Films and Publications Amendment Bill [B37-2015]: public hearings day 2

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Communications

31 August 2016
Chairperson: Mr H Maxengwana (ANC)
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Meeting Summary

The South Africa Jewish Board of Deputies (SAJBD) contended that South Africa was challenged by the new age of hate which was taking place in social media which, from its point of view, could be termed anti-social media. By means of the so-called social media, the Jewish community was being attacked and these individuals were taking refuge in hidden identities on Facebook and Twitter. An effort to prosecute these individuals was impossible because there was no law which criminalised online hate speech. The SAJBD submitted that the definition of hate speech should be adapted for the unique challenges of electronic media. Two international definitions for consideration were provided. For compliance, mechanisms should be established to obtain information from internet service providers and social media companies like Facebook, Twitter and Yahoo. Penalties to be imposed on the wrongdoer should be established in light of restorative theories of justice. The SAJBD proposed that a subcommittee should be created to consider rules, mediate and intervene in disputes and issues that arise in the ever changing electronic media world.

The SABC submitted that the public broadcasting service was currently heavily regulated with strict licence conditions and industry regulations. Whilst the SABC acknowledged the proposed extended mandate of the FPB, it was equally vital for the Bill to be in sync with the provisions of the Constitution, in particular sections 16 and 192. Certain SABC services would be affected by the Bill should it come into force. The Bill could impact on audio streaming services for all SABC radio services; websites for all SABC TV and radio services; podcasts for SABC radio services; online video for SABC radio and TV services; social media accounts for SABC TV and radio services; and third party content (SABC platform used as a conduit). After highlighting areas of concerns, SABC submitted recommendations to the Committee for consideration. These recommendations included: a practical and a well balanced approach to online content regulation was required; the Bill ought not to hinder the goal of the National Development Plan which sought to move towards full employment by 2030, instead, it ought to strive to stimulate the economy and promote SMMEs; ICASA and FPB should engage and find ways of avoiding regulation overlaps; avoid the possibility of double dipping of regulation for broadcasters; exemption of broadcasters’ online content that had not been broadcast on a TV or radio platform; the FPB tariff structure for online content classification should be reasonable; and there should be a one-stop shop that served as an initial portal for all complaints.

The Press Council of South Africa urged the Committee to consider amending section 16(1) to include the online members of the Press Council and to reconsider the definitions of press council of South Africa and press ombud. These changes were recommended to tally with the constitution of the Press Council. It concluded that effective self-regulation was the best system for promoting high standards in the media.

MultiChoice (DSTV) stated that it supported the objectives the Bill; however the Bill ought to be constitutional, workable, effective and capable of implementation, monitoring and enforcement. Unconstitutionality derived from certain provisions such as prior classification which was seen as limiting freedom of expression. The FPB should complement other institutions and the Bill should complement other legislation. MultiChoice submitted that sections 18(7)-(9) should be amended and double jeopardy should be avoided. Account should be given to the fact that ICASA and BCCSA codes of conduct protect broadcasting viewers, including children, from harmful content. The Bill should only allow self-classification and both domestic and foreign online distributors should be equally accountable. Display requirements were unworkable online. In addition, the Bill was suffering from lack of effective and appropriate enforcement solely because section 18E was too wide, lacked key definitions, meaning, clarity and procedural safeguards. MultiChoice emphasised that the Bill should not regulate broadcasting.

SANEF submitted suggested word changes to ensure that online publications of members of the Press Council are excluded from the classification requirements of the ambit of the Bill. Section 16 should be amended to be consistent with the Constitution. Amendment should include online members of the Press Council. The Bill should not regulate films and publications as if they were a single platform. It should be noted that there were multi-platforms that contained TV, newspaper, magazine and online media.

Google South Africa said the main objective of Google was to organise the world’s information and make it universally accessible and useful and this was done in a variety of ways. When it came to child protection, Google aimed to empower parents with tools to help them choose what content their children see online, to protect children online through partnerships with law enforcement, industry and civil society and to educate children on how to stay safe online. When you go to the Google search page, you have to “turn on SafeSearch” and click on it before one can continue to search. YouTube also had YouTube Safety Mode. This could filter out explicit videos and comments from YouTube search results.

Google SA explained how the flagging of specific violations worked. If one saw a picture or a video which was explicit or contained hate speech this could be flagged and Google would respond to that flagging by removing that picture or video. A decision to remove was taken based on Google policy.

An overview of Google’s user policies regarding YouTube was provided. The ground rules, laid down in order to keep YouTube safe and fun for everyone, were noted. There were community guidelines about nudity or sexual content, harmful and dangerous acts, violent or graphic content, hateful content and harassment. With regard to child protection, Google removed child pornography and any child sex abuse material immediately when it became aware of its presence on its search engine and reported it to law enforcement officials.

Commenting on the Bill, Google SA observed that the Bill was potentially unconstitutional as some of the provisions seemed to limit constitutionally guaranteed freedoms and rights by means of pre-classification. The Bill focussed too much on protection at the expense of empowerment. The Bill used the term 'child pornography' instead of 'child sexual abuse material'. It proposed amending section 18, in particular the subsections dealing with classification, prohibition of content depicting violence against children, and complaints against digital content services. Google SA concluded that while the objectives of the Bill were indeed commendable, it hopes that its inputs on the need to align the clauses of the Bill with those of the Online Regulation Policy and other pieces of existing legislation and international standards, as well as its call for a more holistic approach to protecting children online, would be incorporated in the Bill.

Media Monitoring Africa (MMA) and SOS Coalition made a joint submission noted there is no doubt that the Bill seeks to protect children, however, the exclusion of children in participation in its processes is in violation of the section 28 of the Constitution. They also highlighted that the Bill goes against constitutional provisions with regard to freedom of expression, and infringes sections 16 and 32 of the Constitution. It was noted that the definition of ‘child pornography’ needs to be revised to be in line with other pieces of legislation and international standards because it is unproductive to have different pieces of legislation with different definitions of the same crime. The Bill seeks to criminalise hate speech, and it was noted that public participation is under way for the development of a National Action Plan to combat hate speech, racial intolerance and xenophobia, MMA requested the Committee withdraw this definition and redefine it in line with the Constitution.

The Centre for Constitutional Rights pointed out that the Penalty Committee is lacking a sufficient degree of independence (clauses 4 and 5), and advised greater public participation in its appointment to dilute the powers of the Minister. The second consideration was clause 15, read with clause 19, which arbitrarily permits the State to infringe on right to privacy, which is a fundamental constitutional right in section 14 of the Constitution. CCR said that the classification of all online content is impracticable (clause 19) and this pre-classification amounts to censorship.

Members asked about the proposal to replace the definition of hate speech; whether the participation of children referred to is to children themselves or to organisations that represent children on issues that affect them; whether the Bill would be ruled unconstitutional in its current form by the Constitutional Court; and the type of public participation proposed in the appointment of the Penalty Committee.

Meeting report

South Africa Jewish Board of Deputies (SAJBD) submission
Ms Wendy Khan, National Director: SAJBD, noted that South Africa was challenged by the new age of hate which was taking place in social media which, from its point of view, could be termed anti-social media. By means of the so-called social media, the Jewish community was being attacked such as the posting of Hitler’s comments on SAJBD’s social media accounts. Some individuals were calling South Africans to attack Jews and these individuals were taking refuge in hidden identities on Facebook and Twitter. An effort to prosecute these individuals was impossible because there was no law which criminalised online hate speech. For example since 2014, it had been difficult to lay charges against a person called Phumza Zondi, who has threatened to come after Jews in a post on the SAJBD’s Facebook page. Phumza Zondi used an assumed name. Two years on, this person's true identity was not yet disclosed by Facebook, and the Public Prosecutor had declined to prosecute. The SAJBD submitted that the definition of hate speech should be adapted for the unique requirement of electronic media. Two international definitions for consideration were provided.

Ms Khan said one could not merely add the words “internet”, “website” and “social media” to the Act because it needed a more comprehensive approach to address the unique challenges of the electronic media. Drafting and implementing legislation to address hate in the electronic media required closer cooperation with different departments (i.e. Communications, Justice, Police), IT specialists, internet service providers, legal academics and rights activists with expertise in racism and prejudice issues.

Ms Khan submitted that the definition of hate speech should be adapted for the unique requirement of electronic media. She gave two international definitions for consideration. For compliance, mechanisms should be established to obtain information from internet service providers and social media companies like Facebook, Twitter and Yahoo. Penalties to be imposed on the wrongdoer should be established in light of restorative theories of justice. The SAJBD proposed that a subcommittee should be created to consider rules, mediate and intervene in disputes and issues that arise in the ever changing electronic media world.

Discussion
Mr M Kalako (ANC) remarked that SAJBD came with different approach towards the regulation of the social media as it pertained to hate speech. His understanding was that existing laws were not enough to prosecute an individual offender and that the SAJBD was contending that a clause should be incorporated in the Bill, which would provide a mechanism to hold wrongdoers to account.

Ms Khan responded that the identity of the offender was difficult to obtain because the social media companies would not disclose an identity of an individual who posted hate speech. More often than not, individuals created fictitious profiles and the identities were fake. Although these fake profiles could be taken down by social media companies, this was not helping because SAJBD could not take action if the offender was not identified.

Ms S van Schalkwyk (ANC) sought clarity on penalties that could be imposed.

Ms Khan responded that those who spread hate speech via social media should face legal consequences.

Ms P van Damme (DA) asked if social media companies should investigate its customers to ensure that they know their true identity and asked for SAJBD’s position on hate speech cases versus general criminal cases.

Ms Khan responded that when people break the law of the country, foreign social media companies should not protect them. In France, authorities have successfully forced these companies, through legal means, to identify offenders. There must be a law regulating media that impose penalties on those offenders as well as social media companies in cases where they are unable to disclose the identity of an offender. It was complicated due to company law and the right to freedom of speech, but other countries have successfully managed to get this information from service providers and with the current standing on racism laws, South Africa should not be any different. In fact, the United States’ Anti-Defamation League was willing to educate police and governmental officials in matters of online discrimination. South Africans should be protected.

The Chairperson, referring to anti-social media, sought clarity on what she meant by the Facebook court order.

Ms Khan explained that it was difficult to obtain a court order to force Facebook to disclose the identity of the person who posted hate speech on the SAJBD Facebook page. More problematic was that most police officials were not aware of social media like Facebook and Twitter and, for that reason, the police could not help a person if an individual approached SAPS to lodge a hate speech crime.

SABC submission
Mr Philly Moilwa: General Manager: Policy and Regulatory Affairs, noted that the public broadcasting service was currently heavily regulated with strict licence conditions and industry regulations. Whilst the SABC acknowledged the proposed extended mandate of the FPB, it was equally vital for the Bill to be in sync with the provisions of the Constitution, in particular sections 16 and 192.

Mr Moilwa noted that certain SABC services would be negatively affected by the Bill. These include:
• Audio streaming services for all SABC radio services;
• Websites for all SABC TV and radio services;
• Podcasts for SABC radio services;
• Online video for SABC radio and TV services;
• Social media accounts for SABC TV and radio services; and
• Third party content (SABC platform used as a conduit).

After highlighting areas of concerns, Mr Moilwa provided recommendations to the Committee for consideration. These recommendations include:
• A practical and a well balanced approach to online content regulation was required.
• The Bill ought not to hinder the goal of the National Development Plan which sought to move towards full employment by 2030; instead, it ought to strive to stimulate the economy and promote SMMEs.
• ICASA and FPB should engage and find ways of avoiding regulation overlaps.
• Avoidance of possibility of double dipping of regulation for broadcasters.
• Exemption of broadcasters’ online content that had not been broadcast on TV or radio platform.
• The FPB tariff structure for online content classification should be reasonable. Affordable and subjected to a public consultation process. This provision should be included in the Bill.
• There should be a one-stop shop that served as an initial portal for all complaints.

Discussion
Ms van Damme agreed with the SABC about the lack of consultation with the stakeholders involved. There should have been engagement between ICASA and FPB prior to the drafting of the Bill to avoid regulation overlaps.

Press Council of South Africa submission
Mr Joe Thloloe, Director, urged the Committee to consider the amendment of section 16(1) to include the online members of the Press Council. He also asked the Committee to reconsider the definitions of press council of South Africa and press ombud. These changes were recommended to tally with the constitution of the Press Council. He briefed the Committee on who the Press Council of South Africa was, how it got where it was and what was next (see document). He concluded his submission by stating that an effective self-regulation method was the best system for promoting high standards in the media.

Discussion
Mr Kalako sought clarity on self-regulation. Other presenters pointed out what they thought was a problem and how these could be addressed. Was there anything in the Bill that would encroach on the self-regulation of the press bodies?

Mr Thloloe responded that he did not imply that the Bill was encroaching on self-regulation. Self-regulation had been applied to newspapers and the Constitutional Court had ruled that magazines should be included in the self-regulation system. The Press Council was not judging the other areas of the Bill because these were not areas of its concern.

Ms N Ndongeni (ANC) sought clarity on how the Bill could be aligned with the wishes of the Press Council.

Mr Tholoe responded that the current exemption had been working well for newspapers, but now that magazines were being added, online members of the Press Council should be included.

MultiChoice submission
Mr Kwezi Mtengenya, General Manager: Regulatory Affairs: MultiChoice (DSTV), stated that it supported the objectives the Bill wanted to achieve; however the Bill ought to be constitutional, workable, effective and capable of implementation, monitoring and enforcement.

Mr Mtengenya noted that the Bill was unconstitutional given that its various provisions were not consistent with the Constitution. Prior classification limited freedom of expression and should be last resort. A major shift was required so the Act did not fall foul of Constitution again. This required clear, effective, appropriate provisions that are no more restrictive than necessary to achieve a legitimate purpose. Accordingly, the FPB should complement other institutions with the Bill complementing other legislation. It followed that FPB could not regulate broadcasting.

Mr Mtengenya noted that the Bill’s approach to broadcasting was not permissible. Therefore, sections 18(7)-(9) should be amended. Furthermore, double jeopardy should be avoided and account should be given that ICASA and BCCSA codes of conduct protected broadcasting viewers, including children, from harmful content.

Mr Mtengenya welcomed the extension of the Act to include online matters, but there was a need to ensure that regulating online matters was effective and workable. South African users of Facebook were 13 million, 7.4. million for Twitter, 8.28 million for YouTube and 2.68 million for Instagram. This huge amount of online content made the Bill unworkable.

Mr Mtengenya said that the Bill should only allow self-classification and both domestic and foreign online distributors should be equally accountable. He also felt that display requirements were unworkable online. In addition, the Bill was suffering from a lack of effective and appropriate enforcement solely because section 18E was too wide, lacked key definitions, meaning, clarity and procedural safeguards. He concluded by recommending that the Bill should not regulate broadcasting.

Discussion
Mr M Kekana (ANC) welcomed some cautions raised by the MultiChoice. He asked for clarity on the submission that the FPB should complement, not fetter, ICASA’s function, on whether section 192 of the Constitution would not have a negative impact on FPB and on how regulation should be formulated in order to ensure appropriate enforcement measures.

Mr Mtengenya responded that both ICASA and the FPB should talk to each other to avoid function overlaps. The Bill ought to make the powers and functions of the FPB very clear. Any interaction between ICASA and FPB ought to be open and transparent and any MoU that entered into by the ICASA and FPB should be open. It should also be noted that the Bill did not address how the FPB would be funded. How the FPB’s resources would be generated. For example, there were annual fees that were paid to ICASA.

Ms van Damme remarked that the FPB should be given opportunity to state its views on the Bill. She agreed that given the number of people using social media, the FPB would not be able to deal with the social media constituency. More important to note was that the MultiChoice contended that the Bill was unworkable and unconstitutional, meaning that the Bill could be also challenged in court. Another issue to be reconsidered was if classification could work without infringing section 16 of the Constitution.

Mr Mtengenya reiterated that pre-classification encroached on freedom of expression, however, it was necessary for the FPB Act to be extended to protect the online environment.

South African National Editors’ Forum (SANEF) submission
Mr Reggy Moalusi, Secretary General, noted that the SANEF was a member of the Press Council of South Africa. SANEF had interacted with the FPB. SANEF SANEF suggested word changes to ensure that online publications of members of the Press Council are excluded from the classification requirements of the ambit of the Bill. Section 16 should be amended to be consistent with the Constitution. Amendment should include online members of the Press Council. The Bill should not regulate films and publications as if they were a single platform. It should be noted that there were multi-platforms that contained TV, newspaper, magazine and online media.

Discussion
The Chairperson asked for recommendations for the manner in which the Bill could be amended.

Mr Moalusi replied that the proposals were contained in the written submission submitted to the Committee.

Ms van Damme sought clarity on how SANEF proposed that digital outlets and outputs should be regulated.

Mr Moalusi responded that the law ought to be harsh with digital people. There were laws and institutions like IPF, ICASA and Press Council which were concerned with monitoring and enforcement of rules. The laws ought to stay tight so that digital people should not transgress people’s rights and, more importantly, digital companies could be identified.

National Association of Broadcasters (NAB) submission
Ms Dimakatso Qocha, Deputy Executive Director: NAB, noted that the NAB represented all three tiers of broadcasting (public, community and commercial) as well as signal providers, industry professionals and associates. The NAB supported the protection of children from harmful content and the rapid policy and regulatory responses to technical advances. The NAB submitted that they were concerned with the constitutionality of sections 16, 18(7), and 18(9) of the Bill.

There were no questions from Members.

Google South Africa submission
Mr Fortune Sibanda, Public Policy Manager: Google South Africa, said the main objective of Google was to organise the world’s information and make it universally accessible and useful and this was done in a variety of ways. When it came to child protection, Google aimed to empower parents with tools to help them choose what content their children see online, to protect children online through partnerships with law enforcement, industry and civil society and to educate children on how to stay safe online. When you go to the Google search page, you have to “turn on SafeSearch” and click on it before one can continue to search. YouTube also had YouTube Safety Mode. This could filter out explicit videos and comments from YouTube search results.

He explained how the flagging of specific violations worked. If one saw a picture or a video which was explicit or contained hate speech this could be flagged and Google would respond to that flagging by removing that picture or video. A decision to remove was taken based on Google policy.

He provided an overview of Google’s user policies regarding YouTube was provided. The ground rules, laid down in order to keep YouTube safe and fun for everyone, were noted. There were community guidelines about nudity or sexual content, harmful and dangerous acts, violent or graphic content, hateful content and harassment. With regard to child protection, Google removed child pornography and any child sex abuse material immediately when it became aware of its presence on its search engine and reported it to law enforcement officials.

Commenting on the Bill, he observed that the Bill was potentially unconstitutional as some of the provisions seemed to limit constitutionally guaranteed freedoms and rights by means of pre-classification. The Bill focussed too much on protection at the expense of empowerment. The Bill used the term 'child pornography' instead of 'child sexual abuse material'. It proposed amending section 18, in particular the subsections dealing with classification, prohibition of content depicting violence against children, and complaints against digital content services.

Mr Sibanda concluded that while the objectives of the Bill were indeed commendable, it hopes that its inputs on the need to align the clauses of the Bill with those of the Online Regulation Policy and other pieces of existing legislation and international standards, as well as its call for a more holistic approach to protecting children online, would be incorporated in the Bill.

Afternoon session
Media Monitoring Africa (MMA) submission
Mr Wellington Radu, MMA Head of Programmes, said that it appears that the Bill goes against constitutional provisions for freedom of expression, amongst others, and the Bill does not consider the socioeconomic impact. There is a potential infringement on fundamental rights because the current form of the Bill may, if left in its current state, infringe on sections 16 and 32 of the Constitution. And the infringement is deepened as the Bill appears to seek pre-publication classification, including user-generated content. According to the Bill, all publications that fall outside of the newspaper or magazine exemption are subject to a possible pre-publication classification. Another issue was the need for children’s participation. Despite the clear objective to protect children the Bill does not involve children participation. Section 28 of the Constitution provides that children need to be involved in all matters that affect them, therefore, it is imperative that the public participation process involves the views of children.

Ms Thandi Smith, Head of Policy Programme, took the Committee through the MMA’s specific concerns in the body of the Bill, particularly the definition of ‘child pornography’ which is different to the definition provided in the Sexual Offences Act of 2007. MMA calls for a revision of the definition from “child pornography” to “child sexual abuse material” or “child abuse material” in line with international standards and relevant government departments, public institutions, and supporting Acts and policies. The second specific issue raised by MMA is hate speech. She noted that this is already dealt with in the Cybersecurity / Cybercrimes Bill which seeks to criminalise hate speech, and she emphasized that public participation is under way in the development of a National Action Plan to combat hate speech, racial intolerance and xenophobia. Therefore, MMA requests the Committee consider withdrawing the definition of hate speech to be in line with section 16(2)(c) of the Constitution. Lastly, MMA raised ‘revenge porn’ stating that the Bill appears to have drawn on similar proposed legislation in the UK where, in addition to the non-consensual sharing, the element of causing distress is added. Therefore, one notes that there may have been consent when the photograph or film was originally made, however as is often the case this content is then shared with the intent of causing embarrassment or harm to the person through its subsequent dissemination, when a relationship has turned sour or for financial gain. Accordingly it is requested that the Committee considers tightening the wording to ensure that the absence of consent is about the non-consensual sharing / dissemination of the content, and not about the original creation of the content. This is provided of course it was consensually exchanged within a confidential relationship to begin with. In conclusion, she noted that prevention is better than cure; it is already too late once the image is published.

Discussion
The Chairperson said he noticed a lot of similarities around the issues of hate speech and child pornography, which suggests the seriousness of these issues.

Ms van Schalkwyk (ANC) said the views of children need to be taken into consideration and she believes that children’s views have been overlooked. This is something that the Committee needs to seriously consider looking into before the conclusion of the Bill.

Mr R Tseli (ANC) said he is battling to understand whether MMA has a problem with the definition of ‘hate speech’ itself, and if so, he expects MMA to make a specific proposal to replace the current definition. He asked if MMA is suggesting that ‘hate speech’ as a whole should be removed or re-worded in a particular way. On the involvement of children, he asked for specific proposals on whether the participation of children should be groupings of children themselves or through structures that represent them at the hearing. He asked who the members of MMA were.

Ms Smith clarified that ultimately MMA felt that it is not productive to have two pieces of legislation dealing with the same issue, and this Bill is not the correct avenue to deal with hate speech. However, if hate speech was to be left in the Bill, then it is advisable that the definition be in line with other pieces of legislation such as the Sexual Offences Act of 2007, as well as other relevant institutions. She said it would be productive to have a combined definition, ultimately, the definition in the Constitution. The submission was worked on jointly by both MMA and SOS Coalition. MMA does not have external members. The SOS Coalition is a membership based organisation and it would be happy to furnish the Committee with that membership list.

Mr Radu replied that MMA has been working with children in both Johannesburg and Cape Town equipping them with media literacy skills, and this take place over eight months of the year through the school curriculum. MMA creates the content to engage with children and then gives feedback to media regarding how the media features children and their issues. For example, in the previous elections, it came out that children’s issues were not featured at all in the elections’ agenda. In MMA’s 12 year experience with children, we have realised that children do have solutions with regards to issues that affect them, but they continue to be marginalised because the notion out there is that they do not know what is going on.

Centre for Constitutional Rights submission
Ms Phephelaphi Dube, Director: Centre for Constitutional Rights, introduced the Centre for Constitutional Rights as a non-profit organisation dedicated to upholding the Constitution, the rule of law and constitutional democracy. It seeks to promote the values, rights and principles provided for in the Constitution on behalf of everyone. It monitors developments, including actions, policy and draft legislation, which may affect the Constitution and the values, rights or principles provided therein and it informs people and organisations of their constitutional rights and assists them in claiming those rights.

On clause 4 and 5 of the Bill, she highlighted that the Penalty Committee lacks a sufficient degree of independence, because the Committee is appointed by the Minister in consultation with Cabinet. There is no other external body that can be used for an independent opinion on this matter, therefore, lacking independence altogether. The CCR recommends a greater public participation process to appoint the Penalty Committee to ensure that the degree of independence is upheld. The second consideration is clause 15 read with clause 19, and here it appears that the clause arbitrarily permits the state to infringe on right to privacy, which is a fundamental constitutional right in section 14, particularly on obtaining classification pre-publication. She submitted that the classification of all online content is impracticable (clause 19) and pre-classification amounts to censorship. The share of volume of the digital world makes it impracticable, and users of social media would be deemed to be publishers and they too would be liable to this form of classification. The Bill needs to be specific and clarify who would be deemed as a publisher and a distinction needs to be made between social media users and publishers. The Bill also fails to strike a balance between the right to freedom of expression and children’s rights, as well as the right to privacy. CCR recommends an open public participation process in vetting, nominating and appointing of members of Council, Appeal Tribunal and Penalty Committee. Secondly, the pre-publication classification requirement must be dropped. Thirdly, it ought to be a requirement that classifiers obtain a court order before entering premises to classify digital content.

Discussion
Mr M Kekana (ANC) asked what the presenter meant by public participation involvement in the appointment of the Penalty Committee.

Ms Dube replied that the main concern is that the ministerial power needs to be diluted because it appears that there is too much power in the hands of the Minister in the appointment process. This is to ensure a fair and independent appointment process such as the ICASA process, which set a precedent in this regard.

Mr Tseli said he is getting the impression that the whole Bill appears to be unconstitutional, and asked CCR to provide a more detailed document that outlines all the clauses that are contravene the Constitution.

Ms Dube replied that the greater detail of the analysis of the Bill is in the written submission made by CCR to the Committee. CCR could provide an addendum to encompass this which will provide clear reference to all the sections that are not in line with the Constitution.

Ms P Van Damme (DA) highlighted that in the submission it is pretty clear which sections are not constitutional. She asked for legal opinion on whether the Bill would be ruled unconstitutional by the Constitutional Court if it were taken before the Constitutional Court in its current form.

The Chairperson advised against the legal opinion, and warned that Ms Dube would be treading on very dangerous ground. He said the submission made by the CCR is welcomed, however, it would not be proper to obtain legal opinion from a presenter. The comments and submission are sufficient.

The meeting was adjourned.

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