presenters to clarify some of the issues that have surfaced from the public. He believes that the presenters seem to believe that this Bill is going to make life difficult for broadcasters. He then asked Adv Budlender to provide some submissions on what should be done particularly regarding the said broader term ‘film’, and to what extent should the term be less broad or made much easier. Secondly, what mitigating factors could be proposed to alleviate situations in which people’s human rights have been infringed, because an apology is not enough when a person’s character has already been defamed by content published by broadcasters.

Mr M Kekana (ANC) said it is quite clear from the submissions made the constitutional defects that emerge from the Bill, as well as the remedial action going forward. However, one element is the implications of costs in this process. He asked for eNCA’s view on the costs that will be involved in this process, and who is going to bear these costs.
 
Adv Budlender replied that eTV does not have an in principle problem with the definition of the term ‘film’ which is broad and has always been broad, but eNCA’s problem is the proposed amendment in section 18 (7). The term definition itself is not needed to fix eTV’s problems and it can live with it, provided that the constitutional defect in section 18(7) removes the exemption from any broadcaster who streams content through the internet, is fixed.

On mitigation factors, Adv Budlender said the question of whether it is appropriate to stop a publication before it occurs is a difficult one which the courts have always faced. This is because it is within the constitutional right to broadcast material in the public’s interest and if any person’s rights have been infringed, it can be dealt with afterwards. He agreed with Mr Tseli that an apology is often not enough. There needs to be a series of remedies for people who have been wronged publicly, a formal statement about falsity from the broadcaster, a fine, a legitimate retraction but these remedies have already been captured in the legislation. There are already sufficient remedies in the legislation on the infringement of other people’s human rights. eTV is concerned about the costs and endorses the submission that these processes will lead to unnecessary costs. However, eTV’s submission is more fundamental regarding the constitutional deficiencies in the Bill; as for other organisations cost may be a major concern.

Mr Tseli asked R2K about the organisations that it is in coalition with. Secondly, he asked how do you balance freedom of expression with the other human rights; what is R2K’s take on persons whose character has been damaged through the internet or character defamed as a result of content that has been broadcast online?

Mr Mark Weinberg outlined that R2K works together with a variety of civil society organisations; he said he would be happy to send a list through the office of the Chairperson to furnish that information in its entirety. He noted that one must be informed that freedom of expression is inherently a human right itself. Therefore, human rights need to be respected altogether. Although it may be difficult at times to strike a balance, it is important that a good balance is struck by way of legislation.

The meeting was adjourned.