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



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bona fide purposes will be served by such an exemption.” As the Act thus did allow for researchers of child pornography to be exempted from prosecution, the court concluded that the nature and extent of the limitation was not severe. It was thus reasonable and justifiable for the rights of researchers and film-makers in relation to possession and importation of child pornography to be limited by s 27(1), read with s 22 of the Act. The court furthermore found that s 27(1) constitutes a reasonable and justifiable limitation on the right to freedom of expression and that, since many of the resultant acts of abuse against children, such as downloading child pornography from the Internet, take place in private, and the reasonable risk of harm to children is thus likely to materialise in private, some intrusion by the law into the private domain was justified. The limitation of the right to privacy was consequently also justifiable and the applicant’s appeal was dismissed.

39 More information on the BCCSA is available on their website at http://www.bccsa.co.za.

40 More information on the Press Ombudsman is available on their website at http://www.ombudsman.org.za. The Advertising Standards Authority of South Africa (ASA), another self-regulatory body set up and paid for by the marketing communication industry, also has a Code of Advertising Practice which aims to “protect the consumer, and to ensure professionalism among advertisers". More information on the ASA is available at their website at http://www.asasa.org.za.

41 These are films which, in terms of sch 7, contain “a scene or scenes, simulated or real, judged within context, of explicit sexual conduct which, in the case of sexual intercourse, includes an explicit visual presentation of genitals".

42 In terms of sch 6 of the Act. In terms of sch 9 the XX or X18 classification shall not be applicable to a bona fide scientific, documentary, dramatic or an artistic film or any part of a film which, judged within context, is of such a nature.

43 In terms of sch 10(1) of the Act. In terms of sch 10(2) a film shall not be classified as XX should it be “(a) a bona fide scientific, documentary, artistic, dramatic, literary or religious film or publication, or any part thereof which, judged within context, is of such a nature; (b) a film or publication which amounts to a bona fide discussion, argument or opinion on a matter pertaining to religion, belief or conscience; or (c) a film or publication which amounts to a bona fide discussion, argument or opinion on a matter of public interest”.

44 In terms of s 26(1)(aA) of the Act. Films or publications deemed to contain scenes or descriptions of child pornography are not classified but merely classed as “refused to classify” and referred to the South African Police Service.

45 Compare to s 16(2) of the Constitution which also does not extend the right of freedom of expression to material which contain the above-mentioned. Also see s 16.3 of Appendix II of the Code of the BCCSA.

46 Independent Broadcasting Authority Act 153 of 1993.

47 S 23(3) of the Films and Publications Act.

48 Sch 1(b)–(e). Such a publication will then be classified as ‘XX’ and may not be distributed or advertised for distribution. It is submitted that practically speaking, the only reason why any person who intends to publish, distribute or exhibit such material, will submit it for classification, is that it may fall into the exemption clause provided by sch 10. In terms of sch 10(2) a publication shall not be classified as XX should it be “(a) a bona fide scientific, documentary, artistic, dramatic, literary or religious film or publication, or any part thereof which, judged within context, is of such a nature; (b) a film or publication which amounts to a bona fide discussion, argument or opinion on a matter pertaining to religion, belief or conscience; or (c) a film or publication which amounts to a bona fide discussion, argument or opinion on a matter of public interest".

49 Such a publication shall then be classified as ‘X18’ in terms of s 17(1)(a)(i)(bb) and may only be distributed to adults by the holders of licences to conduct business of adult premises and only from within such licensed premises. Once again the XX or X18 classification shall not be applied in respect of a bona fide scientific, documentary, literary or an artistic publication, or any part of a publication which, judged within context, is of such a nature (in terms of sch 5).

50 Sch 2.

51 S 17(4).

52 S 29(1) of the Act. Compare to s 16(2) of the Constitution which also does not extend the right of freedom of expression to material which contain the above-mentioned.

53 S 16.

54 S 17(1)(a)(ii) and sch 3 of the Act.

55 S 22(3).

56 The Bill also intends to amend the structure and composition of the Board, as well as the Review Board (see cl 2–12 of the Bill), but these amendments will not be discussed for the purposes of this article. It should also be noted that the Internet Service Provider Association of South Africa (ISPA) also has reacted to the amendments, commenting that the provisions, and in particular s 24C, targets the “wrong entities”, and is not technology-neutral. S 24C would potentially make ISPs responsible for Internet chat services which they do not actually run as ISPs rarely provide content themselves and rather facilitate connectivity. ISPA is therefore concerned about the requirement that “content should be submitted for classification prior to publishing it on the internet.” The Bill also places an obligation on ISPs to provide “all their subscribers” with filtering software. As child protection software is “somewhat inappropriate for the corporate market”, ISPA suggests that the obligation should rather be to provide customers with the ability to obtain the software. ISPA is, however, committed to discussion and consultation regarding all the policy issues surrounding the proposed amendments. See Booth 2006 http://www.ispa.co.za 9 Nov.

57 S 16(3).

58 Child abuse is defined by s 1 of the Bill as “the use of a child in the creation, making or production of child pornography or child abuse images or for sexual exploitation and includes exhibiting or showing images of sexual conduct to a child or exposing or encouraging a child to witness sexual conduct”.

59 S 16(4)(a).

60 Should the publication in terms of s 16(4)(b) contain “visual presentations or graphic descriptions or representations of — (i) explicit sexual conduct which violates or shows disrespect for the right to human dignity of any person; (ii) conduct or an act which is degrading of human beings; or (iii) conduct or an act which constitutes incitement to or encourages or promotes harmful behaviour".

61 Should the publication in terms of s 16(4)(c) contain “visual presentations or graphic descriptions or representations of — (i) explicit sexual conduct; (ii) the explicit infliction of sexual or domestic violence, or (iii) the explicit effects of extreme violence".

62 S 17(1)(a)(ii) and sch 3 of the Act, see above.

63 Cl 20(c) of the Bill.

64 Currently defined under the Act as “(a) any newspaper, book, periodical, pamphlet, poster or other printed matter; (b) any writing or typescript which has in any manner been duplicated; (c) any drawing, picture, illustration or painting; (d) any print, photograph, engraving or lithograph; (e) any record, magnetic tape, soundtrack, except a soundtrack associated with a film, or any other object in or on which sound has been recorded for reproduction; (f) computer software which is not a film; (g) the cover or packaging of a film; (h) any figure, carving, statue or model; and (i) any message or communication, including a visual presentation, placed on any distributed network including, but not confined to, the Internet”.

65 In terms of s 1 of the current Act.

66 Duncan 2006 Business Day http://www.businessday.co.za/ 16 Aug.

67 It should be noted that The Preamble of the Press Code of Professional Practice actually rather vaguely states that “[r]eports, photographs or sketches relative to matters involving indecency or obscenity shall be presented with due sensitivity towards the prevailing moral climate".

68 Moerdyk 2006 http://www.bizcommunity.com/ 20 Apr.

69 In response to the reaction by the media to the amendments, Mr I Chetty, Head of Legal Services of the Film and Publication Board wrote: “The response of some sections of the media to the proposed amendment to bring newspapers and broadcasters within the scope of the Films and Publications Act is not unrelated to the preservation of the ‘wealth-generating’ culture of newspapers and broadcasters. Newspaper publishers and broadcasters will not welcome anything that might limit their capacity to generate wealth from their businesses. But, of course, their objections would have to be couched in ‘freedom of expression’ terms! Newspaper publishers and broadcasters should accept that choices in the interests of the protection of children have to be made”, Chetty "Memorandum".

70 See the proposed definition of ‘child abuse’ in the Bill as including “exhibiting or showing images of sexual conduct to a child or exposing or encouraging a child to witness sexual conduct”.

71 See eg the comments made by the magistrate in the so-called “Santa Claus” case, where, in sentencing convicted paedophile, James McNeil, the magistrate described the pornographic images which police had found in McNeil’s possession as “repulsive and invasive of the dignity of the child”. Schroeder 2003 http://www.iol.co.za/ 5 Dec.

72 Compare further the remarks of Madala j in Case n 30 supra at par [105] that “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". The Film and Publication Board has also recently released a report on internet usage and the exposure of pornography to learners in South African schools, see Chetty and Basson 2007 http://www.fpb.gov.za/ 20 Apr, concluding that it is common for South African children to come into contact with pornography, and that in most cases this occurs within their immediate environment. A multi-stakeholder approach between parents, caregivers, teachers and other stakeholders is also proposed.

73 Thus it also can be argued that the “blanket exemption” no longer exists.

74 Duncan 2006 Business Day http://www.businessday.co.za/ 16 Aug.

75 IPI 2006 http://www.freemedia.at/ 11 Sep, letter to President Thabo Mbeki.

76 See s 16(2) of the Constitution discussed above.

77 See s 29(2) of the Act discussed above.

78 See s 29(1) of the Act discussed above. The Code of the BCCSA at par 16.3 also prohibits licensees from broadcasting such material. The Press Code of Professional Practice furthermore at 2.3 stipulates that “[t]he press has the right and indeed the duty to report and comment on all matters of public interest. This right and duty must, however, be balanced against the obligation not to promote racial hatred or discord in such a way as to create the likelihood of imminent violence.”

79 Duncan 2006 Business Day http://www.businessday.co.za/ 16 Aug; see also Smuts 2006 Sunday Times 36; Boyle 2006 Sunday Times 2; and the joint statement by SANEF 2006 http://www.sanef.org.za/ 12 Nov.

80 S 16(2)(c).

81 See also s 18(3)(a)(ii) which will prohibit films judged to contain the above-mentioned material. Compare the Code of the BCCSA which proscribes the broadcasting of material which, “judged within context, sanctions, promotes or glamorizes violence based on race, national or ethnic origin, colour, religion, gender, sexual orientation, age, or mental or physical disability”.

82 Islamic Unity Convention v Independent Broadcasting Authority 2002 (4) SA 294 (CC) (2002 (5) BCLR 433).

83 Supra.

84 At par [44].

85 At par [35]. In Freedom Front v South African Human Rights Commission 2003 (1) BCLR 1283 (SAHRC) the SAHRC held that “harm” could not be confined to physical harm but should be taken to include psychological and emotional harm.

86 At par [51].

87 At par [51].

88 Now the High Court of South Africa.

89 Any reference to the “Review Board” is to be substituted with the “Appeal Board” — see cl 5, 6; 8 and 34 of the Bill.

90 This section provides that “[t]he chairperson of the Review [Appeal] Board may determine the procedure to be followed.” A proposed new s 5A(b) also states that the “Appeal Board shall have such powers as are necessary to determine the procedures and forms for the submission of appeals and the procedures to be followed at the hearing of appeals submitted to it”.

91 As is currently the case under s 21(3) of the Act.

92 Under s 20(5) a “decision of the [Appeal] Board shall for the purposes of [the] Act be deemed to be a decision of the Board” whereas a similar provision conferring this power to the court, namely s 21(4) will be deleted.

93 S 8 of the Promotion of Administrative Justice Act.

94 Supra (fn 38) at par [65], [99] and [105].

95 Under s 17(1)(a)(i)(bb) of the Act discussed above.

96 See discussion above.
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