Child Pornography: briefing by Film and Publications Board

Social Development

16 October 2001
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Meeting report

Portfolio Committee on Social Development 17 October, 2001

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
17 October 2001
CHILD PORNOGRAPHY: BRIEFING BY FILM AND PUBLICATIONS BOARD

Chairperson:
Mr E Salojee

Relevant Documents
Memorandum on Proposed Amendments to the Films and Publication Act,1996

SUMMARY
The Film and Publications Board focussed on recent developments with regard to child pornography, in particular proposed amendments to the Film and Publications Act, 1996 to deal with loopholes in the existing legislation. The main area of concern was the Internet, and it was felt that more needed to be done to address the issue of child pornography in this medium. Of particular concern was the area of search and seizure described in Section 27 of the 1996 Act. It was felt that the procedure was too cumbersome, making effective investigation and prosecution difficult.

Questions were asked about the capacity to prosecute such cases, extending the law even further and South Africa’s role and position in international efforts to combat child pornography. The overall message which emerged from committee members was that there was a desire to do anything possible to combat child pornography and protect children. Concrete proposals were made as to what the committee could do to effect this.

The meeting also adopted the report on the committee’s recent study tour of the Eastern Cape.

MINUTES
Child Pornography: briefing by Film and Publications Board
The Chairperson welcomed the representatives from the Film and Publications Board, Dr Makaula, the Chief Director, and Mr Chetty, who deals with legislative issues. Mr Salojee noted that the protection of all children remained a continuing concern. The sexual abuse of children and in particular the creation of pornography for the Internet and film was an area which required attention. He said that his impression was that this form of pornography seemed almost impossible to control, but remained unacceptable. For this reason, he was looking for signs of a real movement towards initiatives which would have some impact.

Dr Makaula thanked the chairperson and the committee for the invitation. She said that she was comforted by the interest of the committee, as there was often a sense that the Film and Publications Board did its work in isolation. She said that progress had been made since the last submission but felt that this had not been fast enough or far-reaching enough, due to circumstances outside the board’s control. She explained that a national conference had been organised in May 2000, which brought together judges, prosecutors, magistrates, the police, and around fifteen community groups, such as Child Online and the Network against Child Abuse. The conference was organised because it was felt that there was a need to identify ways in which the highest conviction rate possible for child pornography offences could be achieved, because at that time, the law had not been very successfully implemented. As a result, the workshop looked at possible shortcomings in the existing legislation, as well as offering an opportunity to express frustrations and share experiences. It was also felt that the issue extended beyond South Africa’s borders, and consequently three experts from overseas were invited to address the workshop. They were a special agent from the FBI who specialised in Internet Child Porn, a London Barrister with experience in dealing with child porn offenders and a member of the UK-based Internet Watch Foundation, a hotline in the UK for the reporting of illegal content on the Internet. Dr Makaula expressed the view that perhaps South Africa needed to establish such a hotline. It was felt that the workshop was a success, examining the legislation and theory underlying it, but also focussing on specific cases, where the input of the participants helped identify what went wrong when cases were investigated and prosecuted.

Dr Makaula said that the Film and Publications Board had the jurisdiction to police the Internet to some extent, owing to the 1999 amendment to the act, but that the board had not moved very far in this regard, due to the complexity of the Internet, and the board’s lack of experience in this regard. They were looking at the setting up of a hotline service, but for this to be effective, the co-operation of the Internet Service Providers (ISPs) was required, and so far this had not been forthcoming. The ISPs’ objections were based on the fact that they did not want to ‘criminalise’ their clients. However, Dr Makaula indicated that the board was monitoring international norms, and had also gone some distance in convincing ISPs that they ought to help to stamp out this illegal activity. She then handed over to Mr Chetty to discuss some of the proposed changes to the legislation.

Mr Chetty started by saying that one of the real problems had emerged from the case of a Saldanha man who had abused boys between the ages of six and fourteen, and filmed it. The police officer who arrested the man had acted with "overzealous haste", which might be understandable in such a case. The officer was not aware that, in cases of child pornography, a special warrant was required from the Director of Public Prosecutions. This was a situation unique to child porn, and the policeman had acted according to normal search and seizure procedures. There was clear evidence of child porn, on video and computer disks, but it was deemed inadmissible. Fortunately, the man was still convicted of child abuse, but his sentence would have been increased if the additional conviction had been obtained. An appeal had been sought by the State, on the grounds that admitting the evidence protected the rights of society, but the magistrate had not allowed this.

The workshop identified two key amendment proposals. Mr Chetty said that child porn was the abuse and torture of children, ranging in age from one week to thirteen years, adding that there was photographic evidence of cases involving children as young as a week old. In Bellville, there had recently been an incident where a man had raped his two-year old child, who subsequently died from injuries related to the rape. Mr Chetty also pointed out that every image of child pornography represented an abuse of a child, but that the definition of harm resulting from this type of pornography was broader than just harm to the child, as it represented a significant harm to society itself.

Section 27 of the Film and Publications Act deals specifically with child porn, and there are two aspects of this section which make successful prosecution difficult. The first of these is the requirement that a Director of Public Prosecutions issue a search and seizure warrant. In a geographically large country such as South Africa, this was impractical, as it gave criminals the time to erase or destroy the evidence. As an aside, he added that nothing could ever be truly erased from a computer’s hard-drive, and the police technical service could recover this ‘erased’ material. He said that Gary Glitter had discovered this to his cost, when he was arrested a few years ago. All participants in the workshop had rejected this provision, and the amendments sought to have it deleted from Section 27 of the Act. The second condition was that, before prosecution, the Act required that the Board give a statement that the image being submitted as evidence hadn’t been cleared i.e. that the Board had not said that it was not child porn. This was impractical, as thousands of images may be involved in a single case. It also added to the cost of prosecution, as a member of the Board had to issue the certificate. Consequently, it was felt that this interfered with speedy prosecutions and investigations, and it was felt that this provision should be deleted from the Act. He added that this did not preclude the defence from requesting such a certificate, in mitigation of sentence, but then the cost would pass to the defendant and not the State. Mr Chetty said that this provision was a legacy of censorship, where it was felt that added protection from arbitrary search and seizure was necessary. He also indicated that there had been many requests from prosecutors as to the status of the proposed amendments since the workshop. Currently, the Deputy Minister of Home Affairs was examining the amendments.

Mr Chetty then went on to discuss the Internet, saying it was the medium of choice for paedophiles as they were able to solicit through chat rooms, and there was a vast amount of child pornography available on the Internet. He gave an example of the Wonderland club, an Internet site which required members to submit 10 000 images, before they were allowed to join. Even conservative estimates of the clubs numbers represented a horrifyingly large number of incidents of abuse. He added that such sites were very easy to come across, and could be accessed by children. Once accessed, even by accident, the sites were very persistent, and it was often necessary to shut down the computer to stop the images reappearing on the screen. He said that there were a number of cases pending involving the downloading of child pornography. He added that many of these cases were against academics using academic facilities, and the former Mayor of Cape Town was another well-known example. Mr Chetty also said that the Internet was notoriously difficult to police, and that if China tried to police it, as had at one time been suggested, it would provide full-time employment for all the people in China.

The original Film and Publications Act was viewed as one of the best internationally, and the Germans, Americans and Bulgarians in particular had expressed an interest in it, with the Bulgarians using it as a model for their own legislation. Mr Chetty also hastened to point out that, with regard to the Internet, they were not seeking to introduce any new crime, but rather to extend the reach of criminal law to cover a different medium for committing the same crime. He added that American Express currently would not process any transaction for child porn, and other banks in South Africa had been approached to take a similar stand, as they were in one sense aiding and abetting or at the very least associating with the committing of an offence.

The way the amendment proposed ISP involvement was that, if the ISP had knowledge that its service was being used for this purpose, it would have to accept responsibility and take action. This was envisioned in two ways. Firstly, the ISP would be given a takedown notice, which would oblige it to remove the site within 24 hours. Failure to do this would lead to the matter being referred to the police. This meant that no monitoring was necessary, as the ISP would only have to take action once they were made aware of the site and its contents. In Canada, the law went further, making it an offence to provide Internet services to convicted paedophiles. To monitor the ISPs, the amendment proposed that all ISPs had to register with the Board, in a similar way to how all video dealers and outlets where films were viewed had to register. This was an administrative measure, and had no requirement that the ISPs had to disclose anything to do with site content. Mr Chetty added that child porn was not a classification matter, but a criminal offence and as such, all incidences had to be referred to the police. The Board also had time and cost constraints which made it impossible for it to deal with such matters. Mr Chetty said that the aim was to bring ISPs within the scope of the Act, as this was the only piece of legislation which dealt with child pornography in South Africa. he then asked if the committee would like some input on the effects of child pornography.

Mr Saloojee indicated that this was acceptable.

Mr Chetty then detailed some of the effects, among them health risks to children such as increased risk of cervical cancer, STD’s, infections, vaginal and anal pain and AIDS and an overall negative effect on emotional and mental development. He said that the conference at UNISA which had identified these issues had expressed the view that this was more serious than homicide, as it was the murder of the spirit and emotions of the child. It also resulted in excessive anxiety, depression and self-blame, the situation where deviant sexual behaviour came to be seen as normal and the abuser became someone that the child identifies with and the child came to distrust adults. The psychiatric difficulties which resulted often led to suicidal tendencies. A report from the USA also identified acute anxiety and depression, and added that the child can then become an abuser. The fact that a record of the child’s abuse was in circulation had negative implications for the child’s future. One of the most serious effects is that this desensitises society and suggests that children are acceptable objects for sexual attention. Mr Chetty also said that the amendments proposed that descriptions of sex with children should be ‘criminalised’, as these facilitated the entrance to child abuse.

Questions
Ms Southgate (ACDP) asked how child pornography was defined and whether the demonstration of condom-use to schoolchildren did not constitute child pornography.

Ms Tsheole (ANC) voiced her appreciation for the work done by the Board and asked why a case was needed before action was taken to deal with the loopholes in the law. She also said that Ms Southgate had covered a similar question, but asked at what age sex education should be dealt with a school.

Adv Masutha said that the Justice Committee was currently looking at a Bill on Interception and Monitoring of Communication. This bill sought to maintain the status quo whereby monitoring of communication was not possible without the involvement of a judge. He asked if there were synergies between that process and the proposed amendments to the Film and Publications Act. He also said that child sexual offences are covered in the Sexual Offences Act. He asked whether what the relationship was between child porn and the age of consent, for example.

Mr Chetty said that the definition of child pornography was hopefully going to be broadened through the amendments to include not only images but also descriptions which could be deemed to encourage child abuse. In terms of sexual exploitation, he identified a difference between sexual exploitation of children and the recording of such exploitation. It was the recording of such which the Film and Publications Board dealt with, and the age for something to be considered child pornography had been set at eighteen years, as this was congruent with most foreign jurisdictions. Mr Chetty indicated that he had made representations to the International Treaty on Cyber-crime and South Africa had been invited to sign this treaty. But in terms of the Interception and Monitoring Act, the Board was not proposing that communications be intercepted or monitored, therefore there was no need for a judge. However, he indicated that the monitoring issue was dealt with in the international treaty and that, furthermore, it was not possible to deal with this issue without international co-operation. He advocated the harmonising of South African legislation with legislation being promulgated internationally. In response to the question, he said that the amendments did not infringe on the Act being discussed by Justice.

Dr Makaula said that the definition of ‘a child’ had been debated at length by the Board, and eighteen had been felt to be the ideal. She said that they were dealing with images, and there had to be an allowance for a margin of error - someone might look sixteen but actually be nineteen. However, it was felt that to reduce the age to sixteen for example increased the margin for error, and ran the risk of leading to the exploitation of younger girls. For this reason, it was felt acceptable to err on the side of caution. With regard to condoms in schools, she said that it was quite controversial and very vexing. She added that she was not qualified to answer but hoped that those tasked with the responsibility for such decisions, such as the Department of Education, would include discussion which highlighted the complexities of sexuality, and helped to discourage sex from too early an age. Dr Makaula felt that focussing solely on condoms was inadequate.

Mr Chetty returned to the issue of defining child pornography saying that there were magazines which sought to promote paedophilia, for example as boy-love, and that the amendment sought to make such magazines illegal. These magazines did not include pornographic images and were therefore not illegal at the moment. But they acted as a liaison point for paedophiles and for this reason were unacceptable. He added that the images were horrific and suggested that the committee view some of them, to get a sense of the seriousness of the situation.

Mr Saloojee said that the committee had seen such images in previous presentations.

Ms Coetzee-Kasper (ANC) asked whether it was necessary to focus solely on child pornography rather than pornography as a whole, given that images could be manipulated etc. She also asked how effective legislation dealing with South African ISPs would be, when so much of the pornography available was located on international sites.

Ms Mars (IFP) asked what the way forward was, in terms of assistance the committee and its members could offer, such as asking questions in Parliament etc. She added that it was their duty to protect children. She also asked what stage the proposed legislative amendments had reached.

Dr Jassat (ANC) said that the Internet was the chief method of transmission and there was a need to nip the problem in the bud. He asked if there was no way to blot out these images by for example creating a virus to detect them. He also asked whether some sort of international monitoring ombudsman was not possible, although agreeing that the ‘Big Brother’ scenario needed to be avoided.

Dr Makaula said that there was a need to keep pornography and child pornography separate, because pornography was not illegal, provided it was not sold to children. She said that child pornography, and Mr Chetty could elaborate on this, was torture, and there was no room in any society for these types of images. She agreed that an international effort was needed. In response to Dr Jassat, she said that there had been attempts to develop blocking software, but they tended to block more than they should. She concluded by saying that the amendments had been ready from the Boards point of view as early as October 2000, and had gone to Home Affairs, then returned for some editing, and then returned to Home Affairs.

Mr Chetty said that it was not possible to block the system due to the nature of the Internet. It had been developed by the American military to ensure that messages could be sent and received irrespective of how many command centres were destroyed, and consequently, the system was designed to find any way possible to send a message between two points. Consequently, messages were merely re-routed around blockages. The amendments were ready six months ago, and Mr Chetty said that he felt sure the Deputy Minister of Home Affairs would welcome any assistance in furthering their progress. He went on to say that child porn was a multi-billion dollar industry. As an example, he explained that a Texan husband and wife had been arrested and it was found that they had earned $1,4 million in one month. The husband had been sentenced to over a thousand years imprisonment, and his wife to fourteen years. However, in South African law as it stands, the maximum penalty is five years, and Mr Chetty indicated that he had yet to see the maximum penalty being implemented. A maximum penalty of ten years was included in the amendments, but Mr Chetty felt that this still did not send a strong enough message.

Dr Makaula again made the point that in this instance it was perhaps better to over-legislate than under-legislate.

Ms Ramotsamai (ANC) said that the maximum penalty should be increased, and this should fall under the category of a serious offence. She also recommended that it should form part of the Child Care Act, and asked if the Board had met with the Law Commission to discuss this issue. She added that there should be no warnings to offenders, and a minimum sentence of twenty years should be proposed. She also asked how the registration and enforcement of ISPs was envisaged.

Ms Rajballoi (MF) asked whether, since it was not possible to do something at the level of the Internet, whether intervention at the level of community awareness should not be sought.

Ms Kalyan (DP) said that as a committee, the issue of the age of a ‘child’ needed to be defined, since at the conference, it had been decided to make it fourteen years. She asked what the view on the registration of paedophiles was, and whether they had not forfeited their rights to not be monitored. She agreed that instruments for monitoring of the Internet were imperfect and suggested that involving the communities in monitoring would be more effective.

Dr Makaula said she was pleased to hear the perspective on a minimum sentence, and recommended that the committee support the proposed increase. She said that she agreed with Ms Ramotsamai’s sense that this constituted a crime against humanity. In terms of the registration of ISPs, she said that if it were part of the legislation, ISPs would be obliged to comply. Those in the association would comply, she felt sure. She also suggested that ways of enforcing it could be sought through liaison with the Communication Committee. One of the biggest campaigns that would have to be run, according to Dr Makaula, was one around public awareness of this problem. However, she pointed out that the public could only be engaged with once the law was in place, the hotline set up and the co-operation of the ISPs agreed upon.

Mr Chetty said that the issue of a warning applied only to ISPs, since they may not be aware of what is happening on their sites. As an example, he said that there were over 200 000 news-groups on the Internet and it would be difficult for ISPs to monitor them all themselves. In terms of education, he said that he had already started to engage with libraries to start a campaign to warn parents about unsupervised Internet access. He recommended that parents download NET-Nanny or some similar monitoring program, which was freely available and screened the Internet content being accessed by children. He also recommended that the computer not be in a child’s bedroom, where it was impossible to monitor what they were accessing. He clarified the age issue, saying that it applied only to child pornography and was different from the age of consent etc. He also said that this was the international standard. Regarding the registration of paedophiles, he said that there had been interest from Washington and he had had videoconferences with people there over this issue, but that the Law Commission had found that this would be a violation of people’s rights.

Mr Saloojee said that he could see members leaving, but said that sufficient members needed to remain until the end to adopt the Eastern Cape report, and he asked members to stay. He also said that the committee needed to discuss recommendations to the commission dealing with the Child Care Act on this issue. He said that the committee could request officials from the Department of Home Affairs to come and brief it on the status of the amendments, and follow up on the signing of the international treaty (on Cyber-Crime).

Ms Southgate requested a copy of the treaty, adding that it was due to be signed on the 23 November, and the House rose on the 16 November. She said that this meant that the matter had to be dealt with swiftly.

Prof. Mbadi (UDM) indicated that he appreciated the amendments, but voiced a concern over whether there was the capacity to enforce them. He also asked how safe children in the rural communities were from child porn.

Ms Southgate said she was aware that hackers could send viruses to computers which attached porn to outgoing mail. She asked what the potential was for someone to be ‘set-up’.

Dr Makaula said that it was not a crime to come across child porn, but the crime was to download it i.e. have it saved onto your hard-drive.

Ms Southgate said that she had heard instances where it went onto the hard-drive.

Mr Chetty said that there had been the case where the Commonwealth Ministers, at a meeting in Australia, had all had porn sites placed onto their computers. He suggested that IT technical people would be better qualified to answer this question.

Dr Makaula said that the source would be known, and there would be some recourse to action. But she agreed that the technical people would be best able to answer the question. With regard to the rural area, she said that her understanding was that no child was safe from this because it is used to break down the natural inhibitions of children to encourage sex, and is even sometimes distributed by primary school kids influenced by adults, such as an uncle or neighbour i.e. someone known to them. She agreed that they did not have the capacity on their own, but said that the public would have to get involved, as the "eyes and ears" of the initiative. She said that there were 10 000 video-stores in the country and it was impossible to monitor them all. Rather, the public reported irregularities and the Board acted on these.

Mr Saloojee made reference to New York City, which five to ten years ago had introduced laws and changed the government regulations regarding where pornography could be sold from, restricting it to certain areas. However, in South Africa it seemed there were no such restrictions. International experience suggested that it was impossible to remove it completely, and it would continue to be part of South Africa but there was something that could be done. He said that the number of initiatives dealing with children offered some hope.

Mr Chetty said that this was the problem, and that they had made recommendations regarding the zoning laws, as now they could open up anywhere, even next to schools. He added that the committee could also offer support by not agreeing with cutbacks to the police Child Protection Units.

Mr Saloojee indicated that the police had been invited to the committee and had given the members the understanding that the units would not be scaled down, but remain as they are or have their effectiveness enhanced. He added that the briefing had been tremendous, and the committee viewed these issues very seriously. He said that social ills emerge with the new freedoms and rights etc. He also said that the presenters had given the committee a good idea on how to interact with other members of the government to facilitate improvements. He concluded by saying that he would like to see the presenters again, possibly early in the new year.

Dr Makaula thanked the chairperson and the committee for the invitation.

Eastern Cape Study Tour Committee Report
The members all agreed to accept the Report as it was.

The meeting was adjourned.

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