Response to legal opinion prepared by Adv Ismail Jamie SC

(prepared by the Department of Home Affairs and the Film and Publication Board)

 

1.         Introduction

Adv Jamie was requested by Parliament to provide a legal opinion on the constitutionality of certain aspects of the Films and Publications Amendment Bill, 2006 [B27B-2006] (“the Amendment Bill”).  He firstly discusses the existing legislative framework, followed by a summary of the guiding principles against which the constitutionality of the Amendment Bill falls to be considered.  Adv Jamie then provides an overview of the objects of the Amendment Bill and thereafter provides his opinion regarding the constitutionality of certain clauses in the Amendment Bill.  Adv Jamie also comments briefly on the submissions by the National Association of Broadcasters (“NAB”) and the South African National Editors Forum (“SANEF”).  We will not repeat Adv Jamie’s summary of the existing legal framework, but will rather endeavour to respond to all contentions made by Adv Jamie with regard to the constitutionality of certain clauses of the Amendment Bill in a systematic manner, following the framework set by Adv Jamie’s legal opinion.

 

2.         Existing legislative framework.          

 

2.1               It is essential to mention that Adv Jamie’s legal opinion seems to be based on the Films and Publications Act, 1996 (Act No. 65 of 1996) before it was amended by the Films and Publications Amendment Act, 1999 (Act No. 34 of 1999) and the Films and Publications Amendment Act, 2004 (Act No. 18 of 2004).  Some of Adv Jamie’s references to the Films and Publications Act might thus be incorrect.  For purposes of this response, reference will be made to the latest version of the Films and Publications Act, 1996 (Act No. 65 of 1996), as amended by both the Amendment Acts as stated above (“the current Act”).

 

2.2               In paragraph 7 of Adv Jamie’s legal opinion, the statement is made that the classification of publications is not mandatory in the Act, but applies only if a complaint is received concerning a particular unclassified publication.  This statement is not correct since the current Act provides for two categories of publications:

 

(a)                 the section 16(1) category, which entitles any person to lodge a complaint with the Board in order for a publication to be referred to the classification committee for a decision; and

(b)                 the section 17(4) category, which places an obligation on any person who intends to publish, distribute or exhibit in public any publication containing a visual presentation or description referred to in Schedule 1 or 2, to submit such publication for classification prior to its distribution or exhibition.

 

It is thus evident that mandatory classification is in fact provided for in the current Act.

 

2.3        With regard to paragraph 8 of Adv Jamie’s legal opinion, reference is made to the classification of publications as XX, X18, R18, or F18 if it satisfies the criteria of the Schedules respectively governing those classifications.  However, there are no classifications such as R18 in the current Act.

 

3.         The Amendment Bill

 

            Although Adv Jamie’s summary of the Amendment Bill in paragraphs 9 to 11 is supported, it should be mentioned that section 2 of the current Act, containing the objects of the Act, has not been re-drafted in the Amendment Bill to broaden the objects of the Act, but rather to give content and effect to the existing provision.  Furthermore, mention should also be made of the fact that the Appeal Tribunal established in the Amendment Bill is not a new entity, as suggested by Adv Jamie, but merely a renaming of the existing Film and Publication Review Board.

 

4.         Guiding Principles

 

We note Adv Jamie’s discussion in paragraph 12 to 25 of the guiding principles against which constitutionality of the Amendment Bill falls to be considered.  These principles are:

 

(a)                 the right to freedom of expression as contained in section 16 of the Constitution;

(b)                 the requirement that legislative provisions must be clear, accessible and provide certainty; and

(c)                 the requirement that legislation must be capable of reasonable implementation.

 

In addition it should however be mentioned that the Amendment Bill was drafted taking into consideration a wider range of constitutional principles such as the rights of children (section 28 of the Constitution), the right to equality (section 9 of the Constitution), the right to human dignity (section 10 of the Constitution), the right of access to information (section 32 of the Constitution) and the founding values set out in sections 1(a) and (b) of the Constitution.

 

 

5.         Specific provisions in the Amendment Bill

 

5.1               Clause 19 which addresses the classification of publications

 

5.1.1          The first reservation seems to be the exclusion of only newspapers published by a member of the Newspaper Association of South Africa (“NASA”) from having to submit publications for classification.  It is submitted that this exemption was introduced by the Portfolio Committee on Home Affairs during deliberations on the Amendment Bill in 2007.  The object of the exemption was to ensure that those newspapers that were already regulated through self-regulation and by the NASA, should not be subject to classification by the Film and Publication Board as they would already have a set of guidelines they would be adhering to.  Newspapers that are not members of the NASA, on the other hand, do not have any form of self-regulation or a body that regulates their content and it was thus felt that such newspapers should be subject to classification of publications by the Film and Publication Board in instances where they create, publish or advertise any publication that contains visual representations, descriptions or representations of any of the items listed in paragraphs (a) to (d) of the new proposed section 16(2).  Thus, in support of the principles discussed in the matter of New National Party of South Africa v Government of the Republic of South Africa and Others 1999 (3) SA 191 (CC) at paragraph 24, where the Court explained why the rational connection was appropriate in reviewing legislation, we submit that the Amendment Bill is rationally connected to a legitimate government purpose (i.e. to protect children from exposure to disturbing and harmful materials and from premature exposure to adult experiences).   Therefore the overriding objective of the proposed sections 16 and 18 is not a moral disapprobation but the avoidance of harm to children, in particular, and society in general, and this is not only a sufficiently pressing and substantial concern, but also a constitutional obligation towards the protection of children (section 28 of the Constitution) to warrant a restriction on freedom of expression.  In the matter of R V Sharpe 2001 SCC 2 the Court remarked that “[T]here is a sufficiently rational link between the criminal sanction, which demonstrates community’s disapproval of the dissemination of materials which potentially victimize children and women and restricts the negative influence which such materials have on changes in attitudes and behaviour, and the objective.  While a direct link between obscenity and harm to society may be difficult to establish, it is reasonable to presume that exposure to images bears a causal relationship to changes in attitudes and beliefs.”.

 

5.1.2          In response to the contention that the new proposed section 16(2) in clause 19 of the Amendment Bill imposes prior restraint on the freedom of expression, we submit that it is not a prior restraint on freedom of expression in general but only on the publication and distribution of specific and defined expressions which are either illegal and outside constitutional protection, or are potentially disturbing and harmful to children and to society.  Section 16(2) only minimally impairs freedom of expression that is said to enjoy constitutional protection (i.e. sexual conduct). 

 

5.1.3          Although “sexual conduct” is not excluded “from the ambit of freedom of expression under the Constitution” (i.e. section 16(2) of the Constitution, it could just as well be argued that child pornography is also not excluded.  In order to align the Amendment Bill more effectively with its objects and with the Constitution, we propose that the word “explicit” could be inserted before “sexual conduct” in the proposed new section 16(2)(a) of the Amendment Bill. Alternatively, the reference to “sexual conduct” in the proposed section 16(2) could be amended to reflect the current Act: explicit sexual conduct which violates or shows disrespect for the right to human dignity of any person or which degrades a person or which constitutes incitement to cause harm.” We also propose that the words “or amounting to—“ which precedes the new proposed section 16(2)(a) could be deleted in order to address the concern raised by Adv Jamie in paragraph 38 of his legal opinion.

 

5.1.4          In terms of Adv Jamie’s discussion relating to new proposed section 16(2)(d) in clause 19 of the Amendment Bill [see Adv Jamie’s discussion in paragraph 40.5(b)], the reference to “advocacy of hatred based on any identifiable group characteristic and that constitutes incitement to cause harm” extends broader than section 16(2)(c) of the Constitution.  We note Adv Jamie’s comment that there is sufficient Constitutional Court and other authority to support the contention that it is a ground worthy of protection and that the new proposed section 16(2)(d) in clause 19 of the Amendment Bill is likely to pass a limitations enquiry in terms of section 36 of the Constitution.

 

5.1.5     In our opinion, Adv Jamie’s reference to the composition of the Board in paragraph 40.6 of his legal opinion is without merit.  It is not clear why the “composition” of the Board makes the submission of publications “problematic”, especially as publications envisaged in the proposed section 16(2), which is currently section 17(4) of the Act, are being submitted and classified appropriately. To date, there has been no appeal against any decision with respect to a publication submitted in terms of section 17(4) of the Act.

 

5.1.6          We note Adv Jamie’s support for the new proposed section 16(4)(a) in clause 19 of the Amendment Bill (see paragraph 41 of his legal opinion) which related to publications which should be classified as “refused classification” if the publication contains visual presentations , descriptions or representations of or amounting to child pornography, propaganda for war or incitement to imminent violence, or the advocacy of hatred based on any identifiable group characteristic.

5.1.7          We note Adv Jamie’s support in reference to the new proposed section 16(4)(b) in clause 19 of the Amendment Bill, with the exception of the new proposed section 16(4)(b)(iii) in clause 19 of the Amendment Bill.  He confirms that the objective sought to be achieved by this section s constitutionally compliant (see paragraph 41.2(a) of his legal opinion).  With regard to Adv Jamie’s concern about the new proposed section 16(4)(b)(iii) being susceptible to challenge on the grounds of vagueness in that he has reservations in respect of “conduct or an act which is degrading of human beings”, we submit that in the matter of S V Chapman 1997 (3) SA 341 (SCA) 344 J  to 345 E the Court held that sexual violence in general rape in particular, constituted “a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim”.  Also, in the matter of R v Butler 1992 (1) SCR 452, the Court remarks that material which may be said to exploit sex in a “degrading or dehumanizing” manner “will necessarily fail the community standards test, not because it offends against morals but because it is perceived by public opinion to be harmful to society.”. It would thus seem that the Courts do recognize conduct which may be said to be “degrading of human beings”.

 

5.1.8     With regard to Adv Jamie’s reference to “explicit infliction of sexual or domestic violence” and his     comment on there not being definitions for the terms “sexual conduct” and “domestic violence”. 

These terms have not been defined in the Amendment Bill or in the current Act, due to society’s changing attitudes.  Therefore, these terms have been more specifically defined in the guidelines used for the classification of publications.   The current Act requires appropriate classification guidelines to be established in order to deal with these terms more specifically.

 

5.1.9        We support Adv Jamie’s proposal to include reference to “public interest” in the exception of bona fide documentary or a publication of scientific, literary or artistic merit as provided in the new proposed section 16(4)(b) and (c).   We submit that it would not be problematic for the words “or is on a matter of public interest” to be inserted in both paragraphs (c) and (d) of the new proposed section 16(4).

 

5.1.10    We support Adv Jamie’s contention in paragraph 42 of his legal opinion that the new proposed section 16(5) in clause 19 of the Amendment Bill appears to be constitutionally assailable.

 

5.1.11   We support Adv Jamie’s contention in paragraph 43 of his legal opinion that the new proposed section 16(6) in clause 19 of the Amendment Bill appears to be constitutionally assailable.

 

 5.2       Clause 21 which addresses the classification of films and games

                                                                                         

5.2.1          With regard to Adv Jamie’s statement in paragraph 46.2 that the definition of “film” has been amended to read “[T]he sound track associated with any exhibited illustration relating to a film as defined in the preceding paragraph”, seems to be incorrect.  The Amendment Bill proposes a definition for “film” which specifically excludes what is referred to in paragraph 46.2 of Adv Jamie’s definition of “film”.

 

5.2.2     It should be noted that Adv Jamie refers (in his paragraphs 4. and 48.4) to publications, when in fact, it should read “film or game” as the new proposed section 18 in clause 21 of the Amendment Bill only pertains to the classification of films and games.      

                                

5.2.2          We note and accept Adv Jamie’s support for the amendment to clause 23(3) of the current Act in terms of broadcasters who are subject to regulation by the Independent Communications Authority (“ICASA”).

 

5.2.3          In respect of the remaining aspects of clause 21 of the Amendment Bill, we are of the opinion that the comments discussed under clause 19 are of equal relevance to clause 21.

 

5.3               Clause 22 which makes provision for the display of classification decisions

 

5.3.1     In terms of Adv Jamie’s comments with regard to the display of classification decisions, we submit that an “exemption” is a classification decision, the only difference being that the age-restriction and consumer advice is imposed by the Board and not by a classification committee.  Products may be exempted from the classification process but not from the classification system.

 

5.4        Clause 29 which addresses prohibitions, offences and penalties on distribution and exhibition as well as possession of films, games and publication

 

5.4.1          The proposed section 24A

 

5.4.1.1  With regard to Adv Jamie’s contention that an individual is expected ex post facto to determine a classification that would have been made by a classification committee, we submit that the proposed section 24A(2)(c) refers to materials described in the “XX” category.  These are materials which are prohibited from distribution or public exhibition, though not from possession for personal and private use.  Society should be expected to know what materials are prohibited from distribution and public exhibition, just as the public is expected to know what conduct will constitute criminal acts or omissions. The purpose of preventing the distribution or public exhibition of such materials would be frustrated if the provision related only to materials already classified “XX” but allows the distribution and public exhibition of similar materials only because they have not been classified.

 

5.4.1.2  We note Adv Jamie’s concern with regard to the new proposed section 24A(4) in clause 29 of the Amendment Bill and we further propose that the word “explicit” be inserted before “sexual conduct” in order to align this section with the other proposed amendments and to be consistent in our reference to sexual conduct.

  

5.4.2          The proposed section 24B

 

We note Adv Jamie’s concern regarding the new proposed section 24B in clause 22 that section 24B(3) may be vulnerable to being found overbroad.  In this regard, we submit that, in our opinion, this is an “anti-grooming” provision and it should, necessarily, be much broader than the “XX” or “X18” categories.  Any depiction of sexual conduct, whether explicit or even implied, may be used for the purpose of grooming children into accepting intergenerational sex as normal and acceptable.

 

6.         Conclusion

 

            We have attempted to respond to each contention made by Adv Jamie in his legal opinion and we are of the opinion that he makes good argument for some definitions.  It is essential to note that, in terms of proposals we have made in this response to Adv Jamie’s legal opinion, we are left to the opinion and guidance from the Committee on whether or not these proposals should be incorporated into the Amendment Bill in its current form.