Issn 1727-3781 2007 volume 10 No 1 stop the press: why censorship has made headline news (again)

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ISSN 1727-3781

2007 VOLUME 10 No 1

L Mills*
People demand freedom of speech as a compensation for the freedom of thought which they seldom use.

Soren Kierkegaard (1813-1855)**

  1. Introduction

The recent publication of the proposed amendments1 to the Films and Publications Act2 has drawn sharp reaction from various media organisations. Associations such as the South African National Editors’ Forum (SANEF), the Media Institute of Southern Africa (MISA) and the Freedom of Expression Institute (FXI) have criticised the amendments as having the effect that –
…the media will be subjected to pre-publication censorship, probably forced to expunge large amounts of their news coverage from their pages or broadcasts and submit to procedures which will prevent papers from being distributed on a daily or weekly basis and result in broadcasters having to delay news broadcasts.3
Others have described the Bill as “part of a new trend in the gradual erosion of the freedom of speech”4 and “not only outrageous and unconstitutional, [but also] … unworkable".5 The Department of Home Affairs (the government department responsible for the Act) have defended the amendments by stressing that the issue was how best to protect children from sexual exploitation in the media and thus attempting to –
…protect children from potentially disturbing, harmful or age-inappropriate materials.6
As it is not the duty of the State alone to protect children, it is time for the media to acknowledge that it too has an obligation towards society and that the protection of children is –
…no less important than the right of the press to publish any content that may be regarded by them to be in demand by their consumers.7
Cabinet has, in turn, reiterated that –
…the government has no intention whatsoever to muzzle the media in any way and that this position will not change.8
It often has been said that the media is a key agent in society in the protection of freedom of expression and that it “must foster it”.9 This constitutional right, enshrined in section 16 of the Constitution,10 is formulated as follows:
(1) Everyone has the right to freedom of expression, which includes—

(a) freedom of the press and other media;

(b) freedom to receive or impart information or ideas;

(c) freedom of artistic creativity; and

(d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to—

(a) propaganda for war;

(b) incitement of imminent violence; or

(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.
Having regard to South Africa’s recent past of censorship, secrecy and intellectual repression, any suggestion that the government is trying to re-introduce draconian forms of censorship legislation must be vehemently opposed.11 It is, therefore, important and thus the purpose of this discussion, to ascertain why these proposed amendments have been described as “outrageous and unconstitutional”, whether it would cause a delay in publishing newspapers or broadcasting news reports or whether this is merely an overreaction by the various media institutions. After a brief synopsis of the history of censorship legislation in South Africa, this note will examine the classification process under the current Films and Publications Act. An analysis of some of the most controversial aspects of the Amendment Bill will follow, while paying particular attention to the response these have elicited from the media.

  1. Historical overview

A brief historical review of obscenity law and censorship in South Africa provides a contextual basis for a consideration of the current Films and Publications Act, its purpose and the present reaction to the amendment thereof.12 Censorship legislation in South Africa dates back to colonial Acts such as the Cape of Good Hope Obscene Publications Act 31 of 1892. This Act13 prohibited the importation of indecent or obscene publications as well as the transmission of such matter through the mail.14 The Act did not create any enforcement body or authority, but provided for a Resident Magistrate, upon receiving a complaint “upon oath”, to authorise any “constable or police officer to enter in the daytime” into any house, shop, room or “other place”, using force to break open doors if necessary, “to search for and seize” all indecent and obscene publications found “and to carry all the articles so seized before the Resident Magistrate”.15 Pre-Union cases established that the common-law crime of public indecency, defined as “conduct in public [which] of its very nature, must tend to the depravement of the morals of others,”16 may also exist in the publication of an indecent sketch.17
After Unification in 1910, the various colonial statutes were replaced by the Customs Management Act 9 of 1913. In 1931 the House of Assembly of the Union of South Africa enacted the Entertainments (Censorship) Act18 which established a “Board of Censors”, appointed by the Minister of the Interior, to examine –
…films and film advertisements intended for public exhibition in any place in the Union.19
The Act furthermore provided that the Board shall not approve any film which, –
…in its opinion, depicts any matter that prejudicially affects the safety of the State, or is calculated to disturb peace or good order, or prejudice the general welfare or be offensive to decency.20
The Customs Act 35 of 1944 also prohibited the importation of any indecent or obscene goods or on any other ground whatsoever objectionable21 and subjected these goods to forfeiture.
Except to the extent to which the Customs Act provided for control over the importation of “undesirable publications and objects”, there was no control over publications. To cure this lacuna, a public commission of enquiry22 was appointed in 1954 to –
…find ways and means of combating the evil of indecent, offensive or harmful literature.
Some of its recommendations included a Publications Board to register all publishers and booksellers, a single control system for imported and local publications and the suggestion that magazines should be sold only from official kiosks.23 It also recommended a legal definition of “undesirable” to embrace material seen as “indecent, offensive or harmful” by the “ordinary, civilised, decent, reasonable and responsible inhabitants of South Africa” and statutory control of court reporting.24 The Commission’s report also supported prior censorship in proposing that periodicals be registered, scrutinised before distribution and prohibited if necessary. While newspapers were exempted from these suggestions, their definition would be up to government.25
These proposals were incorporated in the Publications and Entertainments Bill, read for the first time in 1960, but, faced with strong protests, dropped. It was abandoned in favour of a Press Code and reintroduced, with amendments excluding the press, by the enactment of the Publications and Entertainment Act 26 of 1963.26 The Act established the Publications Control Board, consisting of nine members, and introduced a system of control over “undesirable” publications, objects, films and public entertainment.27
Apart from amendments mainly concerned with bringing publications within the scope of censorship laws, no new legislation was introduced until the enactment of the Publications Act 42 of 197428 which replaced the Publications Control Board with a Directorate of Publications. Under section 47 of the act, the category of “undesirable” films, publications, objects or public entertainments now covered a much broader category of material, such as items which were:

  • indecent or obscene or offensive to public morals;

  • blasphemous or offensive to the religious convictions or feelings of any section of the inhabitants of the Republic;

  • dangerous by bringing any section of the inhabitants of the Republic into ridicule or contempt;

  • harmful to the relations between any sections of the inhabitants of the Republic; or

  • prejudicial to the safety of the State, the general welfare or the peace and good order.

Following a long and bitter struggle against apartheid, the first democratically elected government of South Africa came into power in 1994. Just as previous successive governments had ensured that all laws dealing with films and publications reflected the aspirations of an apartheid-State, the new democratic Government immediately initiated a process to ensure that all laws henceforth would reflect – in form, substance and spirit – the values entrenched by the Constitution.29 Consequently, the Constitutional Court, in the matter of Case v Minister of Safety and Security; Curtis v Minister of Safety and Security,30 had to pronounce on the constitutionality of section 2(1) of the Indecent or Obscene Photographic Materials Act,31 paying particular attention to the right to privacy and the limitation thereof in context of the prohibition of possession of pornography and indeed found the provision to be inconsistent with the Constitution.32 Some members of the Bench, however, acknowledged the possibility of a reasonable limitation on certain freedoms in certain circumstances and distinguished this limitation from the restraints enforced by previous pieces of legislation:

My understanding is that this statement is subject to the qualification that the right referred to, as is the case with other chap 3 rights, is not necessarily exempt from limitation. That the limitation may extend to possession even in the privacy of one's home in certain circumstances is a possibility acknowledged by Didcott J in para [93]. The precise circumstances are not a matter we are called upon to delineate here and I agree that it is wise to refrain from attempting to do so in this matter. What is clear is that an intrusion into such privacy cannot, as was the case in the past, be permissible unless it can be adequately justified on the basis of section 33(1) of the Constitution.33

Madala j furthermore aptly summarised the purpose of the (still to be enacted) Films and Publications Act in the following words:
While I agree that one's right to privacy should be respected, this, in my view, does not mean that all pornographic or similar material warrants protection under that right or even under the wing of free expression. There seems to be considerable consensus, both here and abroad, that some forms of pornography and obscene matter should not enjoy constitutional protection. In my view, children should not be exposed to or participate in the production of pornography, and that, therefore, possession by them and exposure to pornographic material should be prohibited. However, possession by adults, in the privacy of their homes for personal viewing of sexually explicit erotica, portraying nudity, sexual interaction between consenting adults, without aggression, force, violence or abuse, may not be prohibited, for the benefit of those who derive pleasure in viewing such material.

The court found that the provision of section 2(1) was unjustly overbroad in that it introduced vague concepts such as licentiousness and lust, discriminated against same-sex activities and made no distinction between regulating what is offensive and prohibiting what is harmful.34

  1. The Films and Publications Act 65 of 1996

The Films and Publications Act came into operation on 16 January 1998. It introduced a dramatic shift from censorship to classification: whereas censorship involves the regulation of what others may see or read, classification involves the regulation of material by means of the imposition of age restrictions and the provision of information on the basis of which choices about what to see or read may be made. Adult South Africans would no longer be told what they may see or read, or what they may allow their children to see or read by “faceless bureaucrats in grey suits".35 The proposed amendments were welcomed by both the government and political parties and unanimously adopted by all members of Parliament.36

The Act seeks to regulate the distribution, exhibition and possession of films, interactive computer games and publications with due regard to the protection of children from sexual exploitation and degradation, and from exposure to potentially disturbing, harmful and age-inappropriate materials.37 It receives its mandate from section 28 of the Constitution in that children should be protected form abuse, degradation, and maltreatment. It consequently intends to strike a reasonable balance between the right of a child to be protected against exploitation and harm and other fundamental freedoms and rights, such as the freedom of expression, enshrined in the Constitution. The Act is distinguishable from previous pieces of censorship legislation in that it limits its application to issues of sexuality, violence and religion and applies, in so far as children are concerned, generally to disturbing or harmful materials. In so far as sexuality and violence are concerned, the basis of proscription, in the main, is abuse or harm.38

  1. The current classification process in South Africa

Whereas the Films and Publications Act, and consequently the Film and Publication Board, seeks to regulate the distribution and exhibition of films, interactive video games and certain publications, the Broadcasting Complaints Commission of South Africa (the BCCSA) seeks to ensure adherence to its Code from the members of the National Association of Broadcasters in South Africa.39 The Press Ombudsman, the self-regulatory body of the South African print media, in turn provides an independent complaint mechanism which mediates, settles and adjudicates complaints in accordance with a Code and Procedure accepted by the founding bodies.40

The distribution, exhibition and possession of films, interactive games and publications are regulated by means of classification, the imposition of age restrictions and the giving of consumer information about the content of films, games and publications, thus equipping parents and care-givers to make informed viewing, gaming and reading choices for the children in their care. In terms of section 31(3) of the Films and Publications Act, the Board is required to publish guidelines to be used to determine what is disturbing, harmful and threatening to children and to advise the viewing public about such images and scenes. During the classification process the film, interactive game or publication is examined against this set of guidelines by a committee consisting of at least three examiners (appointed for their experience, knowledge and qualifications in disciplines relevant to films, games and publications).

Films are classified into two categories, namely restricted (X18)41 — which may only be distributed to adults by the holders of licences to conduct business of adult premises and only from within such licensed premises — and unrestricted — which include age-restricted films but which may be distributed by any distributor registered with the Board as such. Films which are classified XX, judged within context to contain scenes of:

i) bestiality, incest or rape;

ii) 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;

iii) the explicit infliction of extreme violence or the explicit effects of extreme violence which constitutes incitement to cause harm;42

iv) or advocates hatred that is based on race, ethnicity, gender or religion and constitutes incitement to cause harm43

may not be distributed or broadcasted.44 Furthermore, in terms of section 29(2), a person shall be guilty of an offence if he/she –
…knowingly broadcasts, exhibits in public or distributes a film which, judged within context —
(a) amounts to propaganda for war;

(b) incites to imminent violence; or

(c) advocates hatred that is based on race, ethnicity, gender or religion, and which constitutes incitement to cause harm.45

A person who is or is deemed to be the holder of a broadcasting licence in terms of the Independent Broadcasting Authority Act46 and who is subject to section 56(1) or (2) of that Act, shall be exempt from the duty to apply for a classification of a film and shall in relation to the exhibition of a film not be subject to any classification made by the Board or any condition imposed in relation to the exhibition of the film by the Board.47

Any person who intends to publish, distribute or exhibit in public any publication containing a visual presentation or description of:

  1. explicit violent sexual conduct;

  2. bestiality, incest or rape;

  3. 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; or

  4. the explicit infliction of or explicit effect of extreme violence which constitutes incitement to cause harm;48

  5. it contains a visual presentation, simulated or real, of explicit sexual conduct which, in the case of sexual intercourse, includes an explicit visual presentation of genitals;49

  6. it describes predominantly and explicitly any or all of the above-mentioned acts;50

must submit such publication for classification prior to its distribution or exhibition.51 As in the case of films, a person shall be guilty of an offence if he/she –

…knowingly broadcasts or distributes a publication which, judged within context —

(a) amounts to propaganda for war;

(b) incites to imminent violence; or

(c) advocates hatred that is based on race, ethnicity, gender or religion, and which constitutes incitement to cause harm.”52

The Board does not, however, as is the case with films, classify all publications, but only classifies publications which do not fall into the XX or X18 category, upon the receipt of a complaint by any member of the public.53 Should the classification committee deem it necessary to protect children from disturbing or harmful materials contained in the publication, it shall determine that the publication only be distributed to persons of, or above, a specified age and may impose the condition that it only be distributed in a sealed and opaque wrapper which bears a distinct notice of the specified age restriction.54

The Act does not at present apply to any newspapers published, or posters of a newspaper issued as an advertisement of any newspaper, by a publisher who is a member of the Newspaper Press Union of South Africa.55

  1. The implications of the Films and Publications Amendment Bill, B27—200656

The most controversial provisions of the Amendment Bill is that of clauses 13 and 14 which intends to replace section 16 and repeal section 17 of the current Act. Section 16(1) of the Act will in future still provide for the application by any member of the public requesting that a publication be classified in terms of this section. Section 16(2), shall, however, stipulate that –
[a]ny person who creates, produces, publishes or advertises for distribution or exhibition in the Republic any publication that contains visual presentations, descriptions or representation of or amounting to —
(a) sexual conduct;

(b) propaganda for war;

(c) incitement to imminent violence;

(d) the advocacy of hatred based on any identifiable group characteristic,

shall submit in the prescribed manner such publication for examination and classification to the classification office before such publication is distributed, exhibited, offered or advertised for distribution or exhibition.
Such a publication so submitted shall then be classified by a classification committee, consisting of at least three classifiers.57 Any publication referred to a classification committee may be classified:

(a) as a ‘refused classification’ if the publication contains [a] visual presentation, description or representation of –

(i) child abuse,58 propaganda for war or incitement to imminent violence; or

(ii) the advocacy of hatred based on any identifiable group characteristic, unless, judged within context, the publication is a bona fide documentary or is a publication of scientific and literary merit on a matter of public interest.59

It may also be classified as XX60 or X1861 unless –
…judged within context, the publication is a bona fide documentary or is a publication of scientific, literary or artistic merit, in which event the publication shall be classified with reference to the guidelines relating to the protection of children from exposure to disturbing, harmful and age-inappropriate materials.
As is presently the case under the Act, a classification committee furthermore also may impose certain appropriate age-restrictions and conditions it may deem necessary to protect children from disturbing or harmful materials contained in the publication.62
Another controversial aspect is that section 22(3) of the Act, which currently exempts newspapers published by a publisher who is a member of the Newspaper Press Union of South Africa, from the Act, will also be deleted by the proposed amendments.63 This will, practically speaking, mean that should any newspaper, magazine or any publisher in future intend to publish a publication64 which contains visual presentations, descriptions or representation of or amounting to sexual conduct, that is:
(i) male genitals in a state of arousal or stimulation;

(ii) the undue display of genitals or of the anal region;

(iii) masturbation;

(iv) bestiality;

(v) sexual intercourse, whether real or simulated, including anal sexual intercourse;

(vi) sexual contact involving the direct or indirect fondling or touching of the intimate parts of a body, including the breasts, with or without any object;

(vii) the penetration of a vagina or anus with any object;

(viii) oral genital contact; or

(ix) oral anal contact.65
Such publication should first be submitted to the Board for classification.
Jane Duncan, the Executive Director of the Freedom of Expression Institute, has in reaction commented that it appears that the provision would “consider all expressions of a sexual nature as suspect, requiring state scrutiny” and that the Bill –
…harks back to the Publications Act of 1974, which banned publications if they were considered to be indecent, obscene or offensive to public morals.66
To answer her question as to “[w]hat is meant by ‘sexual conduct’”, the Act is, as can be seen from the above definition, rather clear. The current definition by the Act of “sexual conduct”, which has not been altered by the amendments, is quite plain on what it considers as such and thus it cannot be said that the amendments are a step backwards towards vague and non-descriptive terms such as indecency and obscenity.67 Her further concern of whether or not it would mean that should an agency produce an advertisement of two people kissing, they would need to submit this for classification, as a result undoubtedly can be answered in the negative.
Rather, the question should be asked as to why a newspaper would need to publish any article describing any of the above acts defined as sexual conduct and should the need indeed arise, why newspapers in particular could be exempted from the classification process, bearing in mind that the Act presently requires all publications, barring newspapers, containing visual presentations of explicit sexual conduct “which, in the case of sexual intercourse, includes an explicit visual presentation of genitals” to be submitted for publication. Newspaper classified advertisements are often –
…packed with the most descriptive, lurid, suggestive and blatant touting for prostitution imaginable. All of which leaves absolutely nothing to the imagination.68
Tabloid publications such as “Die Son/The Sun” and “The Daily Voice” are known for their detailed and often sordid descriptions of sexual activities and the growing demand for sex as a commodity is only reflected by these publications.69 As children have unrestricted access to this material, at affordable prices and often en route to school, the question begs to be answered as to why the protection of children should be less important than the right of the press to publish descriptions of sexual conduct. The State has a duty to protect the dignity of children in the same manner as it has to protect the dignity and freedoms of all other persons in this country. How can the government’s attempts at protecting children from, what is in essence a form of child abuse70 and a denial of their dignity,71 then be classed as censorship, all in the name of freedom of speech?72 Why should the media, and in particular the printed press, be excluded from the obligation to protect children from harmful and age-inappropriate material? Section 22(3) provides, in any event, that only newspapers published by a publisher who is a member of the Newspaper Press Union of South Africa, a Union which no longer exists, are exempted.73 This would, therefore, mean also that such newspapers also are not subject to the anti-child pornography provisions of the Act, such as section 27 prohibiting the creation, production, importation or possession of child pornography. Should we allow this exemption to continue, the State indeed will be failing its children and neglecting adherence to their plight, made in a statement released by the Deputy-Minister of Home Affairs at the launch of the Child Pornography Hotline in 2004:
We, the children of South Africa, in thanking Government for this important initiative, expect that all necessary measures will be taken to stop our abuse and exploitation and assure us of that childhood guaranteed to us by the Constitution.
More criticism was raised against the provisions prescribing pre-publication submission of material containing “propaganda for war” or “incitement to imminent violence” and the fact that it “leaves out artistic merit as a ground for exemption”.74 These provisions have also been described as containing “hazy and ill-defined concepts” which will –
…not only cause confusion among media organisations, [but] … may also induce the media to avoid these subjects in order to escape prosecution.75
As the Constitution clearly does not extend the right to freedom of expression to this type of material76 and it is currently an offence under the Act to exhibit or distribute a film77 or broadcast or distribute a publication containing such,78 it is unclear as to why this objection is raised.
It is, however, submitted that the criticism against the “unconstitutional reformulation of the hate speech”79 is justified as the Constitution only prohibits
…advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm80
and does not proscribe “the advocacy of hatred based on any identifiable group characteristic” which the Bill seeks to do in section 16(2)(d) and section 16(4)(a)(ii).81 It is submitted that the provision broadens the scope of grounds beyond the categories of expression listed by section 16(2) of the Constitution. As the Constitutional Court per Langa dcj (as he then was) has already affirmed that –
[w]here the State extends the scope of regulation beyond expression envisaged in section 16(2), it encroaches on the terrain of protected expression and can do so only if such regulation meets the justification criteria in section 36(1) of the Constitution,82
it can be predicted fairly safely that this provision of the Bill will not pass any constitutional scrutiny. In Islamic Unity Convention v Independent Broadcasting Authority83 a similar provision from the Code of Conduct for Broadcasting Services, which provided that “(b)roadcasting licensees shall … not broadcast any material which is … likely to prejudice … relations between sections of the population”, was found to be –
…so widely phrased and so far-reaching that it would be difficult to know beforehand what is really prohibited or permitted.84
The court also placed emphasis on the fact that the prohibition did not require the material to have any potential to cause harm85 and that it had not been shown that –
…the very real need to protect dignity, equality and the development of national unity could not be served adequately by the enactment of a provision which [was] appropriately tailored and more narrowly focused.86
The relevant portion of the clause from the Code therefore was found impermissibly to limit the right to freedom of expression and was accordingly unconstitutional.87 As section 16(2)(d) of the Films and Publications Amendment Bill similarly does not require any incitement to cause harm and does not limit the scope to advocacy based on race, ethnicity, gender, or religion it is envisaged that this provision will be found to be unconstitutional. It is submitted that it too could be tailored appropriately and focussed more narrowly in order to achieve its purpose.
However, at this point it also has to be noted that the amendments, as they are drafted currently, will not prohibit the distribution and exhibition of publications or films containing descriptions or scenes of bestiality as schedules 1 and 6 of the current Act is repealed by clause 33 of the Bill. It is not clear whether this is a deliberate move to decriminalise the distribution and exhibition of bestiality or whether it is merely an oversight which occurred during the drafting process.
One last amendment to the Act which deserves to be considered is that of the amendment to chapter 5 of the Act, namely the right to appear before and to appeal to the Review Board and the Supreme Court.88 In terms of clause 17 of the Bill, section 19 of the Act will be deleted. This would mean that any person who has lodged a complaint with the Board that any publication be referred to a classification committee for a decision and classification or who applied for a classification of a film, or the reclassification of a film or publication, or for a permit, exemption or licence, loses the right –
…to appear in person before the executive committee, classification committee or Review Board, or to be represented or assisted by a legal practitioner or by any other person of his or her choice, to adduce oral or written evidence and, subject to a reasonable time-limit imposed by the chairperson concerned, to address that committee or board, in the language of his or her choice.
This right to appeal is, however, addressed by the proposed amendment to section 20 of the Act, which in future will provide for the right of such a person to –
…appeal such a decision or finding of the Board to the Appeal Board89 in the prescribed manner.
Absent from this provision, however, is the right to be represented by a legal practitioner or any other person. The Appeal Board may, notwithstanding, still prescribe the manner in which an appeal shall be heard and may, therefore, allow such representation as section 20(2)(c) of the Act will not be amended.90
Section 21 of the Act, which currently provides for an appeal to the High Court will however, in terms of the amendments, be deleted. It should be borne in mind that under section 33 of the Constitution and section 6 of the Promotion of Administrative Justice Act 3 of 2000 judicial review will always be available as a remedy to a person who feels aggrieved by a decision taken by a State organ such as the Film and Publication Board. What is important though, is to realise that under this reviewing process, the High Court only will be able to review whether the procedures employed during the decision making process was correct. This means that the court’s power to hear the merits of the case and thus to –
…confirm the decision appealed against or … set that decision aside, and give such decision, make such classification and impose such conditions as should in its view have been given, made or imposed91
will be removed and in future will rest with the Appeal Board.92 The High Court will only be able to direct the Board to give reasons (if reasons were not given) or set aside the decision and refer it back to the Board, with or without directions, and only in exceptional circumstances be able to substitute or vary the original decision.93

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