Response to legal opinion prepared by Adv Ismail Jamie SC
(prepared by the
Department of Home Affairs and the Film and Publication Board)
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
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.