Films and Publications Amendment Bill hearings

Home Affairs

02 May 2007
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Meeting Summary

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Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
3 May 2007
FILMS AND PUBLICATIONS AMENDMENT BILL HEARINGS

Chairperson:
Mr H Chauke (ANC)

Documents handed out:
National Association of Broadcasters presentation
Cellular Operators’ Joint presentation
Cellular Operators Joint submission
Freedom of Expression Institute (FXI) presentation
Mark Oppenheimer (UCT) submission
Freedom of Expression Institute submission
Standing Together to Oppose Pornography submission
Mark Oppenheimer submission
Visionaries in Africa Volunteer Network submission
Independent Communications Authority of South Africa submission
Films and Publications Amendment Bill [B27-2006]
Films and Publications Amendment Act (2004)
Films and Publications Act (1996)

Audio Recording of the Meeting Part1 & Part2

SUMMARY
The National Association of Broadcasters shared the Committee’s concerns about the need to protect children from undesirable material. The broadcasting of child pornography was illegal, and broadcasters faced sanction for breaches. Members of the Association were subject to a code of conduct. The vast majority of complaints against broadcasters had been dismissed. Certain clauses of the Film and Publication Amendment Bill were unconstitutional.
Members questioned the efficacy of measures introduced to block access by minors to undesirable programming. The role of the Independent Communications Authority of South Africa was clarified.

The mobile cellular telephone operators made a joint presentation. There were three ways of providing content on cellular telephones and a number of different transmission methods, but the network operators were unable to monitor the content of this communication. The Wireless Application Service Providers Association enjoyed a contractual relationship with the service providers, and had to maintain certain standards. Members questioned the steps being taken by network operators to prevent the unauthorised use of handsets by minors, the connection with African partner organisations, the controls being exercised and the dangers of easy downloading from the internet.

After lunch the Committee received submissions from the Freedom of Expression Institute, Standing Together to Oppose Pornography, Mr Mark Oppenheimer, the Visionaries in Africa Volunteer Network and the Independent Communications Authority of South Africa. Mr Mark Oppenheimer made a spirited submission that much to the Committee’s and the Film and Publication Board delegation’s disbelief argued for virtual child pornography, which he believed would deter real child pornographers and would thus be useful. The Independent Communications Authority of South Africa and the Freedom of Expression Institute opposed the legislation, while the remaining two organisations supported it.

The Committee’s questions again focused on how children could best be protected from exploitation by unscrupulous newspaper editors, child pornographers and exposure to age inappropriate material. Members also raised concerns about the apparent joint jurisdiction between the Film and Publication Board and the Independent Communications Authority of South Africa and the potential problems this might create as far as the classification functions were concerned.

MINUTES
National Association of Broadcasters (NAB) Submission

The Chairperson noted that the engagement at the hearings the previous day had been robust, especially that with the print media. Common ground had been found. There had been no complaints regarding the consultation process. The Committee had been working closely with media organisations since 1996 to develop policy. It was clear that there was need to develop policy, especially for the protection of women and children. There were a number of areas involved. All agreed that there were problems with the number of members and the capacity of the organisation. A mechanism was also needed to curb the uncontrolled spread of material. As new technology was being used to spread undesirable material, the government was having to take catch-up action. The Film and Publications Amendment Bill had nothing to do with the Communications Committee portfolio, even though the Independent Communications Authority of South Africa (ICASA) was mentioned in the Bill.

The Chairperson said that there were worries over the possible imposition of press censorship. The tabloid newspapers were a new development, but this was a market where phenomenal growth was being experienced, with combined circulation now in the area of seven million copies. The Voice had been called on to apologise to the Committee twice for stories it had published. ETV had been absent in earlier sessions. The Committee needed to protect freedom of expression, and did not support new forms of censorship, but needed to exercise some controls over content. He hoped that the Committee would find common ground with the delegations present.

Mr Nolo Letele, Chief Executive Officer, Multichoice, said that the national broadcasters would be making a joint presentation, as NAB represented all broadcasters in South Africa, both public and commercial. They shared the Committee’s concerns especially regarding the need to protect children. They already ensured that there was no child pornography broadcast, as they were responsible broadcasters. However the members of NAB were concerned with the direct implications on television broadcasters of the Amendment Bill (A/B).

Mr Fakir Hassen, Manager, Broadcast Compliance Policy and Regulation, South African Broadcasting Corporation (SABC), said that child pornography was illegal in any form. This involved the depiction of children under the age of eighteen having any form of sexual contact, as well as the depiction of their bodies. Section 27(1)(a) of the Act criminalized such depiction and prescribed severe penalties. Broadcasters also had licence obligations with ICASA. The Electronic Communications Act (ECA) and Codes of Conduct regularised the position. The NAB had its own Code of Conduct, and broadcasters faced extreme penalties in terms of their licence conditions for any breaches.

SABC felt there was a need to set and state policy regarding the broadcasting of pornography. A comprehensive prohibition was needed. There was also a need to avoid the broadcast of material unsuitable for children before the watershed times. Age restriction guidelines should be made clear for nudity, sex, violence and bad language. There was a lot of misunderstanding about the watershed time and the symbols used to illustrate the age guidelines. There had to be some balance between free speech and the protection of minors. This could be achieved by sensible scheduling of programmes and the classification guidelines. These were sometimes higher than those determined by the Film and Publications Board (FPB).

Adv Steven Budlender had been asked to give an opinion to the NAB, and, having conferred with other colleagues at the Bar, he was of the view that the A/B was unconstitutional in three respects. Apart from that it was impractical, and could not be implemented in its current form.

His first concern was the attempt to place broadcasters under the jurisdiction of the FPB. No body other than the Independent Communications Authority of South Africa (ICASA) or those duly authorised by it had a constitutional mandate to regulate broadcasting content. The definition of a film was also a problem, as was the creation of offences.

The definitions were too broad and would face a challenge of unconstitutionality.

Licensed broadcasters had until now been exempt from the control of the FPB, but this would change if the A/B was passed. All programmes would have to be submitted to the FPB for vetting before broadcast. This was unconstitutional, and was also an encroachment on the role of ICASA, which was an independent and protected organisation. Thus the A/B would be in conflict with Section 192 of the Constitution. Guarantees of free expression were needed in terms of the definitions of the Constitution. There was also a chance of ministerial control being imposed. He believed that the FPB’s jurisdiction over licensed broadcasters was constitutionally invalid.

Adv Budlender stated that Clause 16(2) was also problematic. Even if the classification of films was accepted, broadcasters would still be subject to the FPB. The broad definition of a film was a problem, and the A/B provided that the definition of a film would extend to every broadcast on television. Considering the broadcasters represented by the NAB, this would already involve 96 hours of material each day which would have to be vetted. This was just not practical. It would prevent proper news coverage, as the sense of immediacy would be lost. All forms of live coverage, such as sports and other events, would be prevented. The effect of the amendment would be to create conflicts with freedom of expression, and would not be supported by the Constitutional Court. It had to be appreciated that broadcasting was a different to newspaper reporting. The A/B was unprecedented, and no democracy had this kind of legislation in place.

Adv Budlender stated that classifications had been refused for films depicting child abuse, propaganda for war and hatred, in line with the Constitution. Any references to these would see the entire broadcast cancelled. However, simply making reference to these activities did not amount to condoning them, and no discretion was given for artistic merit. The A/B went further than the Constitution in outlawing references to these activities.

The proposed new section 24A dealt with criminal offences. Freedom of expression would be violated because the definitions were too broad. This was irrational. Broadcasts were not classified. The differences had already been explained. No scenes showing sexual intercourse could be shown to under-18 audiences. When these scenes were included in a television broadcast, there could be no guarantee that children under 18 did not have access to these broadcasts. It was impossible to enforce other age classifications set by the FPB to television broadcasts. Broadcasters were not under orders from the FPB, but it was up to ICASA to police the sector.

Adv Fayeesa Kalhree-Setiloane, representing the NAB and Multichoice, said that NAB members subscribed to the organisation’s Code of Conduct. There was freedom of choice. Where applicable the Code of Conduct was invoked and where applicable Section 16 of the Constitution. The definitions in the Code of Conduct were identical in some cases to those of the A/B. The problem lay in the programming that was purchased outside South Africa.

She said that Multichoice had made adequate provision to block undesirable programs. Decoder access could be limited. Information was published about how parental control could be implemented, and how films were graded. She felt it was not necessary to amend the Act. It was difficult to apply South African law when Multichoice broadcasted into many different countries. Subscribers could block undesirable material, and Multichoice was one of the leaders in this technology. At present there were 1.5 million subscribers in South Africa, and about 50 million in the rest of Africa. Programmes were beamed into a number of territories, and it was impossible to comply with the different laws in each country. To broadcast in South Africa alone, Multichoice would have to submit all its visual material for vetting, including that material sourced overseas. This would be impossible to achieve with the pre-packaged channels such as sport and international news stations. Multichoice had no control over the material it received from abroad.

Adv Kalhree-Setiloane continued that there was already a high degree of self-regulation in the industry. ICASA had negotiated the need for different Codes of Conduct. The A/B ignored the existence of these self-regulatory procedures. The efforts of the broadcasting industry in this regard were not recognised. All necessary information was given to their subscribers, and control methods were available. Multichoice complied fully with their obligations in terms of the NAB’s Code of Conduct. She felt there was no need for further amendments to the regime of self-compliance to which Multichoice and other members of the NAB complied.

Mr Johann Koster, Executive Director, NAB, confirmed that a number of measures were being taken, including voluntary measures by the members of the NAB. He supported the principles behind the A/B, but agreed that they were too broadly worded.

Discussion
The Chairperson asked about the role of the NAB in addressing the issues raised, and what it was doing to address them.

Mr Hassen said that the SABC had a strong editorial policy to show no pornography. It also did not take advertisements for the sale of sexual services. There was an awareness campaign being shown by most broadcasters. A watershed time concept was recognised, and parents had to take some responsibility for monitoring their children’s television watching habits. He noted that several complaints had been forwarded to ICASA. Historically, 92% of these complaints were dismissed and the figure was even better in the current year with 98% of the complaints being dismissed.

Ms Bronwyn Keene-Young, Channel Director, eTV said that this station followed the same Code of Conduct and regulations as the other broadcasters. A watershed time of 21h00 was followed regarding the airing of adult programmes and their promotion. This was an internal code. The classification of films was made known. Advertisements regarding sexual services were vetted and only aired after 21h00. Adequate warnings were given to viewers both before programmes and before the promotions of these programmes. E-TV had received no complaints since they had last been summoned to appear before the Broadcasting Complaints Commission.

Mr Kuezi Mlengenya, Regulatory Affairs, Multichoice,  said it did not help having measures to combat undesirable material. Subscribers were being informed about control measures. The Dish magazine distributed to subscribers contained guidance to the classifications of programmes and instructions to subscribers on how to implement blocking features.

The Chairperson asked how successful these measures were.

Mr Mlengenya replied that research was ongoing. Subscribers were being kept informed. A call centre had been established, which dealt with higher level queries but mainly with technical issues.

Ms Keene-Young said that the nature of television broadcasting in the country would be moving towards digital terrestrial broadcasting, with viewers having to use set-top decoders to watch. Most of the problems could be controlled by parental control.

Mr K Morwamoche (ANC) said that the broadcasting companies were newsmakers. There was an emphasis on saying that mechanisms were in place, backed by fines for transgressions. This was the terrain of ICASA, which controlled access and analysis. These issues had been raised before.

Mr M Sikakane (ANC) was surprised by the legal opinion that the A/B was unconstitutional. Nothing was said about the Department of Home Affairs’ (DHA) right to regulate. He asked what should happen with this A/B.

Mr F Beukman (ANC) said that three examples of non-constitutional clauses had been mentioned today and two the previous day. He felt that the State Law Advisor (SLA) should comment on it. He asked how many cases had been referred to self-regulation, and how these matters were handled.

The Chairperson said that these questions would be dealt with in the Committee’s deliberations.

Ms N Mathibela (ANC) was worried about the blockage mechanisms, and the advertising of undesirable material. If parents were absent from the house, she asked if children would be able to override parental control methods.

The Chairperson said that the Committee should look at the necessity of establishing pornography-free channels. This issue would not be solved in a single day.

Mr Sikakane said that the presenters claimed their organisations were abiding by existing laws. Classifications would only be lowered under special circumstances.

Adv Budlender said that there had to be recognition of what the broadcasters were doing in terms of existing legislation and constitutional issues. Rulings were not made on what was good or bad taste. There was still a need for the public to hear things that they did not like. It was Parliament that had put NAB’s Code of Conduct in place. If the Committee was unhappy then parliament must amend the ECA, or the Constitution. Broadcasters complied with regulations, but should be permitted to broadcast material that was not necessarily acceptable to all. ICASA had a role to play in the process.

Ms Keene-Young said that eTV had an internal policy not to broadcast advertisements before the watershed time. Statistics were contained in the annual report but not on their website. Classifications had been lowered, but many classifications imposed on films prior to 1994 were a reflection of the thinking of the time. Some of the reasons for these more serious classifications might include the portrayal of subversive material.

The Chairperson asked about the internal Codes of Conduct. He asked who dealt with the codes.

Ms Keene-Young said that the respective companies monitored their Codes of Conduct. An annual report was submitted to ICASA.

Mr Koster said that the Broadcasting Complaints Commission (BCC ) was more visible than the Advertising Standards Authority (ASA). It had 78% penetration. The print media ombudsman received about 300 complaints each year. The BCC had dealt with 125 complaints during the year. Four of these had been taken further, and one against eTV had been dismissed. Three issues against the radio station 5FM had been dealt with. So far there had been 25 complaints registered in 2007.

The Chairperson asked about the guidelines issued by the FPB, and how they related to the broadcasters.

Ms Karen Willenberg, Director: Regulatory Affairs, M-Net, said that her station relied mostly on NAB guidelines. There was alignment in the determining of classifications, and ongoing engagement took place.

Mr Hassen added that ICASA took complaints seriously. Broadcasters falling foul of their standards could lose their licences. The classifications applied by the SABC would never be below those of the FPB. He told the Chairperson that there was no reason not to work with the FPB. Advertising was controlled by the ASA, but it was SABC policy not to accept advertisements of an adult nature.

The Chairperson said that cellular telephone network companies and television broadcasters together should address advertising questions. He asked who was in charge of this.

Mr Hassen reaffirmed that SABC did not accept advertisements of a pornographic nature.

Ms Keene-Young said that eTV researched the advertisements before they were placed. Many had in fact been refused, based on their content and services offered. Advertisers had to be members of the Wireless Applications Service Providers Association (WASPA).

Ms Kahlee-Setiloane said that Multichoice was not trying to evade the issue. They were subject to the ECA, ICASA, FPB and BCC, and also subscribed to a Code of Conduct. They accepted the current regulations.

The Chairperson remarked that there were many controlling bodies. He asked about the control of content. He also asked about the ratings applied by SABC, and if there had been joint discussions.

Mr Koster said that Multichoice had no control over programmes that originated in foreign countries. In terms of the local programming, the Code of Conduct provided very specific guidelines.

Mr Letele added that members of NAB had their own regulations. Africa was generally a conservative continent, and this had some influence over content.

Mr Morwamoche asked what the delegates meant by saying that the A/B was going too far, and pointed out that it had been in process for some years.

Ms M Maunye (ANC) asked about the balance between legislation and the intentions of broadcasters.

Adv Budlender said that the question was what the legislation could properly cover. ICASA was the body that had jurisdiction. The second issue related to what measures should be taken to control content. The right to freedom of expression did not apply to cases that involved hate speech, propaganda to war and abuse of children. A diversity of views was needed. Some viewers would object to certain material and others not. However, viewers had a right to switch their television sets off if they were offended.

Mr Sikakane said that documents had been received regarding the withdrawal of exemptions.

The Chairperson said that the role of the FBP was to monitor the content of programmes. ICASA was concerned mainly with technical issues. The question was why Parliament would want to regulate broadcasting. He would engage with other Committees on this issue.

Adv Budlender said that currently all films had to be submitted to the FPB for classification before they could be distributed. Licensed broadcasters were exempt from this requirement. A Code of Conduct was in place together with legislation. If the exemption was removed, then all broadcasters would be subject to the Act. ICASA did in fact deal with content in terms of current legislation, and it must be remembered that licences were conditional. Therefore ICASA had control over broadcasters and the FPB over all content except for broadcasting. ICASA’s control could be applied to content. There was a distinction between broadcasters and newspapers. Members of the Newspaper Union were completely exempted from legislation. Child pornography did not fall under the protection of free speech, and was seen as a special case.

The Chairperson thanked the NAB delegation for the interaction. He encouraged them to find a mechanism to deal with the issues.

Cellular Telephone Network Operators (CTNA) Submission
Mr Karabo Motlana, Executive Head: Regulatory Affairs, Cell C, made a joint presentation on behalf of the cellular telephone network operators. Content on mobile networks was distributed by a variety of means such as third parties, internet and peer to peer networks. There were a variety of delivery formats. Content could be requested by one method, and delivered by another. There were various stakeholders to create and distribute material.

Mr Motlana said that there was no control over the internet. Peer-to-peer distribution by methods such as Short Messaging Service (SMS) was also uncontrolled due to constitutional and privacy regulations. Wireless Application Service Providers (WASPs) had a constitutional relationship with the networks. Self-regulatory steps were taken by the networks. The WASPs were subject to formal regulations, but were often hard to track down. They were often guilty of sending spam. There was some control from the ECA and Film and Publication Act. There was an Industry Representative Body (IRB) in place, which had a Code of Conduct. A Code of Good Practice had been adopted on 2 November 2005. New guidelines were in place. WASPs were expected to comply with a Code of Conduct. Restrictions were placed on advertising, and there was a measure to protect children and prevent spam. Provision had been made for a separate range of numbers for services of an adult nature.

He continued that Internet Service Providers (ISPs) distributed material to mobile networks. The ISPs hosted chat rooms. He recommended that the definition of service provider in Clause 24 include chat-rooms. There was little or no control over chat rooms, and these should also be defined in the A/B. He recommended that the reference to ‘broadcasting’ be removed from Section 2(a).

Mr Motlana was concerned that the A/B referred to mobile handsets, but not to other forms of content display. A technologically neutral approach should be followed. He asked what capacity the FPB office would have to classify all material. His recommendation was that strict time frames must be included in the A/B, and these had to be adhered to. An approach of co-regulation should be followed.

His next concern related to registration of film and games. It was possible that innovation would be hampered, and time to market would be negatively affected by the amendments proposed. His recommendation was that time frames for classification should be specified, and proposed that other bodies such as the IRB should work with the FPB in this regard.

He was also concerned about Section 23 of the Act. The mobile operators recommended that the discretion of the FPB should be extended. Secondly, the legislation should consider other material such as publications and computer games.

Mr Motlana added that the mobile operators were also concerned that it was impossible for mobile content providers to comply with the amendments proposed to Section 24 together with the proposed new Section 15 A.  Furthermore, current legislation only provided for the licensing of businesses that had a physical address. His recommendations were that Section 24(1) be extended to include the licensing of virtual operators such as WASPs, which had no physical address. He proposed that Section 24(1) be amended by the addition of “e-premises”. A new Section 24 D should be inserted to define virtual adult content, virtual premises and mobile content services. An example of the suggested wording had been included in the submission.

Discussion
Mr Beukman recommended that mobile networks worked with the existing bodies. Co-regulators should create a framework for recommendations. The industry had been around for a while, and he asked why they had to wait for the legislature to take action.

Mr Morwamoche noted that the operators had a code of good practice. He asked who monitored this code, and if it was aligned with international best practice. He noted the jurisdiction of the FPB and the IRB, and asked who monitored compliance to the Code.

Mr S Swart (ACDP) was concerned over the downloading of pornography onto cell phones. He asked what further steps could be taken to prevent this, and the best way to do it.

Mr Beukman asked if the revenue generated was all in cash. Responsibility lay with parents. He asked what measures were being taken to warn the target audience.

Mr Themba Kinawa (Executive Head, Government Relations, Vodacom) said that self-regulating bodies were a relatively new phenomenon. Early handsets could not access the services now being offered, and the headsets had evolved. The institutions should address this problem. The type of headset was a practical step to prevent access to undesirable materiel. There should be a balance between low cost and more advanced instruments. For example, Vodacom already had 200 000 handsets which were blocked to prevent access to these sites. It was a simple procedure. Systems had been developed which would block all unwanted material. Adults could opt to receive this information but would have to verify their instruction by using their identity number.

He added that the networks were aligning with the law. All cellular phones had to be registered. Some measures would filter into the A/B. Information would be kept on every number. This was an ongoing process. The ECT Act of 2002 had required similar procedures. The networks were mandated to comply, ICASA had to make sure that this happened, and this had to be part and parcel of the acceptance of the code. Their role was to monitor what happened in general. The FPB should work with the regulator.

Mr Graham de Vries (General Manager, Regulatory Affairs, MTN) said that the majority of those downloading pornographic images were schoolchildren, It was not a simple thing to prevent this, and blocking mechanisms could be circumvented. There was no ubiquitous filter. The internet was an open channel, and some sites were based overseas. Software could be downloaded to disable blocking mechanisms. Children could use a parent’s handset to download the software. Transfers using Bluetooth or infrared technology were invisible. A holistic solution was needed for this problem. There was a need to understand the technology.

The Chairperson asked what had been done to educate children. He asked if the networks were genuinely working together on this problem. He asked what experience the networks had gained from their ventures into Africa. All form of graphic content had been banned in Nigeria, for example. Sexual advertising was big business. He asked whether there was any specific direction trends in the markets.

Mr de Vries said that the Nigerian example was illustrative of a far bigger problem. Pornography was banned altogether yet internet access using cellular phones would still be a problem. He would get information on how MTN Nigeria had dealt with this question. It had taken a while to agree on the IRB. Cooperation was difficult. It had been agreed to set aside a range of numbers for pornographic material. This would reduce the accessibility of the material.

Mr Kinawa added that the experience in South Africa illustrated the pervasiveness of the internet. This could not be handled through any form of counter-activity. The use of mobile telephones to access the internet was worrying, and he could not address all the issues. Some of the new handsets on the market even made provision for wireless internet. There was not much experience of operations in Africa except in Mozambique, Tanzania and Uganda. He was not aware of any problems. These were new markets. The South African market was reaching 75% of capacity.

He continued that simple handsets could be upgraded, which would enable them to use advanced services, which related to the internet environment, and software was available to bypass network controls. The Skype voice over internet programme had now about 100 million users worldwide. He asked how this could be controlled. E-education was being promoted. This obliged schools involved to have internet access, and the learners were given e-mail addresses. Paedophilia cases had risen by 40% in Australia and a mechanism was needed to combat this scourge. He would get more facts on the issue.

The Chairperson asked about the nature of the relationship with MTN Nigeria.

Mr de Vries replied that they were separate companies.

Ms Mathibela pointed out that an identity number was needed to subscribe to certain services, but a child could easily use a parent’s number.

Ms Leona Mentz, representative of Cell C, said that there were agreements between WASPs and operators. They had looked at other countries. In Australia, the pornographic sites had separate number ranges. Consumers had been educated, after which technology had been introduced to enabled services to be blocked. WASPs had a certain degree of control.

Mr Morwamoche said that there was an obligation on WASP’s not to make sexual content available in general media.

The Chairperson said that these comments would be noted for consideration when the Committee did the clause-by-clause analysis of the A/B.

Ms Mentz said that the networks were able to enforce WASPs to be members of their association. Their advertising had to be regulated. A WASP could be banned from further service delivery after breaches.

Ms Lovina Nunan, Senior Legal and Regulatory Advisor, MTN, said that the operators had been very involved at a summit meeting held the previous month. The interests of children and adult content had been discussed. The networks were involved in consumer protection bills, and needed more information on content.

The Chairperson said that information would be obtained through sponsorship. A platform had been created. Often parents bought cellular phones for their children, but did not themselves know how to use the phones. The target market for pornography was children. The networks had a major responsibility, as the downloading of pornography was serious. Numbers for these services were advertised in newspapers. There was no control, and the state would have to intervene to protect children if profit was put before responsibility.

Afternoon session:
Freedom of Expression Institute submission
The Freedom of Expression Institute (FXI) was represented by Ms Jane Duncan (Director), Mr Na’eem Jeenah (Director Operations) and Adv Simon Delaney (Attorney: Head of FXI Law School). The FXI was opposed to child pornography but felt that the proposed legislation would classify and ban a far broader range of expression and would also have a potentially chilling effect on political speech. The organisation also feared that the Film and Publication Board (FPB) had lost its independence. They argued that the legislation was unconstitutional.

Discussion
The Chairperson was curious as to what the FXI’s work was about.

Mr Jeenah explained that the FXI’s main area of work, freedom of expression, took on various forms. The organisation was against censorship and many of the cases they dealt with involved community media groups whose freedom of expression was being threatened by local politicians or business people etc. The work they did with communities and social movements fell within two of its programmes, one of which was the anti-censorship programme and the legal unit attached to it. The former dealt specifically with the Regulation of Gatherings Act (RGA) and its proper implementation. He said that although the Constitution and the RGA provided adequately for protests, gatherings, freedom of expression, association, movement etc, these provisions were rarely properly implemented. The FXI did advocacy work around the RGA and defended the right to protest. They ensured that protesting organisations, movements and communities used the legislation correctly in exercising their right to protest.

The media and information, communication and technologies programme informed communities of issues related to the public broadcaster. The FXI organised forums aimed at taking the SABC to communities. One such forum had been held in Soweto a few months earlier. The Chairperson of the SABC board addressed the community and community members were given the opportunity to raise any questions or concerns they had. The FXI took people from the Media Development and Diversity Agency (MDDA) and Independent Communications Authority of South Africa (ICASA) to communities to discuss how community radio station might be able to set up for example. The FXI thus acted as a bridge.

Advocacy work around the accessibility of telecommunications, particularly cellphones, which though apparently accessible, were financially inaccessible to poorer communities, was one of the programmes major successes. The FXI took Vodacom representatives to have discussions with communities in the Free State that were so remote that they could not get cell phone signals. As a result of that interaction more masts were put in place in the area. The organisation was also lobbying to have prepaid cellphone rates reduced.

The Chairperson commented that they were doing good work but wondered to what extent the FXI interacted with matters related to pornography.

Mr Delaney responded that the FXI addressed pornography-related issues on two levels. At community level they tried to gage what communities’ concerns were especially as far as child pornography and violence against women and children were concerned. They also addressed the extent to which communities felt that their concerns around these matters were voiced to the relevant role players and thus amplified voices that would otherwise not have been heard.

The FXI had neither the means nor the intention to litigate on every single issue but chose to lobby Parliament and local governments. If necessary they went to court. He emphasised that in general the FXI would intervene as “a friend of the court and not as an opponent in an adversarial relationship” and would lend its expert knowledge in already-existing cases. Many of these cases were not against Government but against industry players or corporates that tried to bulldoze communities or smaller players in the telecommunications industry.

The Chairperson requested the presenters to respond to an article and pictures that had appeared in the Daily Voice. Apologising for having to do such an exercise, he explained that he thought it would assist the Committee in getting a better understanding of the FXI’s position as far as issues of pornography were concerned. The article, with accompanying photographs, spoke of the alleged rape of young girls aged thirteen and fourteen. While agreeing that press freedom should not be tampered with he wondered what alternatives the FXI could suggest that would combat the media’s exploitation of vulnerable members of society. The images that were constantly shown in the media frustrated everybody.

Mr Delaney responded that the first question one should ask was whether the pictures in fact constituted child pornography. The Committee was assuming that the people depicted were in fact children.

The Chairperson pointed out that no such assumption had been made – the caption claimed that they were children.

The Committee reacted with incredulity to Adv Delaney’s response that because newspapers did not always tell the truth, one should not readily believe that the people depicted were in fact under-age as claimed by the caption and article.

Noting the Committee’s skepticism, Adv Delaney responded that assuming that the pictures were indeed showing children, and assuming that they were engaged in sexual conduct, the picture could be described as an example of child pornography. Implying that the publication of such pictures happened in exceptional circumstances only, he added that the exception did however not make the rule.

The Chairperson at that point interrupted Mr Delaney, saying that he had wanted the FXI to admit that what had been depicted was child pornography.

Mr Jeenah emphasised that the FXI felt that child pornography should be criminalised. Their submission had given suggestions for how that could be achieved without repealing the media exemption.

Mr Beukman started his interrogation of the submission with the comment that the Committee could not react to Ms Duncan’s views regarding ICASA and the Communications Portfolio Committee, as communications was not the Committee’s field of expertise.

He requested the FXI to elaborate on their fear that the proposed legislation was an attempt to re-introduce morality as the test for film and publications control (p4). He wondered whether the FXI had any evidence to support their claim that the FPB, Government or the Committee was trying to reintroduce morality.

Mr Jeenah said that the statement had been made on the basis of the proposed amendments to the current legislation. While the Act recognised the constitutional right to freedom of expression, press freedom etc, the Bill aimed to strip the media of these rights.

Mr Beukman wondered whether he should assume that should the exemption be retained, the FXI’s fears would be stilled.

Mr Jeenah did not think that such “a simple jump in the logic” could be made. Only retaining the exemption would not necessarily change anything; the “whole package” needed to be addressed.

Kgoshi Morwamoche said that Government had been mandated to regulate and had a constitutional obligation to address public concerns. He wondered what the FXI though government should do when the public complained of their rights being violated by unscrupulous media coverage.

Ms Maunye said that she had wanted to address Ms Duncan, but unfortunately the latter had had to leave after making her introductory remarks. The member did not think that the Committee was pleased with the remarks Ms Duncan had made. It appeared as though Ms Duncan had come to the hearings to insult the Cabinet and Ms Maunye did not think the Committee was the appropriate platform at which to do that. She said that everyone present was there to address a matter that was posing a challenge to the nation, and felt sorry that Ms Duncan felt that the FXI’s participation in the process had been a waste of time.

Mr Jeenah explained that his colleague had not been attacking Cabinet but was making a concrete example. The ICASA Amendment Bill that the Communications Portfolio Committee had dealt with sought to make ICASA subject to the Ministry of Communications. Parliament passed the Bill despite all the objections. The President, to his credit, refused to sign it and sent it back to Parliament because he thought it unconstitutional. The Department then redrafted it. Mr Jeenah pointed out that when in a democracy people criticised each other it should not be taken as an attack. Debate assisted in formulating legislation that would be good for everyone.

Ms Maunye pointed out that such debate should take place in an appropriate manner.

Mr Jeenah responded that the FXI felt that their engagement around the ICASA Amendment Bill had been done in the proper way. They made submissions and even wrote to the President asking him not to sign the proposed legislation. He understood that the Committee might not have been pleased with the comments about time having been wasted. He tried to explain that Ms Duncan had meant that it was not good for government departments to constantly send clearly unconstitutional bills to Parliament for members to deliberate on.

Ms Maunye was not surprised that Mr Jeenah was defending his colleague’s behaviour.

The Chairperson interjected and said that Ms Duncan’s presentation had come across as a warning to the Executive and implied that the repeal of the exemption was an example of the tendency to introduce legislation that was unconstitutional. He said that the manner in which she had expressed herself indicated that she had very little confidence in Parliament. People rushed to the Executive when legislation was still before Parliament because they had very little faith in the institution’s ability to apply its mind. In cases where there were disputes around the constitutionality of certain laws that had been passed, recourse could be found in the Constitutional Court. He said that the allegation that Parliament was deliberately undermining the Constitution was incorrect. He had been following Ms Duncan’s articles in the press where she made claims that the Committee had said that they would amend the Constitution if they had to. Her articles made little mention of the Committee’s attempts to combat child pornography.

He said that the FXI might see itself as a champion of freedom of expression but they ought not to forget that many of the members had fought for that freedom, and had been part of the writing of the Constitution, which they were now accused of undermining.

Mr Jeenah responded that the Committee was misreading both the FXI’s intention and enthusiasm. The FXI was not placing itself in confrontation with the Committee nor were they planning on being champions of the constitution in opposition to Parliament. The FXI had the greatest respect for Parliament, who were the elected representatives of the people. They were however saying that there were times when unconstitutional legislation slipped through Parliament. There were certain procedures according to which laws were made and according to which, when legislation was passed by the Parliament, it went to the President for his approval. Had the President signed the ICASA Amendment Bill into law, the FXI could have gone to the Constitutional Court. These processes had been put in place so that people could be part of the dialogue when laws were made. He said that the fact that the FXI was engaging in the process as vigorously as they were was an indication of the respect they had for both the process and for Parliament.

Ms Maunye asked the FXI to elaborate on their statement that the passing of the Bill would impact on investor confidence.

Adv Delaney responded that if there were “a draconian system” of pre-classification potential investors in the industry would be cautious because the climate for open and relatively free publication would be severely curtailed.

Ms Maunye noted that the submission said that the State did not have the right to decide what South Africans read, heard or saw (p2). The Committee had held road shows aimed at familiarising citizens with the Bill, and people had expressed the views. She asked whether, as the people’s elected representatives, the Committee should honour the responsibility to implement their decisions and wishes or whether it should take sides so that the industry could make a profit.

Mr Jeenah responded that child pornography should be criminalised. Those who believed in human rights and democracy accepted what the people of South Africa felt about issues but also realised that South Africa was a constitutional democracy. Then Constitutional Court had for example decide that the death penalty was unconstitutional and even if a referendum was held and 90% of the people felt that it should be brought back, it would still be unconstitutional.

He emphasised that the people employed at the FXI were not involved with the organisation for profit. They were paid employees at an NGO, did not earn great salaries and made no profit out of the newspapers and magazines publishing companies sold. They were in it because they were passionate about the Constitution and felt that they had a responsibility to defend it and to use their voice to speak in the public interest.

Adv Delaney added that the fact that the majority of South Africans supported the proposed legislation did not trump its unconstitutionality. Despite the fact that according to media reports the majority of South Africans did not support the Civil Union legislation, Parliament still passed it because the majority position was unconstitutional. It was a “trite argument that the ebbs and flows of public opinion should not effect the bulwark of the constitutional guarantees of not just the majority’s rights but also those of the minority.”

Ms Mathibela noted that the presenter had spoken of the violent demonstrations at Khutsong, saying that people were allowed to demonstrate in that manner. She wondered whether freedom of expression allowed people to destroy property and be unruly when they protested.

Mr Jeenah said that the FXI did not believe that the right to protest and demonstrate gave one the right to destroy property. The RGA clearly outlined how demonstration could take place and made no mention of the destruction of property. The FXI did not support anything that was illegal.

Adv Delaney added that although the law forbade the use of violence in the context of a demonstration, the RGA did in fact contemplate some violence, disruption of traffic and damage of property. That Act read that unless there was a serious disruption of traffic or extensive damage to property the protest had to draw ahead. This differed from whether incitement to violence should be prohibited. In many instances refrains such as “Kill a Boer, Kill a farmer” would be sung as war chants. That slogan was declared illegal and was defined as hate speech by the South African Human Rights Commission (SAHRC). The FXI had disagreed. He argued that to say that the current water regulation system and prepaid water meters should be destroyed was not the same as actually destroying them, but that that kind of speech would be prohibited by the Act and that therefore manifestly unjust community grievances would not be given an outlet. The FXI believed that expression was a facilitative right and one could not cut off the very means of expressing grievances from communities who otherwise did not have access to mainstream media.

The Chairperson wondered where the FXI thought the limitation of rights contained in Section 36 of the Constitution were applicable.

Mr Jeenah responded that the media should be exempted but the exemption should not allow for the publication of child pornography. This would take care of the rights of the media as well as of the concerns around child pornography. He pointed out that unless one differentiated between child pornography and children accessing pornography one would not know how to address the matter, and that attempts to deal with it might then become unconstitutional.

Kgoshi Morwamoche commented that the proposed legislation did not make any mention of the state presuming to parent the nation as the FXI had suggested.

Mr Jeenah responded that when it came to children accessing pornography, parents were the prime role players. He was a parent too and was as concerned about his children as members were about theirs. Parents had the responsibility to parent and protect their children. He added that being a religious person he would like to stand before God and say that he had done right by his children. The state had to regulate child pornography, but in terms of accessing pornography parents had a role to play and that role could not be abdicated to the state.

Kgoshi Morwamoche assumed that since the FXI felt that publications were innocent until proven guilty, they were suggesting that the publication of child pornography should only be addressed once the harmful pictures have been taken and published.

Mr Swart, referring to the FXI’s statement that the deletion of the word “exploitative” from the object of the Bill opened the door to pornographic material being banned even if the use of children was incidental to the actual pornographic content (p4), sought clarity on how the use of children, incidental or not, in any pornographic material could be anything but exploitative.

Mr Jeenah felt that some of the members were making it seem as though the FXI condoned child pornography. Asking the Chairperson not to interrupt him but to give him an opportunity to explain the FXI’s position, he pointed out that the organisation felt that child pornography was a serious problem internationally and certainly in South Africa. He reiterated that the FXI believed that child pornography should be criminalised.

The Chairperson wondered what parents could do in the face of some newspapers publishing pictures such as the ones he had shown the presenters earlier.

Adv Delaney said that the public could complain to the Broadcasting Complaints Commission of South Africa (BCCSA) and the Press Ombud when the media violated the law. He had not heard that those mechanisms were dysfunctional and filed to address issues properly. The penalties transgressors incurred were very severe. Expulsion from the PMSA meant that that member was no longer within the ambit of the exemption.

The FXI supported the efforts to criminalise child pornography. When bills that were patently unconstitutional were brought before Parliament however, the FXI had an obligation to speak out and to rally support for their position.

Mr Jeenah recalled that the management of the Daily Voice had appeared before the Committee and admitted that they had published child pornography. He reiterated that child pornography should be criminalised because if it had been criminalised the editors and publishers of that publication would have had to face the sanction of the court.

Adv Delaney added that the real villains were not the media but the people who produced child pornography. That newspaper article had been intended to expose the ring of child porn producers and child rapists. The editor, though liable, could apologise but he or she should not be punished. Her realised that the police’s resources human and otherwise were stretched to the limit, and argued that therefore the press should be allowed to expose illegal activities because then the democratic system would be working.

The Chairperson commented that it was shame that the editors did not expose the producers of the pictures and the criminals involved but rather the children who were the victims.

Adv Delaney emphasised that both the media and the producers were liable, but that the liability of the pornographers was far greater than that of the newspapers.

The Chairperson said that he had wanted to hear that both were liable. The Committee would take the submission into consideration.

Mr Jeenah reiterated that the FXI had clearly spoken out against child pornography and had argued for the limitation of rights to be used in such cases. The Limitation of Rights needed to be correctly interpreted.

Standing Together to Oppose Pornography presentation
Standing Together to Oppose Pornography (STOP) was represented by its Chairperson, Ms Doreen Meissner and Vice Chairperson Ms Michele Human. STOP supported the proposed legislation as an attempt to protect children. They felt however that in order to adequately protect children no distinction should be made between adult and child pornography. Their list of recommendations included that the South African Government should draw on the classification guidelines in the Australian legislation.

Discussion
The Chairperson thought it an opportune time to give the FPB a chance to explain how they thought the Daily Voice should be dealt with following the publication of the afore-mentioned photographs.

Adv Iyavar Chetty (FPB: Head: Legal Section) explained that he had prepared an opinion pointing out that the existing media exemption did not allow anyone to commit criminal offences. If the pictures in the Daily Voice amounted to child pornography the paper should be charged in terms of Section 27(1) of the Act for possession and distribution of child pornography. The opinion was sent to the Western Cape’s Commissioner of Police who, as far as he knew, had met with the Director of Public Prosecutions (DPP) to discuss the matter. The hold up was at the DPP level. Mr Chetty had sent several emails asking for a progress reports. He had also emailed the Scorpions for feedback. To date he had heard nothing, but the FPB’s position was that the prosecution should go ahead.

After confirming that the opinion was not confidential Mr Swart asked whether the Committee would be able to have a copy of it.

The Chairperson said that following the previous day’s interaction with the Daily Voice it was clear that they had published the pictures deliberately. The Committee would have to return to the matter especially in the light of the public prosecutor’s apparent failure to act.

Mr Beukman said that he had gone through the Australian legislation, and wanted clarity as far as which procedures STOP felt the South African government should use.

Ms Meissner responded that they had highlighted some of the more important points from the Australian legislation that needed to be considered around classification and proceeded to read them to the Committee.

Mr Swart felt that there was much focus on freedom of expression and on matters related to the rights of the media and little on the scourge of pornography and in particular child pornography. The STOP submission also made brief mention of certain omissions in the amendment i.e. incest rape and bestiality. The schedules of the Act were being rewritten. One change was that something that had previously been classified as XX would now be classified as X18. One of the Committee’s concerns was that everything that was to ensure that everything contained in the schedules would be transported into the new Act. He sought the assistance of NGOs, such as STOP, to ensure that the present level of classification was not reduced.

Ms Meissner responded that they had however been informed that they had been mistaken as far as the reduction was concerned. She thought it might be useful for Mr Chetty to respond in that matter.

Referring the presenters to Clause 16 of the Bill, Ms Bopape-Dlomo explained that after examination of a film or interactive computer game referred to it the classification committee should classify it as XX if it depicted explicit sexual conduct which violated or showed disrespect for the right to human dignity, conduct or an act which was degrading of human beings or conduct or an act which constituted incitement to or encouraged or promoted harmful behaviour.

The Chairperson asked Adv Chetty to respond to comments that due to capacity constraints, the FPB would not be able to implement the legislation. He was also asked to go into greater clarity as far as the Daily Voice case.

Adv Chetty explained that there were two types of offences - offences that were a breach of the decision of the board and ones that were not dependant upon the decisions of the board. As far as the FPB was concerned the pictures published in the Daily Voice amounted to child pornography and was a general offence in terms of the Film and Publications Act. He then proceeded the steps he had taken in preparing his opinion.

The Daily Voice published the story and the accompanying pictures on 10 March and republished it with virtually the same pictures a week later. When the FPB became aware of it, he drafted an opinion and discussed it with the CEO who, if he was not mistaken, had then conveyed the opinion to the Ministry. He had in addition sent a copy of the opinion for the attention of the Police Commissioner in Cape Town. Mr Chetty had advised him very strongly that the newspaper in question had to be prosecuted. No court would read into the provisions of Section 23 exemption from criminal provisions. His advised the commissioner to agree with the opinion of the FPB that the Daily Voice should have been prosecuted. There were problems at the DPP level that according to his information, had not given the go ahead to prosecute under Section 27 (1).

He had hoped that the CEO’s interaction with the Minister would have led to some action. He emphasised that he could not, with absolute certainty say where the problem lay because he had simply not received any response. In information from the Commissioner indicated that the DPP was hesitant to prosecute. He thought it might be best to get the current status from the DPP himself.

The Chairperson commented that if the police were hesitant to act when the law was being broken there clearly was a problem. He requested the FPB to find the latest information and to forward it to the Committee by that coming Monday. If the information was not satisfactory he Committee would have to call a meeting with the relevant role players.

Mr Beukman found it worrisome that the FPB received no feedback from the appropriate state institution.

Mr Swart was interested in issues related to the prosecution of those who published child pornography. He reminded the Committee that they should also look at how the provisions of the Sexual Offences Bill tied up with the provisions of the Bill before them now because the two had to be dovetailed. Members needed to have a full briefing on that so that they could be fully au fait with what it involved.

Ms Bopape-Dlomo informed the Committee that the Board had met with the Justice Portfolio Committee and had informed them of what their particular concerns were. They tried to work so that the definitions of the two pieces of legislation were in synergy. They had agreed that the FPB would exclude ‘grooming’ from their legislation, because it would be included in the Sexual offences legislation. Unfortunately she was unable to say how far that legislation had proceeded.

Mr Swart who sat on that Committee too said that the bill had been finalised but that it had not yet been signed into law.

The Chairperson reiterated that this as well as the previously mentioned issues needed to be dealt with as soon as possible.

Mr Swart suggested that the National Director of Public Prosecutions could perhaps also be asked to come and explain what was happening with the Daily Voice case.

The Chairperson reminded Members that the Committee could call anyone before it. They would however allow Adv Chetty to first try to get feedback. After that the Committee would think of the way forward.

Ms Meissner asked the Chairperson’s permission to distribute some well known fashion magazines so that Members could have an idea of freely available magazines that STOP had thus far failed to convince to have age restrictions or child secure wrappers.
 
The Chairperson assured STOP that Members would take everything they had submitted into account.

Mark Oppenheimer submission
Mr Mark Oppenheimer made his submission in his personal capacity and argued for a distinction between virtual and real child pornography and that the former should not be prohibited as it did not involve real children and thus could not be of harm to them. He was of the opinion that the proposed legislation would stifle artistic expression and would render a large number of well known literary and artistic works illegal.

Discussion
Mr Beukman wondered whether Mr Oppenheimer was presenting in his personal capacity or on behalf of the University of Cape Town.

Mr Oppenheimer explained that he held an honours degree in Philosophy and was in the process of completing his law degree.

Mr Beukman presumed that the submission was made in his personal capacity then. Mr Oppenheimer confirmed that that was the case.

Ms Bopape-Dlomo commented that it might be of interest to Mr Oppenheimer to take a look at the research the FPB had done on the impact exposure to pornography had on children.

Mr Oppenheimer replied that he had not had opportunity to consider the research and pointed out that his submission did not require him to do so. His interest lay in virtual child pornography and not children’s access to “explicit materials” which he too thought should be prohibited.

Having considered the content of the submission, Ms Bopape-Dlomo felt that he should consider “real” research that had been done so that he could carefully reconsider the connections and “disconnections” made in his submission. Going through the available research and then updating his submission would assist the committee in contextualising some of the relevant issues the submission raised. She pointed out that the FPB was not only dealing with virtual child pornography.

Mr Oppenheimer thought the notion that pornography caused harm was a “huge misnomer”. His submission was liberally footnoted and Members could investigate where he had sourced his ideas. The regulatory framework was about preventing harm - he was not looking at harm done to children but at the “harm to other people”.

Kgoshi Morwamoche doubted whether Mr Oppenheimer had actually looked at the proposed legislation. The Bill spoke of child pornography and made no distinction between whether it was virtual or real.

Mr Oppenheimer interrupted, telling the member to turn to the first page of his submission. Mr Beukman, who was chairing in the absence of Mr Chauke, requested him to allow members to finish asking their questions.

Mr Oppenheimer continued saying that while the bill made no mention of virtual or real child pornography the 1996 Act did. Section 1(a) of that Act said that child pornography included any image however created or any description of person real or simulated who was, or who was depicted or described as being under the age of 18. He argued for the amendment of that provision.

Kgoshi Morwamoche sought clarity to the statement that the state was not justified in instituting criminal action against those that produced, possessed and distributed child pornography.

Mr Oppenheimer again interjected and said that his submission spoke of virtual child pornography, which he maintained was different from real child pornography. He stressed that he wanted the member to “get the definition right”. While he believed that “real” child pornography, which used “real children” was “ bad and wrong and deserving of criminal sanctions”, he argued that “virtual” child pornography did not make use of real children and should therefore not be prohibited. He implored members to make the distinction and not to include what he termed “artistic materials” in the definition of child pornography.

Kgoshi Morwamoche thought it necessary to inform Mr Oppenheimer that his rights did not override those of children to be protected from child pornography.

Mr Oppenheimer responded that he was not looking at children’s access to pornography and said that one would “have to look really hard” for where the Constitution stated that “a child did not have the right to not be exploited through child pornography”. He reiterated that he was only concerned about virtual child pornography and its prohibition. The Committee should limit its interaction with him to that debate and not look at children’s exposure to pornography, which had been adequately addressed by other submissions.

Ms Maunye requested the presenter to explain the difference between virtual and real child pornography.

Mr Oppenheimer replied that he would be happy to explain the difference although it was in fact already contained in his presentation. Real child pornography used real children and he was opposed to this practice, which he thought documented child abuse and was “evil”. Virtual child pornography on the other hand did not involve real children. He felt that the depiction of an adult pretending to be a child and engaging in sexual activity was not child pornography but a simulation and thus virtual. There were numerous such simulated scenarios that “depicted a child in such activity”. Listing the play Romeo and Juliet and the film Traffic, he argued that there were many examples of virtual child pornography in art and literature, and said that they were part of the current culture.

Referring to the presenter’s claim that rapists would not normally have been exposed to child pornography, Ms Mathibela wondered whether he did not feel that images of child pornography might encourage paedophiles and child rapists.

Mr Oppenheimer argued that the majority of rapists in South Africa did not require pornography to rape. He felt that Government needed to stop the baby rapes that occurred in South Africa. Rape had nothing to do with pornography and everything to do with the individuals who raped - their poor psychological make up, their social environment, the family set up and the fact that “there was something fundamentally wrong with them”. He felt that these individuals needed to be jailed but did not think that pornography acted as added stimulation requiring them to perform the acts they did. He felt that virtual child pornography should not be banned because of “these abhorrent, anti social individuals”.

Mr Swart pointed out that the Committee was grappling with the real issue of strengthening the provisions related to both virtual and real pornography. He asked whether the presenter really expected the Committee to take his submission seriously when the existing legislation allowed for virtual pornography. The Committee was under huge public pressure to address that issue. He wondered, considering that Parliament was charged with writing legislation for the common good, what common good could possibly come from virtual child pornography.

Mr Oppenheimer grabbing onto the member’s mention of public pressure, recalled that Parliament had also been under public pressure to reject the civil union legislation and to reinstate the death penalty. He felt that public pressure was not a good enough excuse for instituting unconstitutional legislation. The Constitution was the yardstick by which things were judged. He felt that should virtual child pornography be banned the public would suffer because plays such as Romeo and Juliet, artists such as Klimt, cartoons, and many other forms of artistic expression would be banned and that one did not want to “stifle expression in such a fundamentally disruptive manner.” He argued that the onus was on the Committee to say why there was something wrong with child pornography because in his opinion children were not harmed by it. Referring to statements made early he agreed that the desire to ban all forms of child pornography had to do with “moral sensibilities, disgust and the fact that some people found that stuff offensive.” He pointed out that some people were also offended by interracial handholding, homosexual kissing and people wearing garish clothing.

He felt that the material could be regulated by controlling where and when it was shown and distributed but did not accept criminal sanctions because there were lesser measures that could be used. He suggested that the Committee considered his submission very closely because it was very “rigorous and philosophical”.

Ms Bopope-Dlomo asked whether Mr Oppenheimer was aware that the provisions of the act made clear that all material would be judged within context and that aspects such as bona fides and artistic ability were taken into account. Considering the South African context and considering the “lack of sophistication”, she wondered whether he thought that people were able to distinguish between real and virtual pornography and whether the justice system would have the resources to address any matters that arose. She also wondered what Mr Oppenheimer’s thoughts on the desensitisation and desexualisation of children were.

Mr Oppenheimer responded that he would have been happy if the proposed legislation did in fact consider artistic ability. The Act specifically excluded artistic content. He admitted that including artistic content would not be without problems because it might protect real child pornographers that claimed that they were creating art. He said that that there were children who were being abused and the “fact that it is art” did not matter.

He said that while he might agree that there was a particular category where it may be impossible to distinguish reality from virtuality (using people over the age of 18, for example but portraying them as 16 or 17 year olds), in most cases it was very easy to tell whether real children were being used or not. If virtual child pornography reached a level of sophistication where one could not distinguish whether it was real or not, the Committee should bear in mind that pornographers would not risk going to jail by doing something illegal. He believed that it followed that virtual pornography thus had the positive effect of reducing real child pornography because people would be less inclined to use real children and risk having criminal charges brought against them. He felt that the prohibition of virtual child pornography would allow for underground networks of child pornographers to continue what they were doing. He emphatically declared that that was unacceptable that that kind of thing needed to be stopped. He felt that should virtual child pornography be allowed no real children would get harmed.

The Chairperson said that due to time constraints the interaction with Mr Oppenheimer would have to be cut short.

Mr Oppenheimer interrupted and eagerly asked whether there were any more questions. He felt that since previous speakers had been allowed up to 90 minutes of interaction the same should be granted him.

The Chairperson pointed out that though he realised that for some appearing before Parliament was an exciting experience, Mr Oppenheimer was out of order.

Kgoshi Morwamoche pointed out that the presentation suggested that what was being distributed over cell phones should in fact be allowed since it was virtual and not real.

Mr Oppenheimer was pleased that the member had raised that question since it gave him an opportunity to explain that virtual did not only apply to something that appeared on the computer. If real children were not being used it was not real pornography. He suggested that the member re-read his suggestion.

Ms Bopape Dlomo wondered what informed the submission’s claim that should virtual child pornography be allowed, real child pornography would decline rather than be encouraged. In her experience pornography had since its decriminalisation become even more explicit showing that people were pushing the limits.

Mr Oppenheimer agreed that it had become more explicit but he did not think that that was what the FPB should be concerned with. They should rather be concerned about real children being abused and that that was where resources should be spent. Having looked at case studies from Denmark, Germany and Japan, he had shown that as pornography increased, it seemed as though “less bad things happened”. He said that in Apartheid South Africa where pornography had been seriously controlled, rape and violence against women was commonplace.

Ms Bopape-Dlomo felt that the research the presenter might have done in this regard was not evident.

Mr Oppenheimer responded that the information came from an American Supreme Court judgment. He felt that the argument he made was logical. If real child pornography would result in criminal sanctions real child pornographers would be disincentivised and would rather produce virtual.

The Chairperson thanked the presenter for his spirited submission and suggested that he stayed in touch with the FPB so that they could interact further.

Adv Chetty said that he would interact with Mr Oppenheimer if the Chairperson insisted upon it. Amid the laughter of all present the Chairperson said that he was not insisting but that he merely thought that the energy Mr Oppenheimer displayed could be put to good use. He felt that the FPB should interact with all submissions.

Visionaries in Africa Volunteer Network submission
Ms Nadine Naidoo founding trustee of Visionaries in Africa Volunteer Network (VIA) made the submission, which firmly supported the amendment of the existing legislation. The organisation felt that the legislation should however impress upon financial institutions as well as internet service providers that they had an important role to play as far as combating child pornography and that they should be held criminally liable if they have knowledge or suspicion especially with regard to knowledge regarding websites known to contain child pornography.

Discussion
Mr Swart thanked Ms Naidoo for the submission and said that more people should be as passionate about what they did. He wondered whether the organisation had engaged the financial institutions and whether they had considered the provisions of the Financial Intelligence Centre Act (FICA). The Committee would engage with the good proposals the network made. He thought the proposal might be better situated for that legislation which would compel the institutions to provide the centres with information of money that might have been acquired through illegal action.

Ms Naidoo explained that at present the FICA did not focus on eradicating child pornography. At present there were no systems for compliance or transparency mechanisms that would reveal any illegal activities a person might be involved in.

Mr Swart felt that the proposal, which was very good but might be better suited for FICA and suggested that the Committee should look into it. It would be a function better suited for the already existing centres, rather than the FPB, which would have to develop the necessary capacity.

The Chairperson recalled that the matter had already been raised on a previous occasion and thought it useful if Ms Bopape-Dlomo could give an update of the progress that had so far been made.

Ms Bopape-Dlomo responded that the in the United Kingdom, they had already started working with the banks in addressing the matter.

The Chairperson commented that the submission made valid points and would deliberate to find a clear location for the proposal. He suggested that the FPB interact with the organisation.

Ms Naidoo thanked the Committee for the opportunity to participate at that level. They were very concerned a year earlier when the hearings were postponed indefinitely, but they were pleased that they had had the opportunity to make voices that would otherwise not have been heard, heard. The volunteer network would make the campaign a 365-day long affair so that South Africans that had written in would know that they had constant representation with the Committee.

Independent Communications Authority of South Africa submission
The Independent Communications Authority of South Africa (ICASA) was represented by its Chairperson, Mr Paris Mashile, and a councillor, Mr Koos Van Rooyen who had been a player in the FPB before and was a specialist in the area. ICASA opposed the amendments and argued that it was established in accordance with Section 192 of the Constitution, which required the establishment an independent authority to regulate broadcasting in the public interest. The regulation of broadcasting was thus firmly within ICASA jurisdiction. Hey also argued that the amendments were “constitutionally incompatible”.

Discussion
The Chairperson explained that it had been a deliberate decision to give ICASA the final the last slot on the programme, because that would have given them the opportunity to listen to the issues other stakeholders raised. This placed them in a better position to comment on some of the issues that had so far been put on the table.

Mr Swart felt that the jurisdictional issues ICASA raised as well as the claims of potential constitutional issues were valid. He suggested that the Committee should at some stage meet with the Communications Portfolio Committee.

Kgoshi Morwamoche shared Mr Swart’s concerns around the joint jurisdiction and wondered whether ICASA and the FPB had had opportunity to discuss their respective areas of operation.

Mr Van Rooyen responded that there was no joint jurisdiction between ICASA and the FPB.

The Chairperson thought it important to try to find some kind of synergy between ICASA and the FPB as far as the standardisation of classification was concerned.

Mr Swart wondered whether, having heard the complaints many presenters had made against e-TV, ICASA could inform the Committee of how many times that broadcaster had been fined for contravening provisions. He wondered how repeated transgressions impacted on a broadcaster’s chances of renewing their licences.

Mr Swart pointed out that many arguments for and against self-regulation had been raised and he wondered what ICASA’s views on the matter were. He wondered how it was possible that a film such as the much-complained about “Emmanuelle” which probably would have an X18 rating could be shown on television.

Mr Van Rooyen explained that “Emmanuelle” had not been classified as X18. After concurring with the E-TV bosses, he confirmed that the new version of the movie was not classified at all. He assured members that while it bordered on an X18 classification, it could not actually be given that rating. According to the code E-TV could broadcast X18 material but interestingly they never did. This illustrated e-TV’s wisdom and awareness of what their viewers wanted to see.

Mr Van Rooyen explained that every time a decision was made against a broadcasting it recorded on the “card” ICASA consulted during the re-licensing period. E-TV might be regarded as being “naughty” because of the material they broadcast after 11h45 at night, but although there had been findings against them they had never been fined for the B-rated materials they showed in that timeslot. They were moving within the confines set by the tribunal that found that at that time of the night there should be more freedom. The material one could hire from a video shop was far more explicit.

Kgoshi Morwamoche informed ICASA that E-TV had earlier that day admitted to advertising pornography and wondered how the broadcasting regulator could allow that.

Mr Van Rooyen said that while advertisements were referred to the Advertising Standards Authority (ASA), a broadcaster’s advertisement of what it would be broadcasting at a later stage fell within the ambit of both ICASA and the Broadcasting Complaints Commission (BCC). He felt that while one could have ideals to which to aspire one would never be satisfied as far as the regulation of advertising was concerned. It was important to consider that the advertising of sensitive material was not broadcast in a waterfall fashion but on a sliding scale. The code allowed this. He added that while many people might not like pornography one had to be mindful of the freedom of expression provisions as well as adults’ right to choose what they wanted to view. He assured members that there had never been any signs of child pornography, and he knew that very strict measures would be taken if nay thing of that nature were shown. There was constant discussion about what had to be done to protect children, not only from pornography but also from violence and strong language. The rules regarding these aspects were particularly strict. A BCC ruling said that the rules even applied to radio broadcasts. One did not want to see South Africa reverting to pre-1994 when all material was pre-checked. He concluded by saying that compared to other countries, South Africa could be reasonably satisfied with how it addressed matters of broadcasting.

Mr Mashile added that one would have expected viewers “to vote with their feet” i.e. not watch E-TV so that it would go out of business, but this was not the case. People kept watching what they aired and thus E-TV kept airing what their ratings suggested viewers wanted to see.

Mr Beukman commented that South Africa was still a country in transition and was still defining the parameters of Government and civil society. As far as he was concerned self-regulation would be the ideal solution, but it would be dependent on certain circumstances. As public representatives Parliament had a duty to reconsider certain aspects should the public raised concerns. If within the self-regulatory environment certain stakeholders “were not playing ball” lawmakers had a responsibility to discuss and analyse the situation. Noting Mr Van Rooyen’s comment that there had not been any broadcasting of child pornography in the last thirteen or so years, he asked whether ICASA was satisfied that the current code catered to all the different needs presenters had expressed as far as the protection of their children, as well as whether there was sufficient self-regulation by broadcast and print media.

Mr Mashile responded that the questions raised were ones that from time to time were raised by ICASA too. They often asked themselves whether they were indeed doing enough as far as balancing freedom of expression and broad societal concerns. From time to time ICASA called on stakeholders to ask whether they were aware of what the ramifications of their actions were. He pointed out that something that would normally have been underground could suddenly become “flavoursome”. Referring to literature and other forms of expression that had once been banned, but were now freely available he said that one had to strike a balance between the wisdom demystifying certain issues and the legitimate concerns about the development of the youth.

He said that some people called pornography “adult entertainment” and credited it with saving certain marriages. The fact remained that children were curious and would try to watch programmes that were being broadcast late at night simply to find out why they were not allowed to do so. The challenge lay in trying to protect children from these materials in ways that did not cast them in too much mystery. He reminded the Committee that one could not prohibit pornography in its entirety, as that would infringe upon the rights of adults who had a legitimate right to viewing it.

Mr Van Rooyen informed the Committee that ICASA planned to have their new code in pace by 1 April 2008 or at the very latest by July of that year and would obviously have to consult with all stakeholders in its development.

Mr Mashile reminded members that Socrates had once been seen as anti-religious and a corrupter of youth. He had reportedly proclaimed that he would swallow the poison but would not submit to threats. Galileo had suffered the same fate. These thinkers had dared to depart from the normal ways of thinking and had contributed massively to the progress of humankind. Mr Mashile warned that the Committee should take care that the situation did not create martyrs. He believed hat if the broadcasters were given the option of self-regulation they would realise what the penalties of deviation would be. One had to take care not to create a censorship environment where people did not feel that others who thought their morality better were judging them. Content had to be regulated so as to ensure the equal representation of South Africa’s diverse cultures, and to encourage that people aired their views freely. It would be better to work together and write legislation that would satisfy everyone than to pour resources into something that would achieve nothing.

The Chairperson pointed out that ICASA had a responsibility to consider the impact of the content it allowed. Everyone agreed that pornography had a negative impact on children and therefore had to be broadcast at a later time slot. In addition women were the ones who were exploited by the pornography industry. He said that in 1996 they had to come up with legislation suitable for the newly democratic society, the matter was then dealt with in somewhat jovial manner. Now South Africa was faced with a particular challenge i.e. the protection of its children. He wondered whether the presenters were of the opinion that constitutional freedoms should be protected even if children were affected negatively and asked whether ICASA had done any research in this regard. He also thought it necessary to point out that the Committee was not contesting ICASA’s powers but was interested in what contributions it could make to find solutions. He stressed that the Committee did not want to interfere with ICASA’s power of classification but thought it necessary to point out that classification needed to be strengthened and made more secure.

Mr Van Rooyen responded that no one would ever say that freedom of expression was an absolute right. Section 36 of the Constitution placed reasonable limitations on that right. The Constitutional Court had ruled however that freedom of expression provisions accommodated even offensive expression. This complicated matters. The ICASA code, which the BCCSA also applied, made clear that broadcasters may look at the guidelines. In practice however the BCCSA had held that broadcasters had to have very good reason for not adhering to the existing codes.

He added that DSTV had not really come under content control yet, but the process to facilitate that was underway. There had not been any complaints against DSTV. MNet broadcast more explicit material than DSTV who had not had any complaints laid against it.

ICASA was in addition trying to promote the building of good working relationships with other stakeholders so that issues could be addressed more easily. A system had been worked out whereby, on a sliding scale, more explicit material accompanied by warnings, would be broadcast from 9pm onwards. Discussions as to whether programmes broadcast after midnight should carry a permanent warning (which viewers found disturbed their viewing pleasure) were underway.

Mr Van Rooyen assured members that in developing the new codes ICASA would draw on the best codes in the world and emphasised that South Africa already had the best publications act in the world. He felt that as long as there was active engagement especially around the new code, as long as they drew on the best experience and as long as the public were kept well-informed the new codes would be successful. MNet and DSTV had parental control measures but it would be impossible for free-to-air television to use these and therefore the rules governing it would have to be quite strict. No material unsuitable for under-18s would be broadcast before nine at night. More explicit programmes could be aired after midnight but these would not be accompanied by depictions of violence, explicit sexual acts etc. South Africa was thus far removed from what was allowed in Europe.

The Chairperson wondered what had informed the decision to allow material unsuitable for children to be broadcast after nine in the evening. He reminded the ICASA representatives that many children were still awake at that time of the night and that many parents, due to work obligations for example, would not necessarily be able to supervise the television viewing.

Mr Van Rooyen assured him that the this aspect of the code could be reviewed and emphasised that the new code would be developed with full consultation with the public and other relevant stakeholders and would certainly also take into account changing social circumstances.

Mr Mashile recalled an article he had read a few weeks earlier. It found that in the United Kingdom there were far more teenage pregnancies than in the Netherlands which was thought of as a much more liberal country as far as issues such as pornography was concerned. He wondered whether there was not perhaps a need to educate and mould children so that they were better able to deal with the realities of their society. He added that parental upbringing and sex education were important, as leaving children to make these discoveries on their own would be more detrimental. He felt that no time constraints could be placed children who were eager to satisfy their curiosity around these matters. He feared that much resources were poured into an endeavour that would yield minimal results. Education would be the best starting point: educating children around sexuality and the dangers of pornography. Children should be taught self-restraining measures.

Ms Bopape-Dlomo commented that the problems experienced in England were much more complicated for them to simply be related to the fact that their society was less liberal in its approach to these matters.

She also noted that the ICASA submission did not make its views as far as the potentially harmful effect of inappropriate material on children clear. Irrespective of the rating that “Emmanuelle” might be given its content remained inappropriate for children. She also wondered to what extent ICASA’s stance had been influenced by scientific research.

Ms Bopape-Dlomo agreed that freedom of expression and freedom of choice should be respected when it came to adults, but reminded the presenters that a child’s right to protection from harm was paramount. The FPB sat as an observer on the United Nations classification committee and recently attended a conference in Australia where it was said that classification boards across the world were becoming more conservative. Watching television after 23h00 in European Union countries was boring – there was no violence, no sex, and no strong language. Many people wanting to watch programmes with such content were resorting to pay channels. The approach was thus that anyone wanting to access these programmes should pay for it rather than imposing it on the rest of the public.

Mr Van Rooyen was pleased about the UN connection. He thought the FPB would do well to bear in mind that in Europe alone there were 600 000 viewers who watched other choice and X18 material. ICASA had held two conferences over the past two years where top experts such as Jeff Cole a top expert on violence and many others from other countries, came to address them on these matters. South Africa was using these resources as best they could. Two weeks ago the Complaints and Compliance Commission within ICASA hosted an internationally renowned expert in the area of audience reaction. ICASA would also like to get involved in the UN endeavour, which up until then they had not really considered. He reminded the FPB that there was a staggering amount of available material and that he, as a specialist in the field, especially tried to keep abreast of developments.

Mr Mashile agreed that the comparison between the UK and the Netherlands had perhaps not been a good one considering the difficulty in “comparing incomparables”. Benchmarking was difficult because social conditions differed from country to country. It was useful to look at other countries experiences, but one had to contextualise the data.

The Chairperson aid that South Africa was a country whose people had been and continued to be exposed to high levels of violence. The President had even made addressing violence one of his priorities. He wondered whether ICASA did not feel that broadcasters contributed to the escalating levels of violence within the society.

Mr Mashile answered that he could not deny that people did not on some level simulate what they saw portrayed on television because they did not realise that the scenarios portrayed on the screen were artificial. He agreed that there might thus be a relationship between the violence seen on television and the violence exhibited in society but the portrayal of violence on television could not be seen a large contributor.

The Chairperson wondered what the ICASA representatives thought of reports that children as young as 11 years of age were now already engaging in sexual activity.

Mr van Rooyen responded that there was much useful information that indicated that only a crude mixture of sex and violence could pose a real threat as far as desensitising children to it. About 15 years ago two to three hundred young English hooligans were used in a study and it was found that only 4% of them went to the movies regularly.

Mr Mashile felt that one should also bear in mind that the socio-economic conditions in South Africa were such that families often stayed in very cramped dwellings were children might at times be exposed to adults engaging in sexual activity which might later copy.

The Chairperson doubted this statement because he had grown up in a large family that stayed in a single room that was divided by a curtain and he had never been exposed to such inappropriate activity. He felt that other factors had to contribute to the fact that young children were now engaging in sexual activity.

Mr van Rooyen requested the Chairperson’s permission for the discussion to be continued at a later stage because Mr Mashile and himself had to catch a flight back to Johannesburg.

The Chairperson said that the Committee would invite ICASA again so that the matter could be discussed in greater detail. There was a need form more detailed engagement around the impact the media had on social conditions. He added that organisations’ code of conduct had to be informed by relevant and empirical research. In conclusion he thanked the Members as well as other officials and guests for their dedication and hard work during the hearings.

The meeting was adjourned.

 

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