Films and Publications Amendment Bill: deliberations

HOME AFFAIRS PORTFOLIO COMMITTEE
8 May 2007
FILM AND PUBLICATIONS AMENDMENT BILL: DELIBERATIONS

Chairperson: Mr H Chauke (ANC)

Documents Handed Out:
Opinion Paper: The Constitutionality of the Films and Publications Amendment Bill, 2006
Films and Publications Amendment Bill [B27-2006]
Films and Publications Act

Audio Recording of the Meeting

SUMMARY
The Committee deliberated on the Films and Publications Amendment Bill. The discussion centered on the need to protect against child pornography without limiting freedom of expression, and on the issue of the constitutionality of Clause 22(3). The issue of exemption for newspapers under this clause created much debate. Also of issue was the question of self regulation and the regulation of broadcasting media by another body other than the Independent Communications Association of South Africa.

MINUTES
The Chairperson opened the deliberations on the amendments made to the Film and Publication Act (1996), which ‘sought to amongst others define child abuse in relation to publications, films and interactive computer games’ as well as to regulate the broadcasting of certain publications, films, etc as a measure to protect children from age inappropriate materials and the associated sexual exploitation and degradation’.

The Chairperson stated that the Committee would not rush the process of considering the Bill, but would ensure that the outcome was the result of detailed and committed deliberations on the Bill.

Mr K Morwamoche (ANC) raised concern about members of the Committee who during the public hearing, had aired party positions on the issue. He argued that with regard to parliamentary procedure, these actions were not appropriate. He noted that the Bill’s Memorandum stated that it had not been felt necessary for the Bill to be referred to the National House of Traditional Leaders. He expressed surprise at this decision asked the State Law Advisor to clarify this.

Mr Morwamoche asked why Clause 20 of the Bill repealed Section 21 of the Act. This section guided the media on how to appeal decisions of Supreme Court. He asked for the implications of this action. He also requested clarification on whether the Bill was proposing that the Film and Publication Board take the role of an independent Chapter 9 institution.

The Chairperson replied that the Committee would deliberate later on specific clauses as raised by Mr Morwamoche.

Mr Beukman (ANC) emphasised that the aim and mandate of the ANC was to deal with the issue of child pornography and it did not desire to muzzle the freedom of speech. He said that it was important to focus on the question of child pornography. He mentioned the submissions that had raised the issue of self regulation and noted the need to balance these with the representations from the community. He recalled that in the conversations with ICASA and others there was an indication that some of the current codes, which were not working, needed to be supplemented or addressed. He suggested that the Committee request the stakeholders to return and asked if, looking at the ‘current regime’, there were ‘alternative steps’ to address the concerns raised. Finally he reiterated the need to focus on the issue of child pornography.

Mr S Swart (ACDP) first noted that the African Christian Democratic Party was opposed to all forms of child pornography and welcomed all attempts to deal with the issue. He expressed concern at the use of tabloids to promote child pornography as did some films on eTV. He understood that self regulation may need overhauling, but denied that it had to be ‘done away with’ in its entirety. Instead he said that it would be good to recall some members of the printed press and broadcasting media to hear how self regulation is taking place. He also expressed concern with the provisions in the Bill and the way in which they were presently worded to construe an infringement of freedom of the press, despite the ANC’s aim not to ‘muzzle’ the press. He urged the Committee to look at the issue very carefully. He expressed grave concern about the extension into broadcasting, especially as there was sufficient provision for the offence of broadcasting child pornography. He noted that ICASA was an independent body dealing with the issue of broadcasting and stated that ‘this aspect would amount to an unconstitutional amendment’.

Regarding the printed media, Mr Swart noted section 22(3) of the Act had been deleted and suggested that to deal with the issue of child porn under 22(3), one could limit the exemption to say ‘save with reference to section 27 relating to the distribution of child pornography'. He recommended that the simple limitation of exemption, as opposed to the total deletion of the exemption under section 22’ could be a means of dealing with the issue of the distribution of child porn by the printed media. He also expressed great concern with the extension of the issues relating to sexual conduct and reporting on violence and hate speech. He noted unease with the broad definition of hate speech as this was not in terms of the Constitution and that this could result in constitutional problems.

Ms S Kalyan (DA) asked for some clarity regarding the proceedings. She asked if the Bill was in the same form as it was when introduced earlier last year. She asked also what were the resolutions of the meeting held by the Minister of Home Affairs and the stakeholders and whether the Committee had access to the reports from the meeting.

The Chairperson asked members to hear the responses from the State Law Advisor on the issues raised. He also requested that members’ party positions be heard at a different time.

Mr Gideon Hoon (Principal State Law Advisor) replied to Mr Morwamoche’s question, saying that the Bill was not referred to the National House of Traditional Leaders because the Bill did not deal with customary law. He said that he was not able to speak on the issue of Chapter 9 institutions, but referred the Committee to the Department.

The Chair requested the viewpoint of the Film and Publication Board (FPB).

Ms Shokie Bopape-Dlomo (FPB Chief Executive Officer) raised the issue of ICASA’s role and whether this role revolved around issues of licensing or issues of content. The FPB was created to deal with content isses, while ICASA was focused on broadcasting matters. ICASA dealt with content as an incidental consequence of their licensing terms and conditions, though not necessarily as a core function. She added that in ‘light of the resources that [FPB] did not have’, it was appropriate to look at what various media institutions were doing since there was a lot of overlap. As a result, she suggested the need for streamlining.

The Chairperson asked the Department to comment on the issue of content and the mandate of ICASA to deal with licensing and content.

Adv Deon Erasmus (Acting Chief Director: Legal Services, Department of Home Affairs) requested clarification from the Law Advisors on the use of the word ‘regulate’ in Section 192 of the Constitution. He asked if this referred to the regulation of broadcasting in terms of licensing and content.

Ms Refilwe Mathabathe (Parliamentary Legal Adviser) commented on Ms Bopape-Dlomo’s earlier interpretation and Adv Erasmus’ comment and said that ‘regulate’ in terms of licences, was too limited. She argued that the term ‘regulate’ had the meaning to ‘regulate broadcasting in the public interest’. This was more than just issuing licences because it involved imposing conditions, which in effect also involved regulating content. She argued that to interpret the section in this manner was unconstitutional.

The Chairperson turned the discussion towards the current relationship between the Board and ICASA. He questioned how the Board related to the independent body, ICASA, in terms of its guidelines currently in place.

Mr Iyavar Chetty (Head: FPB Legal Section) referred the Committee to sections 26(4), 29(1), and 29(2) of the Films and Publications Act and said that ICASA was already bound and limited by the provisions made in these sections of the Act as well as other legislation. The Act under section 31(3) required the Board to draft guidelines annually and publish them, invite public input on the guidelines and revise them thereafter. The finalised guidelines were then used by the Board and the Review Board to determine what was harmful or disturbing. Mr Chetty said that these procedures had been followed by the Board at the end of each year.

Regarding ICASA’s interaction with the Board, Mr Chetty said that such interaction is limited because the Board prefers to interact with the actual broadcasters, who have their own classifiers and guidelines. He noted that the guidelines of broadcasters were different from the Board's since it was more focused on revenue than moral appropriateness for children. Of importance, was the discrepancy between the prosecution of offences at the level of the Board and at the level of the broadcaster. At the Board level, decisions were prescriptive and criminal offences could be prosecuted, whereas at the broadcaster level, prosecution was limited in that their guidelines were merely cautionary. Thus there is discrimination in the prosecution of film outside broadcasting as compared to those prosecuted through broadcasting. Finally, Mr Chetty stated that cooperation depended on the degree to which the guidelines did not interfere with the broadcaster’s maximizing of advertising.

The Chairperson turned deliberations to the question of the constitutionality of repeal of Section 21 of the Act.

Adv Erasmus stated that it was the opinion of the Office of the State Law Advisor that the repeal of Section 21 of the Act may be in conflict with the right to the freedom of the press in so far as the repeal removed the exemption of newspapers from the provisions of the Act. He argued that perhaps the exemption should be retained, but that print media should not be exempted from the criminal provisions of the Act. Other methods were needed to pull the reigns when provisions of the Act were contravened.

Ms Shokie added that another unforeseen issue was that of pre-classification. It was not feasible for the FPB to deal with the daily submission of material for the media for pre-classification. She argued that if this exemption was removed, then there should not be any issues regarding constitutionality. She added that it was an oversight and a mistake to not include the issue of incitement to violence.

Additionally, Mr Chetty noted that discrimination is ‘already very wide in the Constitution’ and that prejudice can be based on a number of other issues aside from race, sexual orientation and gender. The Act provided that regulation is done by means of classification and has set out procedure on how classification occurs through the appointment of a classification committee, etc. He noted that as a result, by default, newspapers are excluded from classification; however they cannot be excluded from the offence provision of the Act. He added that the exclusion of newspapers from classification meant that they would not be subject to the regulatory functions of the Board. There would be a set of guidelines (determining what is harmful and inappropriate) in which newspapers should participate in establishing.

The Chair interjected that the newspapers are meant to be independent and this might affect their participation in the guidelines.

Mr Chetty replied that newspapers have a statutory body and a code of conduct regardless. He reiterated that newspapers needed to be assured that they would not be subjected to the regulatory functions of the Board, but that they could not be excluded from the criminal provisions of the Act, if offences were made.

The Chair noted the issue of the guidelines and said that it would be dealt with later.

Mr Hoon agreed that the earlier opinion stated by Adv Erasmus was the opinion of the State Law Advisor.

Adv Erasmus added the conclusion that Clause 14 of the Bill dealing with classification of publications, was not in conflict with the Constitution. This was based on a legal opinion that had been given.

Mr Morwamoche raised the matter of broadcasting. He asked if there would be a conflict in terms of separation of powers if FPB were to regulate, since broadcasters are regulated already by an independent body.

Ms Mathabathe spoke regarding Section 192 of the Constitution. She was of the opinion that to bring broadcasters under the regulation of the Board would be unconstitutional. She argued that while other legislation was relevant for broadcasters, it would be unconstitutional for legislation to place the regulation of broadcasters under any body other than ICASA. She also raised the problem of Clause 14 of the Bill and argued that newspapers would have to submit their articles for classification and this would amount to censorship and would therefore be unconstitutional. She argued that this would be an infringement of the freedom of expression right in Section 16 of the Constitution; and it would not be a reasonable and justifiable limitation according to Section 36 because it would not be limiting the right but taking it away completely.

The Chair requested Ms Bopape-Dlomo provide a response.

Ms Bopape-Dlomo noted several points. She raised the issue of public participation and asked how public opinion was being accommodated. She referred to Section 28 of the Constitution which states that the interests of the child is paramount and argued that more attention needed to be paid to this. Finally she felt that the Committee was underplaying the issue of propaganda and incitement to war with regard to the freedom of the media and freedom of expression. She urged the need to pay attention to obligations and responsibilities.

The Chair likewise raised the issue of public opinion. He urged that the Committee take into account the views of ordinary people in looking at the way forward. He also requested further clarification on the issue of exemption and asked for a definition of the stakeholders that would be affected by the Bill.

Mr Swart reiterated his earlier proposal to bring the printed media under the provision of the Bill and remove the exemption under section 27. But he expressed confusion about section 27(1) and requested legal clarity about the section and whether or not the printed media was subject to the criminal sanctions in the provisions of the Bill. He doubted that the printed media was subject to the Bill and expressed concern that although section 27 created statutory offence, all statutory offences would not apply to the printed media if the printed media was not subject to this section.

Mr Chetty added that the section 22(3) exemption did not extend to exemption from the provision. He stated that it was not Parliament’s intention that nobody but printed media could publish child pornography. He noted his opinion that the Court would hold that the printed media be exempt from classification and regulation by the Film and Publication Board, but not necessarily from the criminal provisions.

Ms Bopape-Dlomo added that it is important to clarify in the law the specific expectations for media and broadcasters. She said that the Court would now have to be relied upon to read into the law and interpret it.

Additionally Ms Mathabathe said that it was better for the Committee to be clear about what it desired the legislation to say rather than waiting for the Court to interpret it.

Adv Erasmus agreed with Ms Bopape-Dlomo and Ms Mathabathe. He referred again to section 22(3) of the current Act, which exempts member newspapers of the Newspaper Press Union of South Africa from coming under the provisions of the Act. He argued that this needed to be taken into consideration when determining whether or not newspapers like The Voice, which often contained much nudity, would be under the provisions of the Act.

The Chair countered that the Newspaper Press Union of South Africa was no longer in existence and so the section 22(3) still posed problems. He expressed concern that the clause was not being amended to recognize this fact.

Mr Chetty was concerned with the certainty of section 22(3). He argued that the term ‘newspaper’ was problematic because it was unclear whether it referred to the editor, the journalists, the driver of the van etc. And as a result, it was difficult to know who would be charged with the crime if it occurred. He asked that the debate centre not around ‘newspaper’ but on who could be charged if a crime occurred.

Mr W Skhosana (ANC) asked if addendums and inserts into the newspaper that were in breach of the criminal act could be charged. He asked if the newspaper would be held responsible or the author of the insert? He also asked what clause in the Bill prevented newspapers from using young children under 18 to distribute newspapers that contained content inappropriate for them.

Mr Beukman returned to the question of self regulation. He stated that in his understanding of the Act, the Act was only applicable to television stations. He recalled an earlier meeting last week in which it was noted by a representative from a subscription service that they do not fall under the Act. He wanted clarification on whether this was a matter to be raised with ICASA or not. He also asked for clarity on the status of the codes of conduct being formulated by the subscription service. He was concerned that private groups would not fall under the Act and would not be bound by it.

Mr Morwamoche asked how the FPB would handle the implementation of new legislation dealing with child abuse.

Adv Erasmus replied that there would have to be synergy in the three different Acts administered by the different departments. He said that in order to implement this, streamlining would have to occur. He encouraged that the legislation speak with one voice about the definition of sexual offences in all the bills.

Ms Bopape-Dlomo added further clarification that the FPB focuses mainly on images and also on what one reads. The FPB had been working on the Sexual Offences Bill and that this was more difficult to deal with than the Films and Publications Act because it involved offences like taking pictures of a crime against a child as opposed to actually committing a crime against a child. She returned also to the issue of self-regulation which had been a concern of the FPB. She noted that FPB had been working with MNet and that MNet was concerned with the practicality of self regulation since most often they did not have control over what they brought into the country, but rather were dependent on what their providers abroad told them. She said that paying channels would be more difficult to regulate. There were those parents who felt that their children could watch anything and were concerned that this was a right. As a result, there was a lot of reliance on parents to control what their children watched. She noted however, that the main problem was television which was more accessible to children and especially children in child-headed homes and single parent homes.

Ms Bopape-Dlomo returned also to the question of magazines like that inserted into the Sunday Times. She said that the legislation needed to clarify this since the Times formed a part of a newspaper, but had been deemed a magazine.

Mr Beukman said that the Act perhaps did not speak to the aim and objectives. He replied that the answer could lie with self regulation and that the Act then perhaps did not deal with the problem.

The Chair noted the international context and was concerned that South Africa had become a dumping ground for violent and sexual movies which were not found in Europe and elsewhere. The Bill, he said, created problems because it was not clear what the Committee was trying to address in the Bill. He asked whether the manner in which the Act was amended corresponded to the challenges that the courts themselves had referred to. He argued that the amendment must be able to address the problems resulting from the lack of clarity.

The Chair commented on the need for further discussion on the issues. He called for the various codes of conduct for broadcasting and other media currently in existence and those being written to be provided to the Committee for discussion. He also noted the need to explore the issue of core regulation for media as a way of regulating media and ensuring that children were protected from harmful viewing. He expressed hope that the Committee could finalize the Bill in June.

Meeting adjourned.