Films and Publications Amendment Bill: workshop

Meeting report

Films and Publications Amendment Bill Workshop
The Chairperson stated that this meeting would take the form of a Committee Workshop, in order to find common ground between the NCOP and National Assembly Committees with regard to the proposed amendments to the Films and Publications Amendment Bill (the Bill) that had now been received from the NCOP. The reason for this was the difference in understanding between this Committee and the NCOP Standing Committee.  This format would also allow the Films and Publication Board to raise some of critical issues that came out of its recent conference.

The Chairperson proposed that the meeting engage with the information from the NCOP, and discuss those issues before making a final decision on the recommendations the next day. He expressed regret that NCOP members were not present in the meeting.

Mr S Swart (ACDP) raised concerns regarding the NCOP amendments. He noted that clause 19 was to amend Section 16of the Bill. The problem was to balance the right of freedom of the media against children’s’ right to be protected from forms of pornography. The amendments proposed by the NCOP were quite substantial and drastically watered down the protections that the NA had sought to The new section 16(2) in particular, did not had the word ‘explicit’ and referred only to ‘sexual conduct’. Mr Swart noted that the clauses (i), (ii) and (iii) should be removed. He suggested a return to the version debated at and approved by the Portfolio Committee, especially considering the indaba held in June 2008 around the need to protect children from pornography.

Mr M Lowe (DA) asked for an explanation as to why the NCOP made those amendments.

The Chairperson requested participation and engagement from everyone present around clause 19. He requested that the Parliamentary Legal Advisor be given the opportunity to address the amendments.

Adv Mukesh Vassen, Parliamentary Legal Advisor, clarified that parliament had asked the Parliamentary Legal Advisors to specifically address Section 44 of the Constitution.

In regard to Clause 19 of the Bill, the first issue was that of ‘sexual conduct’. There was agreement that ‘explicit’ must be removed. The definition of ‘sexual conduct’ was changed to define other categories because the Films and Publication Board had asserted that pornography could not be classified. The definition in this Bill referred to ‘male genitalia in the state of arousal’ and a description of that. This would affect scientific journals and matters not related to pornography. The Sexual Offences Act defined pornographic material as that of ‘a sexual nature to stimulate erotic feeling’. This would capture matters beyond the first definition, and would require pre-classification that would be an infringement of Section 16 of the Constitution.  The reason for use of this wording had been to limit pre-classification.

Mr Vassen asserted that the definition of a pornographic image treated a person as an object. He suggested that one alternative would be to amend this to state that it was pornography that should be pre-classified, and then this could have a similar definition as in the Sexual Offences Act.

Mr Swart said that it was important that Mr Ivayar Chetty, Acting CEO of the Films and Publication Board (FPB) should contribute to the debate as well. He suggested that the definition be linked with the Sexual Offences Act, as this Act had not been passed yet.  He added that there was a problem with (i) (ii) and (iii) and if the new definition could be incorporated in the Sexual Offences Act, the problem might be covered.

The mention of ‘bona fide scientific journals in the new section 16(4)(a) to his mind did not go far enough as pornography had to be dealt with.

Mr Vassen said that this could also be taken to mean that a newspaper could not report on a rape. He suggested that a definition of pornography could be added, or that the matter should be left as is. Any pornographic image, even that of a naked person, would disrespect human dignity. Scientific journals and ordinary publications on sexual health would have to be pre-submitted. The aim was get pornography pre-classified.

Mr Ivayar Chetty, Acting CEO: Films and Publication Board stated that there was no acceptable definition of pornography. This was why the Films and Publications Act had refused to use the word pornography as images were not only available to adults.

He emphasised that there was no acceptable definition of pornography. Established feminist theorists stated that pornography was the theory and rape was the practice. This was a part of the subjugation of women and was the reason why the FPB had avoided trying to define pornography, except for child pornography.

Mr Chetty stated that according to United Kingdom legislation even an image of a fully clothed child could  constitute child pornography, depending on the focus of the camera, so an image did not necessarily have to be a naked one. He added that the problem was one of harmonising laws, particularly in relation to children.

He noted that classification did not affect new section 16(2), but banning it would have an effect. What was intended was an age restriction to prevent children from being exposed to the type of material that had been established, through scientific research, to be harmful and traumatising to children.

Mr Chetty asserted that prior classification was not censorship, as classification simply meant that the material was for suitable for adults but not for children. It was intended to protect children from this kinds of material. He expressed uncertainty as to how to stretch classification to bring it in line with the Constitution.

Mr Chetty said that the changes suggested did narrow down the effects. The FPB had been doing classification for ten years and had had no problem with newspapers or magazines.

The exemption provision in the Act, now contained in the new sections 22 and 23 and Schedules 5 and 9 for example, which exempted bona fide scientific journals or materials of an artistic nature, had been incorporated. Scientific journals were exempt and so were books with artistic context.

Mr Chetty stressed the importance of viewing this in the context of the objectives of the Films and Publications Act and the function of the Board, which was primarily to provide information to the public so that they could make appropriate choices to protect children from exposure to materials established as harmful, disturbing or traumatising to them. There had been absolutely no comment from the Constitutional Court as far as the definition of ‘sexual conduct’ was concerned.

The Chairperson asked what the position of the NCOP was regarding the harmonisation of laws.

Mr Chetty stated that the purpose of the Sexual Offences Act was to deal with ‘contact’. The possession of pornography was not criminalized, as it depended on a person did with that pornography, but the use of it could then criminalised. Possession was only criminalised in the Films and Publications Act. The Sexual Offences Act dealt with displaying or creating child pornography. The Sexual Offences Act dealt with contact and abuse.

Mr Swart asked Mr Chetty what the problems were, as the definition in the Sexual Offences Act related to pornography being used where children were “groomed”, so that they would then become used for sexual trafficking, and that this went wider than contact.

Mr Chetty noted that pornography as defined in the Sexual Offences Act was restricted to pornography that appealed to erotic and not aesthetic senses. Prohibition was limited to materials that appealed to the erotic, as the same image might be presented in an artistic way.

Mr Vassen agreed that those were the issues dealt with in the Sexual Offences Act, specifically regarding the grooming of children. He added that he disagreed with or did not understand some of the issues that Mr Chetty had raised, especially that pre-classification was not constitutional, and issues regarding child pornography. In his view the definition needed to be narrow enough to deal with the issues. Mr Vassen asked if there was a way to specifically craft the wording in a narrower rather than a broader sense, so that legitimate publications will not have to be pre-classified.

Mr Chetty stated that child pornography was not simply the use of children in pornography; another aspect was the exposure of children to pornography. This was why the new Section 16(2) of the principal Act was relevant with regard to child pornography. He added that he had been performing his duties as a Board member without problems with the Constitutional Court and his experience had dealt with the best way to protect children.

The Chairperson said that the legislature would ultimately decide what was to go into the Bill and asked Mr Chetty to share his engagement with the NCOP point of view.

Mr Chetty stated that the NCOP was influenced by legal opinion. The Board was trying to explore more completely the banning of pornography at its recent conference at Gallager Estate. However, it was noted that the Constitution gave everyone the right of choice. The Bill should be tightened up as far as possible, in regard to children, as they were accessing explicit material far too easily.

The Chairperson asked Mr Chetty to identify the new challenges raised at the conference around Clause 19.

Mr Chetty responded that Clause 19 was raised to satisfy delegates that the FPB was tightening up on what children may or may not be exposed to.

Adv Mongamezi Kweta, Senior State Law Adviser: Office of the Chief State Law Adviser, stated that the State Law Advisers had sent an initial formal submission to the NCOP.  They referred to the recent case that held that ‘the constitutional protection of freedom of expression may be abridged to the extent that it was necessary to do so for the protection of other rights’. The Court held that in determining the extent to which one right may be curtailed, regard must be held both to the extent of limitation; and the purpose of limitation. The law recognised the validity of this limitation of a right, if the right being affected was outweighed by the benefit to be gained in terms of Section 36. The State Law Advisers  submitted that in the new Section 16(2), the limitation was justifiable and the new Section must be read and understood in the context of the whole Bill and Act. Mr Kweta added further that with regard to the protection of children against sexual exploitation, the words ‘sexual conduct’ were clear and unambiguous enough to cover the purpose of the Bill.

The new wording in sub paragraphs (i) to (iii), which was adopted by the Select Committee, used the phrase ‘explicit sexual conduct that degrades a person’. Hence a definition of ‘sexual conduct’ that covered these sub paragraphs was already in sub-clause (2).It was the opinion of the Chief State Law Adviser’s office that ‘sexual conduct’ as it stood in the Bill , should remain.

Ms Bongiwe Lufundo, Principal State Law Adviser, OCSLA, reiterated that the position of the State Law Advisers was that this section was clear and unambiguous. ‘Sexual conduct’ as referred to in paragraph (a) was not too broad. It was clear and defined in the Act, and should be supported as it stood in the Bill. The wording of the amendments of the Select Committee was not included in the submission of the State Law Advisers and was not supported by them.

Mr Deon Erasmus, Chief Director: Legal Services: Department of Home Affairs, said that with regard to Section 16, paragraphs (a), (b) and (c) were matched to the wording of the Constitution in an attempt to reach better alignment.

He said that the Board worked with visual presentations, and in the amendment to subsection (2), the words ‘publications that contain visual presentations’ had been deleted. He asked why this had been removed as the Board deals specifically with ‘presentations’, ‘descriptions’ and ‘representations’.

Mr Vassen argued that if the words remained, then for example a description of racial hatred or xenophobia could not be reported, because  pornography or a description of pornography remained pornography. There was an attempt not to capture unrelated issues.  The question was whether the purpose was to extend the definition to capture other things or to confine it only to pornography.
When the B-version of the Bill was approved, it contained a number of unintended consequences and this was where the debate should be focused.  The question was whether this definition missed something or whether it was sufficient to concentrate on pornography only.

The Chairperson emphasised that the focus should be on constitutionality, rather than on the objectives.

Mr Chetty noted that the Board dealt with images and not with conduct, as decisions must be made on the basis of what was in front of the Board. It was not easy to determine intention, based on images. Prior conceptions about the proper classification of a product could not be brought to the classification process, as it had to be based on testing against guidelines. 

Mr Chetty said that the definition of child pornography talked about images that were capable of sexual exploitation. The term pornography was avoided because it raised difficulties for classifiers. The other problem with the definition in the Sexual Offences Act was that it talks about ‘an explicit or sexual nature’, rather than matters of a purely ‘sexual nature’. The question was whether this meant   that ‘violence’ could  also be included here. Mr Chetty added that it was difficult when the meaning of explicit was incorporated with ‘sexual’. He said he did not understand what the phrase ‘sexual or explicit’ meant.

Mr Swart suggested that there should be a return to the National Assembly version unless there were compelling constitutional reasons that prevented this. It appeared from the remarks of the State Law Advisers that it was being watered  down. The focus was on pornography.

Mr Lowe said that unintended consequences should be addressed and that trampling on the rights of open reporting and media freedom must be guarded against.

Mr Vassen said that Section 16(2) was not just about classifying, as it referred to pre-classification. In a meeting with the Department this was the definition developed to cover all acts of degradation. Pornography was regarded as degrading, and this was the way it was interpreted by the Constitution  based on the achievement of substantive equality. Mr Vassen added that this was the reason why ‘explicit’ should not be included and the wording should just be ‘sexual conduct that was degrading’.

Adv Yolandi van Aswegen, Deputy Director: Department of Home Affairs, said that many of the amendments that came about in the NCOP were based on a legal opinion from independent senior counsel. That decision had been taken because of some conflicting opinions.

Mr Erasmus said that an opinion was obtained from the State Law Advisers of the Department of Justice regarding the constitutionality of the Bill. There was agreement on the version from the Portfolio Committee. The legal opinion provided by Advocate Jamie had been obtained at the request from the NCOP.

Mr Vassen stated that there must be reasonable certainty about the objective and intention regarding this matter.

Mr Chetty expressed difficulty with the Constitutional Court definition of child pornography as contained in the Sexual Offences Act. It was contrary to a judgment on an XX case, because in that  judgment the Constitutional Court stated very clearly that erotic and aesthetic principles were essential elements of child pornography, although this was not what the Sexual Offences Act was saying.

Mr Chetty emphasised that the major flaw in the Constitutional Court case was that it did not understand child pornography as a single concept,  so it twinned the meaning of child and pornography.

Mr Vassen asked why the definitions of pornography and child pornography in the Sexual Offences Act could not be used. 

Mr Chetty responded that the purposes were different. A definition was required for child pornography for purposes of classification. The Films and Publications Act was concerned with the criminal law aspects. The Sexual Offences Act was part of the criminal code. The FPB was concerned with administrative law, and with not criminal law.

Mr Swart stated that the difficulty was that Mr Chetty said he was not going to be able to apply the definition in practice, because intention had to be established, and this was not something that concerned the FPB.

Mr Vassen said classification issues were not being dealt with yet, as pre-classification was being dealt with.

Mr Chetty said it was not a problem to include the exemptions in Schedule 5 and 9 into Section 2 of the Act. He added that sub clauses (i), (ii) and (iii), as previously discussed, were not helpful. Because the impact of exposure to sexually explicit materials for children was a huge problem, Mr Chetty expressed his preference for the original Portfolio Committee proposal.

Mr Erasmus said that the first option was to go back to the National Assembly version, and the second option was to build in an exemption.

Mr Tseletsi Sebelametja, Acting Director: Drafting:DHA  said that the definition of ‘explicit sexual conduct’ in the Act under item (v) did refer to sexual intercourse, whether real or simulated, so that was covered.

Ms van Aswegen agreed with Mr Vassen that the qualifications were addressed. If a newspaper were to decide on whether or not to submit for pre-classification, the basis of the submission did point out qualification.

Mr Chetty said that if it was considered wide enough, then he was satisfied. He expressed uncertainty regarding the need for exemptions as it would require lot of work on the part of the Board.

Mr Swart stated that on page 10 of the draft Bill, with reference to the new section 16(4)(b), only ‘extreme violence’ was mentioned. ‘Sexual violence’ had been removed and there was a need to look at this and consider whether the replacement made sense.

Mr Vassen stated that Section 16(2) would prevent the media from reporting on rape, war incitement or imminent violence.  That was why the words were removed. Removing the words did not prevent classification. 

Mr Chetty said that ‘conduct’ was not being dealt with here, but that ‘description’, ‘depiction’, and ‘representation’ of sexual conduct was being dealt with.  ‘Explicit sexual conduct’ meant graphic or detailed depictions of that sort of conduct.

Mr Lowe said that if Mr Chetty was satisfied then it could be implemented.

Mr Chetty said that the Board would be able to deal with the removal and would highlight the reference to films and publications.

Mr Sebelametja said that if the definition of ‘explicit sexual conduct’ was not tampered with, the removal of the words would not pose difficulties.

Mr Erasmus emphasised that the words in the definition of ‘explicit sexual conduct’ would only be deleted from the Act subsequent to them appearing in the definitions. The removal of the words ‘sexual’ and ‘domestic’ would be replaced by ‘extreme’. However the concept of ‘sexual violence’ and domestic violence’ would be retained and defined in the Bill.

Mr Vassen stated that in Clause 19 there was an amendment that referred to a newspaper published by the Newspaper Association. In the B version of the Bill reference was made to exemption of the Newspaper Association, but at the time it was not known that the whole of the press media was governed by the Press Ombudsman. The Association for Independent Publishers (AIP) involved all legitimate newspapers. If there were to be a restriction only to newspapers in South Africa, the court would find this arbitrary as there should not be discrimination between the Newspaper Association and the AIP. 

Mr Chetty said there was no intention to exclude newspapers.

Adv van Aswegen volunteered the following insertion for a new subsection 16(1): ‘any person may request in the prescribed manner that a publication, other than a newspaper, which is a member of a body recognised by the Press Ombudsman and who subscribes and adheres to the code of conduct enforced by that body, which is being distributed in the Republic’. ‘Newspapers’ could be replaced with this insertion. Ms van Aswegen asked if bona fides could be retained.

Adv Vassen said that this would not prevent a pornographic magazine like Hustler from joining. There was legal justification for newspapers that contained these kinds of articles. The whole of the newspaper arena contained three wings: the first was the Newspaper Association of South Africa, the second was the AIP and third was the Magazine Publishers of South Africa – this was for pre-classification. As long as newspapers remained it would be acceptable.

Adv van Aswegen suggested that the previous insertion be changed to: ‘any person by request in the prescribed manner, that a bona fide newspaper that was published by a member of a body recognised by the Press Ombudsman and subscribes and adheres to a code of conduct enforced by that body’.

The Chairperson noted that this would still have to be worked on.

Adv Vassen suggested that subsection 3 of the proposed Section 24 be moved to Clause 21, as it related to the class of games. The NCOP had proposed the deletion of the word ‘subject’.

Mr Erasmus said that regarding the deletion of the word ‘subject’ in 24(2) and 24(3), which was proposed by the State Law Advisers, the content of the broadcaster was not being regulated, as XX content was subject to the criminal provisions of the Act.

Ms Lufundo said that the amendment was proposed as result of submissions made by her office to the Select Committee. The argument was based on Section 192 of the Constitution, where a body must be established to regulate broadcasting in the public interest. The section was viewed out of context. When the advisers looked again at it, they concluded that the section as it stood did not regulate Independent Communications Authority of South Africa (ICASA) or broadcasting. The word ‘subject’ was removed because if it remained the exemption would be granted.  If the word was removed it gave the impression to broadcasters that even though they were exempted from the application of the Act, the section on penalties and offences would not be applicable to them.

Ms Lufundo stated further that the amendment was therefore left as proposed, but the word ‘subject’ was re-inserted into the new Section 24(a)(2) and (3). There had been removal of words from the new Section 27 because they did not read well there. In Clause 27, on page 14, what had been contained in subsection (3) had been omitted and had been put under the Act’s Section 18 that dealt with films and classification. Therefore it had not essentially been removed altogether.

Mr Chetty said that ICASA policy was determined by government. The independence of the ICASA Board meant the independence of decision-making. The previous provisions of the Act had not been challenged, as the broadcaster complied. This could mean that there was nothing in the law to prevent broadcasters from showing pornographic material. Criminal law could not be selective, and no purpose was exempt. This meant XX and XX18 classification had no effect.

Adv Vassen said that the main issue was by whom the broadcasters should be regulated. Section 2 of the ICASA Act, and Sections 3(3), 3(4) and 3(5) had all the criteria to regulate independence. The broadcaster was not exempt from prosecution, but it must be regulated by an independent body.

Ms Lee Anne de La Hunt, Special Advisor to the Minister of Home Affairs, said that the Minister had to defend it, as it was a risk that could be challenged in the Constitutional Court.

The Chairperson asked what the engagement was with broadcasters as there was a need to look at the role of parliament in appointments.

Adv Vassen stated that regulating meant regulating the content.

The Chairperson asked what the final position was.

Mr Erasmus said the word ‘subject’ had to be re-inserted and there should be consideration of whether it was necessary in the new Section 24A, to limit the application to sexual offences only.

Mr Erasmus stated that in the wording of the new subsection 24A(6), on page 4 of the Select Committee, amendments had added ‘a film or game’.

Mr Erasmus stated that Clause 29 had specific penalties that needed to be dealt with. He suggested ‘for a period not exceeding 10 years’ should be deleted.
 
Mr Vassen said that regarding ‘capping’, the provision currently narrowed the impact. The issues were fully covered in the Sexual Offences Act.

Mr Erasmus agreed to the deletion of the capping and the words ‘liable to conviction’.

Mr Vassen suggested the removal of the maximum sentence, as the removal of capping meant the maximum sentence could be imposed.

Mr Chetty disagreed because the offences of the Sexual Offences Act and the Film and Publications Act were different.

Mr Erasmus said there was no capping in the Sexual Offences Act and courts should be allowed to impose the maximum sentence. He reiterated his view that capping should be removed.

 The Chairperson stated that the engagements today formed part of the deliberations on the passing of the Bill. He stated further that the Committee programme of activities would be revisited tomorrow.

The meeting was adjourned