Films and Publications Amendment Bill: Department response to public submissions

Meeting report

Introductory remarks

The Chairperson informed Members that there were various court cases in which the Committee had been cited as respondents, and needed to prepare for them. As Chairperson, he was the respondent on behalf of the Committee in these cases.

Mr M Kalako (ANC) said that the harassment of journalists was deplorable and had to be condemned.

The Chairperson said that the Committee would issue a statement in this regard.

The Committee observed a moment of silence for the passing of ex-Independent Communications Authority of SA (ICASA) Chairperson, Dr Stephen Mncube.

The Chairperson pointed out that there were members of the Committee who were absent from the meeting as they also had to attend a meeting of the ad hoc Committee on the South African Broadcasting Corporation (SABC) Board.

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

The Department of Communications (DoC) presented its responses to inputs made during public hearings on the Bill. The delegation included Mr Ndivhuho Munzhelele, Acting Director General, Mr Collin Mashile, Chief Director: Broadcasting, and Mr Tshegofatso Kgarabjang Director:Legal Services.

The Films and Publications Board (FPB) was represented by Ms Sarah Mangena, Deputy Chairperson FPB Council, Mr Sipho Risiba, Chief Operations Officer, Adv Lufuno Nevondwe, FPB Council Member, Ms Palesa Kadi, Shared Services Executive, and Mr Tholoana Ncheke, Legal Officer.

Others in attendance included Ms Pulane Kole, Chief Director: Socio Economic Impact Assessment System (SEIAS), Department of Planning, Monitoring and Evaluation (DPME), Adv Kweta Mongameli, Senior State Law Adviser, and Ms Phumelele Ngema, Parliamentary Legal Adviser.

Mr Mashile provided a brief background on the process on the Bill and the work that had gone into the version that was now before the Committee.

Mr Kgarabjang presented the responses of the DoC and the FPB to inputs made on the Bill. Inputs had been made by the South African Communications Forum; the Right 2 Know; the National Association of Broadcasters (NAB), the Independent Communications Authority of SA (ICASA), the SABC, eTV and the Association of Christian Media; Interactive Entertainment SA; the Jewish Board of Deputies, Cause for Justice and the Emma Sadler Social Media Law; Media Monitoring Africa and the SOS Coalition; the Centre for Constitutional Rights and the Internet Service Providers’ Association.

The SA Communications Forum was just one of the stakeholders, to the exclusion of none, whose inputs had been responded to. It had felt that the term “Child Sex Abuse Material” was preferred terminology to “Child Pornography”. The DOC and the FPB, however, felt that the term “Child Pornography” should be retained as it was in line with the principal act dealing with sexual offences, i.e. the Criminal Law Amendment Act. The definition could not be changed in secondary legislation. The South African Communications Forum felt that the powers of compliance monitors in section 15(A) were too broad and open to abuse.

The DoC and the FPB had done a comparative analysis with countries like the UK, Canada, New Zealand, Singapore, the USA and Australia. It had been found that in all these countries, online content was monitored by individual members of the public, who were able to issue a complaint to the relevant authority, which would then be acted upon. Similar provisions had been introduced in the Bill in section 18E. With respect to section 15A, to ensure that the right of dignity and privacy was upheld, the section made it obligatory for the consent of the owner of the premises/online medium to be obtained prior to any inspection.  

Mr R Tseli (ANC) asked what if the owner of the premises did not give consent to enter the premises.

Mr Kgarabjang responded that if no permission was obtained, then a warrant would be obtained.

Ms N Tolashe (ANC) appreciated the work done by the DoC and the FPB on inputs made, but wished the responses had specifically stated whether there was agreement or disagreement with the inputs that had been made. She referred specifically to the suggestion made about the use of the term “Child Sex Abuse Material “. Was the DoC in favour of it?

The Chairperson said that the DoC should state in its response whether they accepted or did not accept the suggestions and inputs made by stakeholders. What was the stakeholders’ take on things?

Mr M Gungubele (ANC) pointed out that the DOC was explaining its rationale. What were stakeholders saying? He said that the law was always evolving. What if the stakeholders made a valid point that in the future had to be considered? Perhaps in the future, the term “Child Pornography” could be changed in the Criminal Law Amendment Act.

Mr Kgarabjang responded that the SA Communications Forum had accepted the DoC’s response, and the term “Child Pornography” would be retained. He recommended that Members read the discussion document on the Bill, together with the presentation document.  

Adv Nevondwe explained that the SA Communications Forum was saying that the term “Child Sex Abuse Material” was being used globally/internationally. When a child pornography crime was committed, the Criminal Law Amendment Act would be read together with the FPB legislation. The Department of Justice and Constitutional Development could in the future decide if it wished to amend the Criminal Law Amendment Act to change the definition of child pornography to child sexual abuse. The meanings of the two terms were the same.

Mr Gungubele said that the responses given were both technical. If the term suggested by stakeholders was used internationally, then it must have been thought out properly. Why was it preferred? Members as legislators changed society.

The Chairperson said that the question was clear. Why was the term “sexual abuse” preferred?

Mr Risiba responded that a number of studies had been done, and perhaps SA needed to move with the rest of the world. The challenge was about aligning the FPB legislation with the Sexual Offences Amendment Act.

The Chairperson asked whether Members were in agreement that perhaps SA needed to move towards the use of the term, “sexual abuse”.

The Committee agreed, and the presentation continued.

The SA Communications Forum had also felt that the definition of hate speech was too broad. It was suggested that the definition be replaced with the definition of “prohibited content,” which would include provisions of section 16(2) of the constitution and sections 16(2), 16(4) and 18(3) of the Act. The DoC and the FPB had made the change, as had been suggested.

The Forum had suggested that the words “commercial purposes” be included in the definition of “distribute”. The FPB and the DoC had accepted the suggestion, and the Bill had been amended.

The Forum had felt that section 18(8) sought to impose restrictions on ICASA. The DoC/FPB was in agreement, and had deleted the section.

Another concern raised by the SA Communications Forum was that section 18E did not accord the respondent of illegal content an opportunity to be heard before content was taken down. The cross-reference to section 77 of the Electronic Communications and Transactions Act, had been done. This outlined the procedure to be followed regarding take down notices, and provided the other party an opportunity to respond.

The Forum supported the accreditation of foreign rating systems and the establishment of an independent classification authority, as proposed in section 18(c). The FPB had, however, been advised against the establishment of an independent body for film classification, as this would result in the FPB outsourcing its mandate. The Bill now made provision for co-regulation, which entailed self classification by online distributors using FPB guidelines, and under the regulatory supervision of the FPB.  

Additional amendments to the Bill made by the DoC/FPB included that the definition of internet service provider had been substituted with the definition as contained in the Electronic Communications and Transactions Act (ECTA), as the primary legislation regulating Internet Service Providers (ISPs). The term “internet access provider” had been inserted to accommodate internet cafes, as they did not fall within the definition of internet service providers, as defined in the ECTA.

Mr Mongameli brought the Committee’s attention to the fact that with the Bill, there were rules of Parliament that had to be complied with. The proposed amendments to the Bill were extensive and substantial, and hence Rule 286(4) of the National Assembly required the Committee to obtain the permission of National Assembly to extend the subject matter of the Bill.

Ms Kadi spoke about the concern of stakeholders that the voice of children had not been heard in the Bill. It depended upon how work was done on the ground. The FPB had interacted and engaged with stockvels, churches, teachers and guardians of children. In 2015, it had done a study with the University of SA (UNISA) on the impact of content on children. Children watching violence tended to want to watch more violence, but on sexual content children were shy and looked away. The aim was for the FPB to become the “10111 emergency” for children. There had been various campaigns, and impact studies had been done. The FPB worked with the Departments of Education. Parents also needed to take care of their children.

Mr Ncheke noted that one of the aims of the Bill was the regulation of online content. The issue was about how content would be regulated. The initial Bill had said that streaming was not broadcasting and fell within the jurisdiction of the FPB. The ICASA could suspend licences. However the constitutional issue was that the FPB could not tell the ICASA which licences to revoke. Certain sections in the Bill had been removed and video on demand fell within the jurisdiction of the FPB. Only broadcasting fell within the jurisdiction of the ICASA.

Mr Risiba referred to the concern over the constitutionality of section 16 of the Act, and said the aim of drafters had been to protect content creators, which included people who produced documentaries. On the constitutionality of the concept of prior classification, discussions had taken place on online games. Online games could not be disregarded. The Print Media constitutional court case had been taken into consideration. Content creators would be part of the classification process.

Mr Munzhelele said that the DoC was doing a broadcasting review process. He concluded by affirming that the Department would continue to work with the Committee on the processing of the Bill.  

Discussion

Ms C Dudley (ACDP) referred to page 30 of the discussion document of the Bill and said that the XX classification must not be watered down. She noted that the organisation, Cause for Justice, had made inputs on clauses 16(4)(b) and 18(3)(b) of the Bill. She said that her constituency preferred that the XX classification provision should be left as it was in the original Bill, or that a new formulation be drafted.

Mr Risiba responded on the issue of whether the amendments had watered down the XX classification provision, and whether it would have been better to have left the provision as it was in the original Bill. He explained that the amendment had been made to simplify the language used. The section was objective. Whether the removed words remained or not, there would still be classification as XX. There was no need for the deleted words to remain in the provision.

The Chairperson said that the process was at the stage where the DoC had to respond to inputs made by stakeholders. The presentation had captured the contributions of stakeholders.

Ms V van Dyk (DA) pointed out that there was a huge difference between the Bill as it was, compared to the Bill with amendments as it now stood. The way the Bill stood at present was how it should have been presented to Parliament. Inputs from stakeholders should have been incorporated into the Bill before it came to Parliament. Why did the Committee have to give the DoC instructions to get comments on the Bill from stakeholders? She was concerned that the Department of Performance Monitoring and Evaluation had been only given three weeks to produce a socio economic impact assessment system (SEIAS). How long did it usually take? If the Department of Justice and Constitutional Development was busy drafting a hate speech bill, should it not be put on hold until the Bill was passed? Referring to page 13 of the DOC’s response document, she asked how the Bill had been amended to give effect to constitutional court cases.

Mr Kgarabjang responded on whether to hold on with hate speech legislation, and said that the DoC had reached the conclusion, after meeting with the Department of Justice, the State Law Adviser’s Office and the South African Law Commission, that the Bill would not adversely affect the hate speech bill. 

Ms Kole, on timeframes for the SEIAS, said that the DPME had had several engagements with the DoC. The impact assessment was considered urgent. The process was at an advanced stage. An independent analysis of the report had been done.  One of the issues that had been raised was about how the DoC had a fragmented approach to dealing with harmful content. On the Cybercrimes and Cybersecurity Bill, a cyber crime committee had been established with clear rules. There were some things in the Bill that could be strengthened. There was a role for the Department of Basic Education to implement digital literacy at schools. The Department of Higher Education should also be engaged. A clear costing of the implications of the Bill was also needed. The DPME would present a report to the Committee at its next meeting.

Mr Risiba, on pre-classification, said that the constitutional court had stated the test to be whether there were less restrictive measures with which to reach an objective. The DoC had come up with a new Clause 18 (c) which was less restrictive and met the requirement. The right of distributors’ artistic freedoms were not stifled.

Ms P van Damme (DA) had procedural concerns. She said that the process on the Bill had taken place backwards. Consultations on the Bill should have taken place before the Bill was presented to Parliament. The Committee’s time had been wasted. Why had the DoC not brought a good bill before the Committee in the first place? The Committee also needed to first see the results of the social impact assessment before deliberating on the Bill. She felt that the Committee could not pass a bad Bill, definitely not by the end of 2016.

Mr R Tseli (ANC) was pleased that the DoC had tried to address issues that had been raised by stakeholders. He did not feel that the Committee’s time had been wasted. The Bill was now before the Committee for consideration. He said that on tariffs on fees and career classification, the FPB had responded that fees were being reviewed. He was not satisfied with the response that fees were being reviewed. He asked whether the FPB agreed with stakeholders that the tariffs were too high, or did it feel that tariffs were not high. On enforcement committees and other committees, to him the crux of the matter was about the independence of these committees. The complaint by stakeholders was that if these committees were appointed by the Minister of Communications, they would not be independent. With the amendments made, it was now up to the Council to appoint committees. Were decisions of these committees binding or could the Council review decisions taken? Could the committees make recommendations to the Council? The DoC was asked whether Committees could take decisions and implement them.

Mr Risiba said that the FPB was in agreement with inputs made that the fee structure was problematic. It was so problematic that it could pose barriers to entry for small distributors. He said that that the principal act was clear on the review of tariffs. There would be regulations on fees that would accompany the Bill. On enforcement committees, he said that the approach had been taken that where respondents were non-compliant – say, for example, if a movie group like Nu Metro or Ster Kinekor had put up wrong age restrictions for a movie -- there could be a body or forum to investigate the complaints received. Decisions taken could be appealed by the aggrieved entity at an appeals tribunal.  

Advocate Nevondwe added that the enforcement committee was independent and was appointed by the Council. Candidates who had the necessary skills and expertise would be appointed. Decisions of the enforcement committee would be binding and final. Appeals could be made to the appeals tribunal. The Board was in charge of management, and the Council was the accounting authority. He said that the definition of hate speech had been replaced. The decision had been made to deal with the concept of prohibited content, rather than hate speech. The FPB was more focussed on prohibited content. This was in line with the FPB Act.

The organisation Right 2 Know had rejected legislation that was overly restrictive. They felt that onerous legislation would stifle the empowering democratising potential of the internet. He said that the intention was not to regulate the whole internet. Children should not be exposed to harmful content. The aim was to protect children.

Ms Tolashe appreciated the input made by Ms Kadi regarding the organisation, Voice of Children, and the process but said that it was not reflected in the response document of the DOC.

Mr Kalako also appreciated the DOC’s responses to inputs made on the Bill. The DoC had clarified issues. The Bill was, however, substantially different now compared to what it had been. The Committee had insisted that the DoC put the Bill out for comment, and this had been the result. If the rules of Parliament did say that the Committee had to obtain permission from the National Assembly in order to proceed on the Bill as it now stood, it had to be done. He asked the DoC, the FPB and others who had been involved in the Bill to provide whatever information they had on it to the Committee.

Mr Gungubele said that over the last few weeks the DoC had done a great deal of work on the Bill. It was a great deal of information that had been presented to the Committee. The Committee needed to process the information presented to it.

The Chairperson said that the Committee needed to deal with where they were now on the Bill, and thereafter deal with the issue of Rule 286(4) which required the Committee to obtain the National Assembly’s permission to deal with the Bill.   

Mr Gungubele said that the Committee needed to respond intelligently before the Bill was referred to the National Assembly. What was meant by “harmful to children”? The level of harmfulness for children differed. Perhaps the impact assessment of the DPME would shed some light on the matter. He asked what test would be used to determine what was harmful to children.

Ms Van Damme asked why the impact assessment could not have been done first, before the Bill was brought to Parliament. What if more amendments were called for after the impact assessment?

The Chairperson suggested that the Committee deal with the process on the Bill.

Mr Mongameli said that the Parliamentary Legal Adviser’s Office needed to give input on the issue.

Ms Ngema responded that the National Assembly rule that was applicable was Rule 286(4)(c). The rule applied to bills that were amending existing legislation. The Bill, inclusive of amendments, went beyond what it had originally been introduced to Parliament. There was thus an obligation by the Committee, as part of the National Assembly, to refer the Bill as it now stood back to the House. The obligation was set out in Rule 286(4)(c). She explained that the Committee had to take a resolution which would take the amendments in the Bill forward. However the Committee needed to get the permission of the National Assembly.

The Chairperson said that it was important for the Committee to package its deliberations on the Bill properly. The Committee could not do a rush job or shoddy work. A good Bill was needed. If need be, the Committee could extend its time period for work on the Bill. He said that the Committee would deal with any loose areas at its next meeting.

On the ICASA issue, one more ANC member had been needed on the sub-committee that had been formed to conduct interviews. Ms Tolashe had been elected to fill the slot. He said there had been six candidates on the short list of candidates, but after security checks, one of the candidates had fallen away, which left only five. The Committee would deal with interviews the following week.

The meeting was adjourned.