Film and Publications Amendment Bill: further input by Stakeholders

Home Affairs

15 May 2007
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Meeting Summary

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Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
16 May 2007
FILM AND PUBLICATIONS AMENDMENT BILL: FURTHER INPUT BY STAKEHOLDERS

Chairperson:
Mr P Chauke (ANC)

Relevant documents:
Opinion Paper: The Constitutionality of the Films and Publications Amendment Bill, 2006
Films and Publications Amendment Bill [B27-2006]
Films and Publications Act

Audio Recording of the Meeting

SUMMARY
The Committee had heard submissions from a number of bodies the previous week. Having heard those submissions the Committee had resolved to extend a further invitation to discuss the best way forward and try to reach greater consensus on some of the issues. Particular issues that were raised included the distinctions between the editors and publishers of newspapers, screening times of certain programmes by the broadcasters, advertising of such programmes, responsibility for content, the classifications applied by the Film and Publications Board, responsibility for content in advertisements for adult entertainment, the role played by the mobile phone operators in providing short-code numbers for adult content and in providing a platform for engaging adult services, and the role played by the Independent Communications Authority and the Press Ombud at present and in the future.

All agreed that the protection of children from child pornography and from having access to pornographic material were vital. Submissions were made by the Independent Communications Authority of South Africa, M Net, National Broadcasters Association, the legal representatives of the Film and Publication Board and the print media, the Editors of Mail and Guardian, Independent Newspapers and Sowetan and Sunday World, from South African National Editors Forum, and from Cell C on behalf of mobile operators.

Specific questions and discussions centred on the possible interpretation of the exemptions when read with the criminal sanctions for possession of pornographic material, whether there was a middle road if the press would agreed that they were subject to the criminal sanctions for breach as set out in Section 27, how stakeholders would be involved in development of the Communications Authority Codes, watershed times, control of suppliers' content, scheduling, monitoring, sanctions, the scope of press exemptions, the overhaul of the press complaints system, the new phenomenon of tabloids, and the monitoring of and responsibility for advertisements. Specific comments on the clauses of the Bill would be sought later. It was noted that the taking away of legal representation and the right of appeal to a court were regarded as problematic. The Chairperson made it quite clear that the Committee was fully supportive of the fact that freedom of the press must remain and the current structures should not be done away with.

MINUTES
The Chairperson indicated that the Committee would be dealing with issues arising from the Films and Publications Amendment Bill (the Bill) hearings. The Committee had already deliberated on the issues raised by a number of stakeholders, including the constitutionality aspect and self-regulation. Public participation would inform the Committee on the way forward. The Committee had resolved to extend a further invitation to the stakeholders to discuss the best way to address the issues. The rights and protection of children were of paramount importance. The Committee was particularly aware of the rights of the media and would not interfere with rights entrenched in the Constitution. The decision had been taken to continue with public interaction because all issues lay within the daily work of the media. The Independent Communications Authority of South Africa (ICASA) was currently busy with its new Code of Conduct and it would be beneficial to receive information on that, particularly issues involving children. The role of ICASA was fully appreciated. Synergy with the Film and Publication Board (FPB) was also important, and their guidelines could assist. Issues of capacity at the FPB must also be discussed. He would like stakeholders to make some firm proposals. The principle of freedom of the press must be jealously guarded and protected, but this was coupled with responsibilities. There had been an indication that cellphones were uncontrollable, but the Committee would like to hear what could be done.

Discussion
Mr F Beukman (ANC) added, for the public record, that it was important for all role players to understand the difference between the executive and legislature. He referred to the rules of the National Assembly on public comment, and noted further that Rule 249 required the Committee to enquire into the subject of any Bill and report to the National Assembly, even if a Bill was perceived as undesirable or unconstitutional. The Committee was currently busy with this process.

Mr S Swart (ACDP) noted that all parties were committed to dealing with the scourge of child pornography and adult content and pornography in general. The issue of self-regulation would be important. Broadcasters and print media conceded that there were ways to improve the situation. An issue discussed last week related to Section 27 criminal sanctions. He felt this might provide a way forward. Therefore he asked the print media to consider whether they would regard themselves as subject to the criminal sanctions for breach as set out in Section 27. If not, then the correlation between Section 27 and other sections giving an exemption would not be established. He pointed out that the Sexual Offences Bill, currently tabled in Parliament, contained provisions criminalising the gaining of any benefit from any form of child pornography.

Kgoshi W Morwamoche (ANC) stated that a further issue related to lack of monitoring by ICASA. There had been a remark that compliance officers had more powers than ICASA.

ICASA Submission
Mr Paris Mashile, Chairperson: ICASA, indicated that children needed to be protected in all ways. Adults must ensure that a proper legacy was passed to the future generations. ICASA had a mandate to regulate broadcasting services. It dealt with the electronic but not the print media, although there was an argument that the converged environment had narrowed the boundaries. Whilst ICASA welcomed technology contributing to advances in society it must also be cautious.

ICASA believed it was vital to critique the issues. It wished to share its knowledge and experience to reach commonality in the way forward. ICASA had a Code and the Broadcasting Complaints Commission of South Africa (BCCSA) Code was similar.

Mr Kobus van Rooyen, ICASA Councillor, indicated that the forerunner to ICASA had been the Independent Broadcasting Authority (IBA). in 1993 a Code was attached to the IBA Act, and this dealt in detail with the rights of women and children. In addition Section 53(2) of the Electronic Communications Act (ECA) provided that there should not be any pre-censorship of what was broadcast. The Film and Publication Board (FPB) undertook pre-classification, which was done by agreement with film and video distributors. That had never been in dispute. At around the same time as this agreement was reached, there had been a guarantee of exemptions in the Act.

In relation to child pornography, Mr van Rooyen indicated that there was a responsibility and a criminal sanction. Section 27 of the Films and Publications Act (FPAct) contained prohibitions on possession, production and distribution of pornography without permission., The Constitutional Court had held that even legitimate purpose for material being in the hands of a producer (including a newspaper) would not exclude the necessity to get permission. This applied in a number of other countries also. All broadcasters were bound by these provisions. Furthermore the Broadcasting Code contained some good definitions and provided that any film that had been banned could not be broadcast at all. When deciding on broadcasts of non-banned films, the classifications given by the FPB could be taken into consideration The BCC guideline stated that if any move away from the FPB classification could only be done on exceptional reasons. More classifications had recently been added. The Code permitted more explicit material to be shown, but there were time slots (referred to as watershed time) within which this could be done. No promotion of such films could be screened before 23:15 and the films could only be shown after 23:45. Those rewriting the Code would be consulting widely on this. Few complaints were likely to emanate from M Net matters. DSTV had been abiding by the code using classifications although they were not obliged to. They had not moved into porn channels. ICASA would look closely to whether it would permit broadcasters to screen the material that could be bought from a licensed video shop that was properly regulated by FPB and licensed by the local authority.

Mr van Rooyen reiterated that there would be wide consultation, and ICASA was taking other Codes into consideration. It was important to have regard to what South Africans wanted and could tolerate. The new morality was that of the Constitution and public interest and children's rights were measured against that. The Constitutional Court had stressed that all rights must be dealt with in a balanced way from the start. Protection given to children required careful consideration. The Code was a living document with a future that would need to be adapted to circumstances.

Mr van Rooyen noted that licensed South African broadcasters who broadcast on to cellphones would fall under ICASA. In relation to foreign broadcasters the Department of Foreign Affairs should start to discuss matters with their countries.

Discussion
The Chairperson asked how ICASA would deal with public opinion and how it would involve the stakeholders in the development of the Code.

Mr van Rooyen replied that when the FPB Act was written the drafters had set out some preliminary thoughts and then sought public comment. More than 1 500 comments were submitted and public hearings were held. Only one clause of the FPB Act had ever been challenged on validity. The drafters had taken the chance to licence "soft porn", and this strategy had been successful as it had effectively shut down the illegal market in this material. Degrading material, extremely violent material, bestiality and child pornography were still outlawed, and there was an underground or bootlegging market for this. It would require a concerted effort to deal with this problem. However, he noted that on a recent screening of a film, BCCSA had received 1 200 complaints in one day, which was a good indicator that the public were well aware of their rights.

Mr Beukman thought that self-regulation was the best option. He noted that different times had been mentioned during the submissions, and he asked firstly for clarity for himself, and secondly whether all role players were clear on the issue.

Mr van Rooyen responded that watershed times, which had been introduced by broadcasters themselves in 1993, were fixed on sliding scales. The watershed for free-to-air was from 21:00. The 23:15 time referred to matters with explicit sexual content.

Mr Mashile stated that the advertising of the explicit adult films after 23:15 was intended to ensure that children would not see the advertisements.

Kgoshi Morwamoche asked for clarity on the Code of Conduct, in particular how it would address monitoring by ICASA and the Broadcasting Commission. One of the submissions made last week was that broadcasters could not change their suppliers' content.

Mr van Rooyen noted that ICASA was currently going through a replanning, but noted that monitoring had been done since 1994. Monitoring did not only involve a look at the financial and planning performance. Volunteers would also watch television in order to monitor the content and there might well be complaints to the BCCSA. ICASA was taking an active role and had a Complaints and Compliance Committee. .

Mr Swart asked if Section 27 did apply to the print media. He asked how that would tie in to the total exemption under Section 22(3) of the Act in section 22(3).

Mr van Rooyen stated that the exemption applied to publication. Any person in possession of certain material had to get permission, whether or not they were licensed broadcasters. This would apply even if the person were legitimately in possession of the material, for instance, for genuine research.

Mr Swart said that the main concern was in balancing the freedom to show matters with the complaints that were received. He noted that on Friday night M Net, who were subject to the Code, had broadcast a film with various simulated sex scenes and lesbian material, and that this was screened around 20:30.

The Chairperson asked M Net to indicate its input into content that was broadcast. and what relationship existed with its suppliers.

A representative from M Net noted the concerns and pointed out that there was a distinction between M Net (an analogue terrestrial operator) and MultiChoice (that operated via satellite). M Net was licensed. The subscription model was based on the payment of a fee in return for a broadcasting service, and those who did not pay did not receive the service. M Net was committed to responsible broadcasting. All films shown had been classified by the FPB. M Net adhered to the classification and would schedule broadcasting of those films sensitively and in line with the classification. In regard to other content, which was not submitted to FPB, M Net had a department to deal with scheduling, and this had adopted the FPB guidelines on classification.

She stated that broadcasters had to report to ICASA on an annual basis and demonstrate their compliance, so that the decision whether to renew their licences was based on the extent of their compliance in the past year. Therefore compliance was monitored by ICASA, who took these responsibilities seriously.

The Chairperson asked for clarity how the scheduling would work. He asked if the strong possibility of children being unsupervised at home in the early evenings was taken into consideration.

The M Net representative responded that a range of films would come from various distributors, and other content from other sources. Films were all classified, and the type of classification would determine when M Net screened the films. She confirmed that the internal classifications of FPB were also used to screen internal matters, and M Net would rarely deviate from these. Once content was classified the schedules were drawn. For instance, a film suitable for all could be shown during the day, whereas a PG13 would be shown later in the evening, and an 18-age restricted film still later, so that it was less likely that those under 18 would be watching at that time. In addition she reminded the Committee that subscription services were unique in having technology that allowed subscribers to block out content or channels that they found offensive. M Net attempted to empower subscribers to take their own decisions in their own homes.

Mr van Rooyen agreed that ICASA received few complaints in relation to subscription broadcasting. People paid a fee and chose what they wanted to watch. This was different from public broadcasters. He confirmed that DSTV, although not obliged to do so, was abiding by the rules. Each television broadcaster had an advisory committee from outside, except SABC, which had an internal committee. Mr van Rooyen said that perhaps the watershed time in the example raised by Mr Swart was a little too early. This was a matter that ICASA would discuss with M Net.

Mr Johan Koster, National Association of Broadcasters (NAB), confirmed that it was open at all times to the consumer to make decisions on the content that could be watched. Child pornography and X-ratings were a separate issue. When the Code was initially established it informed the public of classifying on content so that they could take more informed decisions what to watch. The broadcasters themselves had introduced the watershed times in reaction to complaints, and this meant no 18-age restricted matter or sex-content matter would be shown before certain times. Adult content films would carry an 18 age-restriction and would the watershed times of 23:15 for advertising and 23:45 for broadcast would apply. He stressed that these watersheds were self-imposed and were aimed at trying to keep unsuitable matter away from children. Consumers must also bear the responsibility to manage their own and their children's' viewing. All needs must be balanced out. Satellite was a little different, and most South Africans were not using subscription services.

Mr van Rooyen noted that fines could be imposed by ICASA and if a broadcaster were not to abide by the rulings of the self regulatory body this body could refer the broadcaster to ICASA, in which case it would come directly under the control of the statutory body.

Mr M Sibande (ANC) commented that public broadcasters were trying to satisfy all, whereas their main concern should be to try to avoid child pornography. He wondered if anything new should be introduced while the Codes still stood. He was concerned about proper monitoring. He pointed out that some advertisements were in fact being shown before the correct times. This was undermining the rules and must be addressed.

The Chairperson noted this point. He added that children were able to dial in to download. This issue also needed to be raised later.

Ms S Kalyan (DA) commented that the Committee was specifically interested in how the Codes would facilitate the Bill in regard to child pornography. She asked about sanctions and asked if these were being applied seriously.

Mr M Swart (DA) expressed his agreement that the Committee wished to focus on specific points. ICASA seemed to be being very defensive. There was a problem with child pornography and the Committee wanted specifically to focus on how the existing gaps could be closed without infringing on the constitutional rights to press freedom.

Mr van Rooyen said that there was indeed a gap. ICASA was applying the law even more strictly at present than even the Constitutional Court. In relation to the fines, he indicated that the Court had sentenced a film producer, for possession of 2 000 child pornography photographs, to a fine of R25 000, half of which was suspended, which was not a very large fine. ICASA, on the other hand, had imposed larger fines in the past.

Mr Mashile added that fining was not the only sanction. ICASA could also refuse to renew licences.

Mr van Rooyen concurred that there could be improvements to the legislation. The new Code would be considering the problem of children watching television after 21:00 and thereby being exposed to unsuitable material.

Mr Paris Mashile added that ICASA felt it necessary to critique issues. He conceded that there could be some areas where ICASA was not doing enough. Any further steps to be taken must be done within reason. Distinctions were made, and there would be a debate around the interpretations to be placed on different categories. Ideally ICASA would like to reach the situation where the public was able to decide for itself what morality should apply, but this would only come with more education. Context must be borne in mind. ICASA was not attempting to be defensive but only to explain matters fully.

Mr van Rooyen stated that very few complaints had been made about child pornography; one by members of parliament and one emanating from a short news item which had not intended to sensationalise matters. There was not a problem in this regard with licensed broadcasters. ICASA remained concerned also with explicit sex broadcasting and with violence.

Print Media submissions
The Chairperson asked the print media to address specifically the question of tabloid newspapers. Parliament did not want to have a continual cycle of complaints and apologies. He said that during the hearings last week the print media had shared a commitment to avoid child pornography. As indicated, it had already put much self-regulation in place and it was noted that this was still work in progress.

Mr Ashoek Adhikari, Media 24 legal representative, responded to the issues raised earlier on Section 27. He disagreed on some issues of interpretation. He noted that the exemption was only for newspapers that were members of the SA Press Association (SAPA). Magazines had never been exempted nor had asked to be exempted. The same applied to books. He emphasised that the exemptions applied only to newspapers with a particular professional membership. The Act was clear that the exemptions applied to a published copy of a newspaper and a poster of a newspaper issued. Therefore, the emphasis in the exemption was around publication. Nobody would hold the position that there could be an exemption to produce child pornography, as such production was covered under the Sexual Offences Act. He also wished to make clear the distinction between child pornography, which would involve the participation of children in pornographic material, and exposure to pornographic material. The Sexual Offences Bill dealt with exposure of children to this material. The print media believed it was desirable that legislation be harmonised to create certainty as to who should be covered by the norms and standards. An exemption here would exempt the print media from Section 27, in so far as the act of publication was concerned. Where this began and ended was a matter for the courts to decide as it could not be legislated for.

Mr Adhikari said it was necessary to distinguish the case referred to earlier by Mr van Rooyen from the press situation. The accused was a film producer and never had an exemption. That was why the issue of publication was important. The Courts would have to decide if possession for the purpose of publishing was the same as possession for the purpose of making a film. If the Courts were to make a pronouncement on possession, then this must be abided by unless the legislature decided that it wished to amend the law.

Mr Adhkari said that only the defined group of newspapers would be exempted. If, for instance, a person decided to start up a newspaper he would not have an exemption before applying for and having his application for membership accepted by the industry body. Only once he became a member would he receive exemption. The Constitution set the boundaries and the concept of freedom for the press envisaged freedom from outside regulation. This did not suggest anarchy but rather freedom for the media to regulate itself. The print media had taken up the challenge. There were already changes to the Press code to reach a solid base. The environment was dynamic and robust and there needed to be a mechanism for self-regulation so that the public was not exposed to inappropriate material. As circumstances changed the media could adapt with the needs of society. Newspapers had been able to change and evolve and had since inception of the industry remained an important and empirical pillar of democracy. He stressed that if the industry received an exemption it would not compromise its principles for a few extra sales. There was an open process of consultation, as the industry recognised that it could not decide, by itself, what was appropriate. The print media was an industry and must produce something that the public wanted, whilst also ensuring that it was sustainable. Novelty without maturity was not. He believed that over time the tabloids would mature and the industry would ensure that it did not sell itself out. He urged that the exemption to the print media should be retained. Mr Trevor Ncube, CEO: Mail and Guardian, added that a question had been raised about gender sensitivity. These were issues that were still being addressed. There was already a move to form something along the lines of a Press Complaints Commission. This would include members of the public and would be chaired by a retired judge. No final definitions had been reached. The final position would reflect integrity and true commitment and meet the highest standards of best practice. As new technologies developed the industry must be responsive and develop as well.

Discussion
Mr Beukman noted the mention of a significant overhaul of the press complaints system and asked for information on what practical steps would be taken.

Mr S Swart noted Mr Adhikari's response to Section 27. However, he wondered if it would not be in the interests of the media for it to accept that it was subject to the criminal sanction of Section 27(1) and therefore it was not necessary to delete the exemption. He reminded Members that the Amendment Bill sought to remove the exemption totally, which it had been suggested was unconstitutional. The Sexual Offences Bill was clear that any person who gained any advantage (and this was couched in the broadest possible terms) from child pornography would be guilty of an offence. So, additional criminal sanction existed. He agreed that there were grey areas. He further suggested that a possible solution would be to include a provision that save for the provisions of section 27, the print media had a total exemption. If so, the criminal sanction for child pornography, which tied up with the Sexual Offences Bill, would still be applied.

Mr Adhikari conceded that the issue was uncertain. He had spoken of the need for harmonisation of legislation to try to avoid the situation where different norms arose from different pieces of legislation. He noted the views, and said that if the provisions were not explicit then the Court must decide on the issue. He noted, in so far as the suggestion for Clause 27 was concerned, that the print media already applied a strong Chinese Wall principle. There was a distinction between publishers and editors, although both worked together on the press code. It would be premature to give any further indications today.

Ms I Mars (IFP) asked for an indication of how long the process of strengthening would take.

Mr Trevor Ncube stated that publishers could not tell the editors what to do. These limitations were accepted and applied, as they were part of the concept of press freedom. A key stakeholder in the process would be the editorial interests, represented by South African National Editors' Forum (SANEF), but he believed it was in the interests of all to attach some urgency to the process. By the end of the year there should be a draft code. It was important that there was total buy-in. Certain titles were already in the process of setting up their own internal codes. He reminded the Committee that last year the press was not happy with the office of the Ombud, and felt that it needed to reactivate it and raise its profile, so that the public knew where to go to lodge complaints. There was no point in having a press complaints body if there was not wide knowledge of how to reach it.

Mr Thabo Leshilo, Editor-in-Chief: Sowetan and Sunday World, also recognised the importance of strengthening the complaints and regulatory mechanism. His publication accepted that it was fully bound by the laws and rules, which, apart from one or two exceptions, were working well. In October last year SANEF and the owners of the media had a conference during which the issue of the Ombud had been raised. He agreed that the improvements should not take too long.

Mr Nazeem Howa, Independent Newspapers, quoted some paragraphs relating to editorial practice of the Daily Voice, which had been produced in response to the child pornography issues last year. He indicated that the practice notes were intended to provide a broad ethical framework, but were an editorial guide only. There was no suggestion that his newspaper was exempt from any laws. The Daily Voice was opposed to showing children in sexually explicit pictures, including nudity. There was a long section of the guidelines devoted to policy on children.

Mr Leshilo said that there seemed to be some suggestion that there should be a separate regime for tabloids He did not agree. Freedoms could not be subdivided. Individuals did not necessarily agreed with material that was appearing, but the job of SANEF was to protect the right to express views. Tabloids were being blamed for all ills and this was not correct. The solution would be to promote media diversity, so that there was better choice available to the public. Trying to apportion blame was not a solution.

The Chairperson said that this was an interesting point. The Committee was concerned about the new phenomenon of tabloids. He asked if SANEF had looked at the content of the Daily Voice and exposure of children to that material. He asked how the editor would explain the particular article that had appeared, particularly since the publication was widely accessible. He also noted that there appeared to be mechanism to monitor advertisements. He asked that this aspect should not simply be set aside under the comment of freedom of choice, but that serious consideration be given to the exemptions.

Mr Leshido said that the matter of the Daily Voice had been dealt with. The exemptions were working and the editors were respecting the law, and did not believe in promoting access by children to pornographic material nor child pornography. He agreed that there would be increasing numbers of new tabloids established. Editors had a responsibility, and each editor, no matter what the publication, would take into cognisance the prevailing moral standards, and perhaps what he would like his mother or daughter to see. He also needed to weigh this up against complaints on the "objectification" of women. It was not for editors to be moral police. There were alternatives to banning and the decision was where to stop, and whether there was a distinction between showing the breasts of a 20-year old model on page 3 or a dancer in a provocative pose under the guise of art. One editor might make a mistake, and be rapped over the knuckles, and this showed progress and an effective system. He emphasised that the print media was not the Wild West.

Mr Matlata Tshedu, SANEF, summarised that SANEF had already emphasised that it was bound by the Constitution and laws of the country. There was no proven reason to make interventions into how news would be transmitted. The industry had, since the very inception of broadcasting and newspapers, been able to rise to any challenges and to continue to have reliable sources that met the needs without sacrificing moralities. The kind of interventions that ICASA had indicated, and those that the Press Ombud's office was working on, were demonstrative of the fact that the industry understood its own challenges and was finding the necessary solutions so it did not become a over-legislated area, but rather one that was self-regulatory. SANEF would not like to see every infraction sparking off another piece of legislation. There was no need to do more.

Mr Morwamoche noted that there were challenges posed by tabloid newspapers abusing the exemptions. He asked for suggestions on how to deal with this.

Mobile operators submission on advertising adult services
The Chairperson said that every newspaper contained advertisement offering adult entertainment and indicated that FPB had picked up on some of the difficulties. He also noted that these advertisements gave cellphone numbers to contact those offering the services, and that it was also possible for children to dial in to cellphone numbers and thus gain access to adult material. He asked for a discussion on this issue.

Ms Leona Mentz, Manager: Regulatory Compliance, CellC noted that the newspapers advertised the services but cellphone companies generally provided the number for the adult entertainment content, so that there was a dual role in conveying this to the public. She indicated that the number range used was a short-code number, which fell outside the national number plan. This short code was a world-wide industry to provide access for content services. The mobile operators had signed a Memorandum of Understanding to coordinate the allocation of short codes (such as 35050) to the Wireless Application Service Providers (WASPs). In order to have a code allocated the WASP must have agreements with at least two service providers.

WASPS were further obliged to be members of the WASP Association, which had a code of conduct that regulated advertising. The direct agreement with the mobile operators was then a further protection.

The agreement between CellC and the WASPs was that the WASP must comply with the FPA and all other relevant legislation. In so far as the print media was concerned the FPA covered content, but there was no regulation on magazines and newspapers in the same way as television advertisements were regulated. That was why this was covered in the Codes of Conduct.

Recognising that there was a problem nationally on adult content, the mobile operators had agreed to introduce a separate number range and any WASP had to migrate from any short code number to a separate range of numbers, and the 5-range of numbers had been set aside to deal with anything of an adult nature.

The mobile operators could not deal with advertising and this was something that the WASP Association would have to clarify with its members. The mobile operators only conveyed items, but did not provide the content. WASPs had separate agreements also with providers of ring tones and record companies on content. Mobile operators gave access only to the networks but could not access any content because of the privacy legislation, although it could try to at least set up rules, which was the reason behind the requirement that WASPs be members of their industry association.

The Chairperson requested confirmation that any amendments in regard to content would not therefore have any direct effect on the mobile operators, as they were not the advertisers.

Ms Mentz confirmed that this was correct. Although the mobile operators recognised the problem, it was not their business to check content. They believed there was however a need to regulate these matters.

Discussion
The Chairperson asked the print media to comment on who was responsible for the placing of advertisements in the press

Mr Ncube said that the Advertising Standards authority was responsible for the monitoring of advertisements and would take up complaints in relation to that advertising.

Mr Howa added that in theory, the editors were ultimately accountable for words and pictures appearing in their newspapers. There were certain practical difficulties around individual advertisements as there was the need to avoid setting up a parallel constitution by way of a press code. There was a need to challenge the WASPs who should govern what they advertised. In reality the editors of newspapers were not able to check each and every advertisement that appeared.

Mr Tshedu added that different newspapers would have different rules for acceptance of advertisements, and it was not possible to prescribe a universal approach. One publication might exclude certain advertisements while another would accept anything, and the ultimate responsibility lay with the Editor. The advertising department of each publication would know what its limits were, and any suspect material would be flagged for the attention of the editor, who would have to tell them whether to proceed.

The Chairperson asked for comment from civil society organisations.

Ms Doreen Meissner, Chairperson: Standing Together to Oppose Pornography (STOP) said that her organisation was concerned that children of any age were able to access sexually explicit material because of wide advertising. There appeared to be no safeguards that children of under-18 could not access it.

The Chairperson asked if the WASPs were regulated by the FPB.

Mr Iyavar Chetty, Head: Legal Section, FPB, replied that there had been several meetings on this issue. He agreed that the material referred to by STOP should not be distributed via cellphones in terms of the Act since the distribution of such information was only supposed to take place from licensed premises, which would exclude cellphone companies, mail order or internet-based businesses. "Distribution", in terms of the Act, included handling of the matter. However, this was a problem that so far had not been able to be conveyed successfully to the content providers. FPB had also discussed this with the Advertising Standards Authority but this body did not monitor solicitation advertisements at all as they fell outside their jurisdiction.

Mr Karthy Govender, Chairperson: Film and Publication Review Board, said that the views he would convey were not necessarily representative of the views of the FPB. The Review Board agreed that it was important to try to reach some certainty. The constitutional issues must be decided in terms of public opinion. He thought there was a real possibility of a mediated settlement. He thought that the proposal put forward by Mr S Swart could form the basis of a mutually acceptable proposal, and that a minimum standard of prohibiting any child pornography in all publications should appease public disquiet.

He felt that certain issues should be drawn to the attention of the Committee and began to enumerate them. However, the Chairperson felt that these went more to the substance of the individual provisions of the Bill, and asked him not to continue with these at this meeting, but to note that the engagement would be ongoing and that the governance issues raised would be addressed.

Mr Govender stated that the Bill had been drafted with good objectives and intentions but that the pre-classification process was causing concern. He was not sure that it was constitutionally acceptable.

Mr van Rooyen commented that the taking away of the right to legal representation and the taking away of the right to appeal to the Court were particularly problematic amendments.

The Chairperson summarised that the meeting had been useful and had helped the Committee to understand some of the detail and identify more clearly the challenges. He noted that the challenge was to set up a better society, that was supported by Government's creation of platforms for engagement. Press freedom would remain, and there would be respect for structures already set up, but the issues must be fully debated.

The meeting was adjourned.

 

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