The Committee received oral submissions on the Films and Publications Bill (B37B-2015) from Cause for Justice, Freedom of Religion South Africa (FOR SA) and from the Association of Christian Media.
The Cause for Justice submission focused on the lowering of the bar as to what material may not be distributed at all in South Africa, and the proposed legalising of online adult pornography to adult internet users. It proposed that in place of the current definition, the Amendment Bill should instead include “Explicit sexual conduct accompanied by explicit violence,” and remove “which violates or shows disrespect for the right to human dignity of any person”. Regarding the definition of “XX,” the provisions of the Act should be left untouched or the provisions be redrafted and brought in line with the Constitutional norms and values. It also proposed that the Committee conduct or commission an official and credible investigation into the social and economic effects of adult pornography on South African society.
FOR SA endorsed the submissions brought forward by Cause for Justice. However their focus was on the definition of “hate speech,” which they argued was over-broad and an impermissible limitation on the freedom of speech, and for that reason unconstitutional. They recommended that the definition of “harmful” be removed from the Bill in s1(k), and that the definition of “hate speech” in the Bill (s1(k)) be amended to read as, “hate speech” includes any speech, gesture, conduct, writing, display, or publication, using the internet, which amounts to the advocacy of hatred that was based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.
The Association for Christian Media (ACM) also focused on the definition of “hate speech.” arguing that it was overbroad and recommended that all references to “hate speech” in the Bill would need to be replaced with “advocacy of hatred.” The definition of “harm” should preferably be left undefined, or narrowly defined. Criminal sanctions associated with “hate speech” and/or “advocacy for hatred” should be removed from the Bill, as these could be dealt with in other legislation.
The Members were concerned that certain grounds for discrimination, such as sexual orientation, were not included in the proposed definitions of the religious groups. They also questioned who made up the membership of the religious groups, and whether non-religious people were accommodated.
The issue of the Bill’s classification was raised, with Cause for Justice arguing that it had been incorrectly tagged as it was concerned with consumer protection and therefore should be tagged as a s76 Bill. The Parliamentary legal services stated that the Bill did not substantially deal with consumer protection, and had therefore been correctly tagged as a s75 (National Assembly) Bill. They added that they would go back to the drawing board in relation to the definition of “hate speech,” as it uncertain to them whether it was out of their scope or not.
The chairperson said his opening remarks that he would grant every presenter ten minutes for their presentations. The Committee would hear all the presentations and then engage.
Mr Ryan Smit, Executive Director: Cause for Justice, asked whether it would be possible to allow speakers more time to present, considering out of the five submissions in the programme, only three organisations were present.
The Chairperson refused the request, stating that the most important part was the part on engagements emanating from the presentation, and the outcome.
Cause for Justice: Oral Submission
Mr Smit said his organisation was there to speak on South Africa’s response to one of the biggest public health crises faced by our nation. In the United States, a country which was synonymous with the production of sexually explicit material, ten state legislatures had already, in short succession, passed a declaration declaring pornography a public health crisis.
The two main concerns that Cause for Justice highlighted were the lowering of the bar on what material may not be distributed at all in South Africa, and the proposed legalising of online adult pornography to adult internet users.
The proposals for the Amendment Bill included changing the definition of “XX” by removing the following:
Explicit sexual conduct which violates or shows disrespect for the right to human dignity of any person;
Conduct or an act which was degrading of human beings and;
Conduct or an act which constitutes incitement of, encourages or promotes harmful behaviour.
It was proposed that in place of the above, the Amendment Bill should instead include “Explicit sexual conduct accompanied by explicit violence,” [Remove: “which violates or shows disrespect for the right to human dignity of any person”].
The question the Department and the Committee needed to answer was why they would want to set the bar so low. Why legalise the distribution of material containing all manner of paraphilic disorders, including necrophilia, coprophilia and urophilia (refer to written submissions for examples). Why allow people to be degraded and dehumanised in media content?
It was further proposed that the definition of “X18” should be changed by removing the following:
Only accessible by and distributable to adults inside an “adult premises” (section 24(1) and (2)).
It was proposed that the above should be replaced with the following:
Accessible by and distributable to adults online, subject to conditions including the prevention of access by children (new subsection 24(3)).
The elements proposed to be removed from the “XX” definition would either become “X18” classified or lower, in terms of the Film and Publication Board (FPB) classification guidelines.
The Bill proposes the inclusion of sexual intercourse with a human corpse in the definition of “explicit sexual conduct” in section 1. It then fails to amend the “XX” definition to include this extension in the “XX” definition.
Cause for Justice proposed, in relation to the definition of “XX,” that the provisions of the Act be left untouched or that the provisions be redrafted and brought in line with the Constitutional norms and values, as was proposed by the minority in the Print Media case.
In terms of legalising online distribution of hard core adult pornography, Cause for Justice proposed that the Committee:
Conduct or commission an official and credible investigation into the effects -- social and economic impact -- of adult pornography on South African society;
In the interim, until such time as an official investigation had been conducted, as far as the distribution of hard-core (“X18”) adult pornography to adults was concerned, keep the current “licensed adult premises” regime (sections 24(1), (2) and 24A(3) of the Act) intact, as it strikes a constitutionally justifiable balance between protection from harm and protection of human dignity on the one hand, and freedom of expression on the other.
Other concerns raised were available in the written submissions.
Freedom of Religion South Africa: Oral Submission
Adv Nadene Badenhort, legal counsel, Freedom of Religion SA (FOR SA), said that their concerns related primarily to the proposed definition of “hate speech” in the Bill. With regard to the remainder of the Bill, the submissions made by Cause for Justice were affirmed and endorsed.
The proposed definition of “hate speech” in the Bill was over-broad and an impermissible limitation on the freedom of speech, and for that reason unconstitutional, and could have a major chilling effect on the freedom of speech, including religious speech.
The definition of “hate speech” in the Equality Act 2000 had been challenged for the same reasons in the Qwelane case, which was currently pending before the Supreme Court of Appeal. The Committee needed to be very careful in straying further than what the Constitution allowed, otherwise it might open itself up to the very same challenge as applied to the definition of “hate speech” in the Equality Act, which was currently before the Supreme Court of Appeal.
The Bill sets a much lower threshold for “hate speech” than what was required in the Constitution. The Bill’s hybrid test for “hate speech” makes it difficult for the public who needed to know what kind of speech was not allowed by the law, and indeed for those who needed to enforce the law; they needed to know what the test for “hate speech” was. The Bill’s definition was an erosion of freedom of speech -- the test for “hate speech” had to be at a higher threshold. The Constitution did not protect people against offensive speech, -- it protects against “hate speech,” and the two must not be conflated.
As a result of the current definition of “hate speech” in the Bill, believers would be placed in the impossible situation of exercising a choice between obeying their religious convictions or beliefs on the one hand, or obeying the law, with a form of punishment -- whether it be financial penalties or criminalisation -- should they choose to obey their religious convictions rather than the law. No person should ever have to exercise such an unconscionable choice, and the state as a protector and defender of the Constitution, should also protect its citizens from having to do so. Should the current definition of “hate speech” remain unaltered, activists who drive an anti-religion agenda would no doubt rely on this prohibition of hate speech, which was so wide, to target religious groups and people of faith in an effort to stop or hinder the publication of comment of a religious nature, whether it was in print form or online through the internet on social media,. These could be regarded as unfavourable, offensive or intending to be harmful to people who did not share those religious convictions. These were the unintended consequences that this definition would lead to.
FOR SA recommend that:
The definition of “harmful” from the Bill (s1(k)) be removed.
The definition of “hate speech” in the Bill (s1(k)) be amended to read as follows: “hate speech” includes any speech, gesture, conduct, writing, display or publication, using the internet, which amounts to the advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”
Association of Christian Media (ACM): Oral Submission
Mr Nurden Cross, Chairperson, Association of Christian Media (ACM), said that ACM’s principal concern was similar to FOR SA’s, and that was the definition of “hate speech,” which they believe was overbroad. To narrow the definition, ACM proposed the following definition:
“Advocacy of hatred” means public support for or recommendation of a particular cause or policy made, using the internet, through speech, gesture, conduct, writing, display or publication that was based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.
All references to “hate speech” in the Bill would need to be replaced with “advocacy of hatred.”
The definition of “harm” should preferably be left undefined, thus leaving the dictionary definition by default, or narrowly defined.
Criminal sanctions associated with “hate speech” and or “advocacy for hatred” should be removed from this Bill. Criminal sanctions could be dealt with in other legislation, such as the Cyber Crimes and Cyber Security Bills, or the Intimidation Act which falls under the Department of Justice.
The way it was narrowed may not seem significant in the sentence, but it was significant in how the courts could interpret it.
There were interest special groups that would like to silence anybody who disagrees with them, and they construed a controversial opposing viewpoint as hate speech. This had been seen with regard to issues of sexuality, marriage, the sanctity of life, or on comparative religion. There needed to be a continuing debate on this. The risk was that this Bill had criminal sanctions that could potentially put someone in jail, so they might be inclined to just be quiet, whereas if it were a fine, the company takes the liability.
There had been a wrongful finding of the lower court in the Qwelane case, which presented the danger that free speech in this country could be severely narrowed. ACM advocated the alternative proposal they submitted, that would separate controversial speech from actual hate speech.
Mr C Smit (DA, Limpopo) said that in the proposed definition of “hate speech” in FOR SA’s presentation, there was a specific portion that had not been included, and that was sexual orientation. There was a lot of violence in South Africa towards people of different sexual orientations. It was understood that it was not part of the Constitution, which was already a question, but she suggested that it be included as it also falls in the same category as ethnicity, race, gender, etc.
Mr A Nyambi (ANC, Mpumalanga) said that FOR SA had claimed that they represented six million people, and wanted to know how they had arrived at the number, and who made up their membership. The concern of public participation was the core mandate of the Committee. Almost all the presenters had cited the Qwelane case, but it was still before the Supreme Court of Appeal (SCA) and the outcome was uncertain. They could not speak about it with authority, as the outcome was still unknown, and it could still go to the Constitutional Court. The reference to the case limited the discussion, because the outcome was unknown, so they could not speak of it with authority.
Mr O Sefako (ANC, North West) stated that all the submissions brought in a religious aspect to the Bill. The first presenter had spoken of a “reasonable person” and also, equally, anti-religion. South Africa belonged to all who lived in it, irrespective of their religious affiliation. Was there harmony with those that did not affiliate with any religion -- were they accommodated? It seemed that if they were not religious, they were anti-religious, and could not be affiliated with the groups. Hopefully there was no perception that those that were non-religious were the ones inflicting harm on other human beings. The presentations presented one perspective, and had all said the same thing. Perhaps if there were more groups, they would get a broader perspective.
Cause for Justice
Mr Smit stated that he was not sure whether there had been a question directed to them, but if it could be confirmed that there was, then they would be happy to respond.
The Chairperson said that the next presenter could respond.
Adv Badenhort responded on the issue of their membership, saying FOR SA represented a group of religious leaders, who represented approximately six million people in South Africa. Those religious leaders were mostly from the Christian faith, but they worked very closely with the Jewish Board of Deputies, the Muslim Judicial Council, and the South African Council for the Protection and Promotion of Religious Freedoms and Rights, which represented about 25 million people in South Africa from different faith groups. Representation was from a large perspective -- the detail on who they represented could be presented on request.
FOR SA fully endorsed the words in the preamble that “South Africa belongs to all who live in it.” Freedom of religion must and does include the right not to believe, and the right to express that non-belief.
It was indeed so that the Constitution does not include sexual orientation, but in the application of the section on hate speech, it had been extended to include sexual orientation. In the circumstances, it was better not to mention any specific grounds at all, but rather to mention the general prohibited grounds stated in the Constitution. This would ensure that one was still within the bounds of the Constitution and did not run the risk of leaving out any ground. The Constitution did not have a hierarchy of rights and did not place one characteristic over another, and it was thus important to place them on an equal footing rather than to start cherry-picking which ones one would be included, and which ones would not.
The Qwelane case was indeed still pending at the SCA, and the Committee was commended for being broad in its approach, but they were cautioned not to be broader than the Constitution. Therefore, as much as one needed to be broad in terms of thinking to see what could potentially be struck by this definition to make sure that everything that needed to be included was included, the Constitution sets the framework and one could not be broader than the Constitution.
Association of Christian Media
Mr Cross stated that there were other legal protections as well which included, for example the Incitement Act, and civil law as well. The definition that was in the Constitution was not something that South Africa had made up -- it came from international documents which were copied into the Constitution.
The SCA in the Qwelane case could declare that the Equality Act definition was invalid and that it must be restricted exactly to what was in the Constitution, or they could say that the definition was left to Parliament to determine. If they went with that narrow definition and changed the Act, this would be the right thing to do. However, voluntarily, Parliament still had the right to change the definition in the Act, regardless of what the Constitutional Court said or did not say. That was a majority view held by most groups at the hearings in 2016, where there was more diversity in the groups presenting submissions.
Belief systems must be looked at as one category, whether they framed themselves as religious groups or non-religious. They all had a similar right to freedom of speech, and that needed to be protected. There needed to be competition and difference between those views, and whether somebody expressed an atheistic view or a Christian view, there had to be an opportunity to debate that, as political parties did -- they should be able to argue with each other.
In the 2016 submissions to the National Assembly Committee, where about 30 groups presented, the majority of the groups submitted that the definition be kept narrow, to what the Constitution says.
They were trying to create a space for legitimate debate for both religious and political speech.
Mr Nyambi said that Cause for Justice raised the issue of dealing with their senior counsel, because they were of the view that there was incorrect tagging of the Bill. Could they clarify that to the Committee? They had further stated that they were of a view that there was an error of law on the part of the Parliamentary Legal services. Could they elaborate on these points so that they could come to their own conclusions as a Committee?
Cause for Justice
Mr Smit stated that Cause for Justice was a non-profit, human rights organisation that did public interest work in the legal and policy-making sphere. The Board consisted of a number of attorneys. They were legally skilled and trained individuals involved in the organisation internally. When they prepared their memorandum of procedural irregularities, this was a decision taken at an internal level. During the Committee deliberations and consideration of these issues, it appeared that there might be an inconclusive view, even from the Department’s side and how the Committee responded to that, about tagging and other irregularities. As a result of that, emanating particularly from last week’s meeting, a decision had been taken to approach senior counsel to provide an external and independent opinion, to confirm their views or not.
With regard to schedule 4 of the Constitution, which deals with concurrent legislative competence between the Provinces and between the National spheres of government, it was clear that one of the areas in which the provinces could legislate was regarding consumer protection. The Film and Publications legislation was about protecting some groups, especially children, from being exposed to certain harmful material and from premature exposure to adult experiences. One of the things that this Bill proposed to do was to take explicit sexual conduct onto the online space, and there were certain conditions attached to the distribution of adult pornography online, including preventing access for children, so that they were not exposed to this material. That had to do with consumer protection, and that was not the only provision that dealt with consumer protection. Due to the fact that that dealt with consumer protection, the Provinces needed to be consulted on whether or not they believed what the Bill proposed, and how to protect children from gaining access to online adult pornography. They had to determine whether or not those proposed provisions were sufficient to protect people in their provinces, their constituencies.
The error of law question was with regard to the Print Media judgment. It dealt with specific wording, and that was the same wording used in the current s16(4)(b) and s18(3) of the Act, regarding the definition of “XX” material. This was the material that may not be distributed in South Africa at all. One of the proposals in this Bill was to water that down, to put a different definition in place and remove what was currently in the Act. The decision of the Constitutional Court had two judgments -- the majority judgment, which looked at the wording in the Act and said that they did not need to pronounce on whether this was vague or overbroad wording; and the minority judgment, which came to the conclusion that the specific wording contained in the “XX” definition, although they considered it in a different context, would be vague and overbroad.
The issue was that when the Parliamentary legal services presented to the Portfolio Committee on Communication on this specific legal issue, they had indicated to the Committee Members that the finding of the court was that the wording was vague and overbroad, but that had been the minority judgment, which was not binding. The finding of the court was the majority judgment, which was binding. Members of the Committee had not been alert to the fact that they were not bound by the judgment stating that the wording of the Act had to be removed and replaced with a new one. The Portfolio Committee Members were suffering under an error of law -- they had come to certain conclusions which were accepted and adopted by the National Assembly when they approved the Bill, before it came to the NCOP. That was where the error of law lay. The Members of the Portfolio Committee and thus the National Assembly were not alive to the question before it. They made a call on incorrect legal facts.
The Chairperson said that after giving the Department an opportunity to comment, the Parliamentary legal services Department would be given an opportunity to express the objective and purpose of the Department being part of the engagements. This was so that they could clarify certain things and give a broad comment on the issues discussed.
Department of Communication
Mr Tshego Kgarabjang, Director: Legal Services, Department of Communication, said that he wanted to highlight that during the time of drafting the Bill, the drafters of the Cyber Security Bill and Hate Speech Bill had been consulted, and the Department of Justice, and the provisions dealing with penalties had been suggested by them. They had indicated to the Department what should be included in the Bill, so as to avoid contradictions and to ensure that the Bill was in harmony with their laws.
The Chairperson said that that was a good point -- so that there were no inconsistencies within their regime of laws.
Parliamentary Legal Services
Ms Phumelele Ngema, Parliamentary Legal Advisor, said that she would deal with the substantial concerns first, and the procedural ones at the end. In the presentations, where crucial points were raised, the main concern had been the definition of “hate speech” and the classification of the Bill. In that light, they related to the use of porn and certain publications that affected children. Having said that, the gist of the concerns lay with s16(2) of the Constitution. In fear of misquoting the law to Parliament yet again, she quoted the two specific paragraphs that were stated by the Constitutional Court in the case of Islamic Unit Convention v Independent Broadcasting Authority with regard to how s16(2) was to be interpreted. She quoted paragraph 32 and paragraph 33 of the case.
They needed to take stock of what s16(2) expressed and what s9(3) provided. Both these sections provided the grounds and the prohibited list of things that could be and could not be done constitutionally. S9(3) was on unfair discrimination, which was unlawful and could not be accepted. S16(2) was also another prohibition on purposes of expression, which was the context of the Bill. This was not a law of general application and was not applicable to all, such as the law of criminal procedures.
From what was seen in the definition of “hate speech,” it was uncertain whether they should not make reference to s16(2), or whether they were out of scope. She needed to go back to the drawing board and re-evaluate the submissions again and again. As the current definition stood, and looking at the judgment that they already had on the Qwelane case, which seeks to explain the congruence and the consistency and the implementation and application between Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), which was s10 of the Equality Act and defined “hate speech” in relation to any other provision of that Act. That section had interpreted what was in s9, and also what was covered in s16(2) for purposes of that Act and for the purposes of aligning with the obligations that the Constitution gave.
There needed to be an Act that detailed what equality was all about, and that Act would need to apply generally and consistently for the purpose of finding out what equality was, and what discrimination was. That brought one back to the principle of subsidiarity, which spoke to the provision in the Constitution stating that an attack must go the Act before it goes to the Constitution, because the detail was in the Act and not in the Constitution.
The scope that they had was restricting, and the scope of the Bill was restricting on religious rights and expression, and whatever cultural beliefs and issues that might arise. Therefore, even the Inxeba judgment addressed this, to a certain degree. There needed to be clarity on the specific purpose of this Act and the specific purpose of the Films and Publications Bill, which seeks to amend the Films and Publications Act. They needed to make a distinction between the two.
She said that her colleague would deal with the concern over the classification of the Bill.
Adv Mongameli Kweta, State Law Advisor, said the Bill had been classified as a s75 Bill, meaning that it did not have to go to the provinces to negotiate a mandate. The test for tagging a Bill was established in the Constitutional Court case of Tongoane. The Court had stated that when classifying a Bill whose provisions, in a substantial measure, fell within a function listed in schedule 4, then that Bill must be tagged as a s76 Bill. The test was to look at the provisions of the Bill entirely, and determine whether they fell, in a substantial measure, within a functional area stated in schedule 4. There was an area in schedule 4 regarding consumer protection, but then the question was whether the Bill dealt with consumer protection in a substantial measure. Was consumer protection not an issue of trade and transactions? Did children trade and/or transact pornography? There was an element of protection of children in the Bill, but was that in a substantial measure? He said that his view was that it was not.
The Bill related to the classification of publications, films and games, and to regulate online distribution of them and to provide for independent industry classification bodies, and also to curb internet use and to deal with “hate speech.” That was the gist of the Bill. In his view, the Bill had been correctly tagged as a s75 Bill because it did not deal, in a substantial measure, with any functional area provided for in schedule 4.
The Chairperson said that the supreme objective was not to duplicate the submissions that had already been made, but was part of the whole process of engagement, so that there was clarity and for the purposes of engaging one another honestly on the issue, and to deepen their understanding of the matter.
The Chairperson asked whether rhe chairperson of the FBP Board had any comment or remarks.
Ms Sarah Mangena, Chairperson of the FPB Board, said that Ms Abongile Mashele, Chief Operating Officer, would respond on her behalf.
Ms Mangena said that the Board had taken inputs that they had received, which were in the written submissions, and through the Department they had responded to them and did not want to respond to them verbally now. The key objectives of the FPB Act and the Board were to protect consumers, as well as to protect South Africans -- children in particular -- from harmful content that had been referred to earlier. They would be able to strengthen the provisions of the legislation more effectively in the digital space, so that they did not infringe on s16 of the Constitution. The inputs made today had addressed that, and that was the main objective of the Act.
The meeting was adjourned.
- Films and Publications Amendment Bill [B37B-2015]
- Films and Publications Amendment Bill [B37A-2015]
- Freedon of Religion SA presentation
- Freedon of Religion SA submission
- Remaining problems: Hate speech definition in FPB Amendment Bill
- ACM submission
- Department of Communications: Public comments and responses Films & Publication Bill