The SA Parliament will in the coming week hold hearings on planned changes to the Film and Publications Act which have been widely condemned for introducing pre-publication censorship.  Among the organisations due to testify is the SA chapter of the Media Institute of Southern Africa.  In its submission, Misa(SA) says that the changes will render the media unfree and leave the constitution in tatters.

Misa (SA)'s submission to Parliament on suggested amendments to the Film & Publications Act:

At the outset we state emphatically that we are totally opposed to all forms of child pornography and associated conduct. We also state emphatically that though the stated purpose of the Bill is to combat child pornography and access by children and youth yo pornography, we believe the Bill relates to conduct far exceeding that purpose and beyond the current laws dealing with child pornography.

The SA Chapter of the Media Institute of Southern Africa is a civil society organisation which represents practitioners in the media and freedom of expression adherents in South Africa and Southern Africa. It sees its role as upholding and maintaining the fundamental freedom of expression and freedom of the media clauses in the South African Constitution and international protocols such as:

* Article 19 of the Universal Declaration of Human Rights;
* The African Union's freedom charter as defined in the Declaration of Principles on Freedom of Expression
in Africa by the African Commission on Human and Peoples' Rights;
* The Windhoek Declaration; and
* The European Convention on Human Rights.

All these declarations and the South African Constitution uphold the principle that freedom of expression and freedom of the media are fundamental in countries that adopt democracy. Indeed, these freedoms are regarded as the key to good governance and the health of a democratic society.

South Africa lays great store by this and its Constitution, regarded as among the finest in the world, stresses transparency in governance, consultation, open institutions and above all freedom of expression, freedom of the media and access to information in addition to other freedoms.

In reviewing the amendments to the Films and Publications Act of 1996, as amended, contained in the Films and Publications Amendment Bill 2006, we in Misa-SA find ourselves confronted by a number of features which we contend offend against the letter and spirit of the South African Constitution.

We are deeply concerned that the Bill contains proposals for a major departure from terms and conditions that have been agreed on between the government of the day and the media industry and applied for more than 40 years and which have been accepted and reinforced since 1994 with the aim of upholding freedom of expression and freedom of the media while enabling the Film and Publications Board to carry out its duties. We are shocked that now a fundamental change has been proposed without warning or prior consultation with the industry. We have no recollection that a major departure from long- established conditions and agreements has been embarked upon by the government without at least giving notice to the stakeholders who may be affected. Another cause for perturbation is the fact that the preamble to the Bill which purports to outline the purposes of the proposed amendments makes no reference to this fundamental change. This lack of consultation is all the more remarkable in view of the importance the Constitution accords the principle of freedom of expression and media freedom. The media is the only profession accorded this protection in the Constitution.

We refer to the proposal in the Bill that the exemptions granted the news media in 1961 from the provisions of censorship legislation that currently is titled the Films and Publications Act should be repealed. (The proposed repeal of sections 22 (3) and 23 (3) of the Act).

This will have the effect of subjecting vital operations of the print and broadcast news media to the control of the Films and Publications Control Board.

In view of the fact that the exemptions were granted by the government of the day in return for the media industry imposing self-regulation upon itself and the fact that the media industry has continued vigorously to carry out that function, the unilateral proposal to end that agreement by repealing the exemption without notice or consultation is a unilateral breach of what has become, in view of its long tenure, a
binding agreement.

Our view is that the proposal to remove the exemption enjoyed by the news media will have a seriously harmful effect on the news media and the public. It will destroy SA's reputation as the home of a free and independent media – one of the few in Africa — and could cause badly needed investors to stay away. The compounding effect will be for SA to become less and less free with the poor bearing the brunt of the
authoritarian rule that will emerge.

The media will not be free and the Constitution could very well be in tatters.

As free and independent journalists and adherents of media freedom and freedom of expression we are opposed to the proposal on the grounds that:

* It introduces pre-publication censorship which conflicts with the letter and spirit of the Constitution (Section 16);
* It will have a chilling effect on journalists gathering and conveying the news of the day because they will fear that some of the articles and reports that they are producing could be subject to pre-publication censorship;
* Or worse that their material could be published without reference to the requirements of the proposed Films and Publications Act and, specifically, the classification committees of the Films and Publications Boards, be deemed to be an offence and result in members of the staff being prosecuted and punished with imprisonment or a fine or both;
* It will impose enormous strains on the production and distribution processes involved in the publication of news material by both the print and broadcast media as well as the online media.

Because of the requirement that material has to be submitted to a classification panel, the finely-tuned deadline systems involved in the processing of news would be seriously disrupted and for newspapers, the production facilities and vast distribution networks endangered and thrown into disarray by deadlines not being met. The end result would be readers, viewers and listeners not receiving their news and information timeously, if at all.

* The constant potential for disruption in the news and publication production processes could lead to self- censorship by editors and journalists who could opt for either the omission or the removal of news and information from their newspapers or news services rather than trying to cope with the enormous logistical problems of gaining pre-publication classification, a situation which would have the effect of eroding the standards of news production and diminishing demand for news services. This, in turn, would affect sales and advertising revenues which will place especially newspaper companies at risk.

We need not stress that such conduct and the consequences we have outlined would offend against the media’s constitutional duty to uphold freedom of expression and freedom of media operations.

The reasons for the disruption recounted above is Section 16 (2) of the Bill with its extremely broadly defined categories of material that the provisions of the Act define as requiring classification:

“Any person who creates, produces, publishes or advertises for distribution or exhibition in the Republic any publication that contains visual presentations, descriptions or representations of or amounting to —

a) sexual conduct
b) propaganda for war
c) incitement to imminent violence; or
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''.

Sexual conduct: Newspapers reporting rape or indecent assault cases will have difficulty in reporting many of these cases because of the requirement on occasion for the detail having to be reported — thus creating a call for classification.

Propaganda for war: The news wires frequently contain material in the form of statements and declamations by heads of state or government officials which falls into this category — thus calling for classification. For example, the speeches made by former United States Secretary of State Colin Powell justifying America's reasons for invading Iraq and similar statement by US President George W Bush would qualify under
this heading.

Should an editor decide not to run that material and so not inform readers of what a country – in the instance quoted, the United States — was planning, or should she/he try to go through the Film and Publications Board’s classification process in the limited time available? The first course of action is unthinkable for a free media and the second, especially if the statement arrived late at night, impracticable.

Incitement to imminent violence: News media reporting on the Middle East, the Sudan and other world “hot spots’’ or perhaps closer to home at a local violent demonstration against poor service delivery by a city or town could require reporting of how community members and their leaders urged their followers on — which could be interpreted as incitement and thus requiring classification. Media conduct as outlined in the
preceding paragraph would also apply here.

Advocacy of hatred: This falls into the same category especially if a racial incident is involved — again a case for classification or the unthinkable withholding of news.

It is pointed out that in reporting this material which would probably conflict with the Act, the media is carrying out its role of informing the public and the public would be seriously misinformed if this information was withheld or delayed.

Mention has been made in Propaganda for War of the difficulties attaching to obtaining a classification. News deadlines for the news media, especially radio, TV, online services and daily papers are demanding and there is no indication in the Bill how the board and classification committees plan to deal with this. One cannot imagine classification committees being available for hours on end into the late hours to deal
with urgent applications for classification on late-breaking stories. We doubt that such availabil;ity by a classification board would be feasible.

But what happens when a Colin Powell-type speech is made at 6pm or later; will there be time for a classification committee to convene in time?

It is noted that in some sections of the Bill a time scale of 3 days is given as a reasonable time for hearings to be convened. Such a delay will be devastating for a media trying to adhere to its normal publication or broadcast deadlines.

And what happens when there are three, four or five stories a night? Indeed, the more one contemplates this aspect of the Bill's requirements, the more one recognises the impossibility for the classification committees to meet the demands of newspaper and broadcast deadlines — or the newspapers continuing to produce for the next day's deliveries while being harassed by classification requirements.

We draw attention to the SA Constitution's Clause 16 read with Clauses 7 (2) — The state must respect, protect, promote and fulfil the rights in the Bill of Rights — and 8 (1) — The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state — which lays down that all organs of state have a duty to ensure that freedom of the media is not interfered with or limited.

As journalists and media freedom adherents we regard Section 16 not merely as a right, but as a duty. If we did not regard it as our duty to inform the public to the maximum we would not be carrying out the Constitutional injunction that the media – as a component of the state — exercises the rights to freedom of the media and freedom of expression in the spirit of clauses 7 and 8.

Accordingly, we regard the limitations we have outlined as not only interfering with the practicalities of news gathering and dissemination but as forcing us to be in breach of our Constitutional obligations.

At the same time, we regard the conduct of the state servants engaged in the preparation of this Bill and its implementation as offending against clauses 7 and 8 in the Constitution in that they are failing to respect, protect and promote media freedom and thus failing to fulfil that right.

We have mentioned the manner in which categories of offending material have been broadened so that they cover a much wider range of material in a way that results in uncertainty and verges on the vague and embarrassing.

In the Objects of the Act — 2 — one of them is stated to be to protect children from potentially “disturbing, harmful or age- inappropriate materials''.

This is so broad and vague a requirement that it can include an extraordinary wide range of possible offences which could include political material.

We point out, too, that it appears that even the board is uncertain of what it means by this phraseology.

For in 9A (e) it states that the functions of the classification office shall be to establish in consultation with all relevant stakeholders, classification guidelines to be used in determining what is disturbing, harmful or age- inappropriate for children in films, interactive computer games. It seems strange that the proposed legislation has this requirement as something to be guarded against when the board is still seeking advice
as to how this requirement should be defined.

Miscellaneous observations

It is noted that the age of 18 is the threshold for youths to be able to see or possess material about sexual conduct without prosecution. It is uncertain why this age has been chosen when it is permissible for people to marry at the age of 16.

We note in 16 (2) that the “advocacy of hatred'' clause is much wider than that contained in the Constitution. We certainly do not believe the Films and Publications Board should arrogate to itself an offence of wider application than the Constitution calls for.

There is provision in the amendment for publications to seek exemption from the Bill, but this is not only of very limited ambit but unacceptable in principle to the media. The principle is that this would amount to the media applying for a licence to publish which the media would regard as offending against Clause 16 of the Constitution and every concept of freedom of the media that it subscribes to. In addition to the absolute distaste the media has for applying for a licence to publish there is the unacceptable situation where a licence can be withdrawn by the Films and Publications Board — which would constitute outright censorship.

However, it should be noted that the exemption applies only to certain elements of the Bill which renders the process valueless, apart from the licensing considerations involved.

The Bill also contains a provision, 16 (1) — Any person may request, in the prescribed manner, that a publication being distributed in the Republic be classified in terms of this section — which places the media into an “Aunt Sally’’ situation where broadcast, on-line and print media could be the victims of continual harassment resulting from real or imagined complaints being filed before the board for media classification.

Under the media’s self-regulatory system the public may complain and seek a hearing before the Press Ombudsman or the Broadcasting Complaints Commission but this generally requires that the complainant believes he or she has been harmed by a report or that it is a matter of general public interest.

There is also a specific limitation on frivolous complaints, a limitation which is seriously lacking in the Bill. We fear that Clause 16 (1) will open the floodgates to complaints against the media.

It should be pointed out that the Press Ombudsman and the Press Councils that existed before that body was established have never received any complaint against the print media involving the representation of child pornography or child abuse, even in the extremely broad context visualised in this legislation.

As far as we are aware the same situation applies to the broadcast media in regard to news services – and it also applies since 1994 to the other listed categories of offences. No charges related to the listed offences have been brought against the media since 1994.

This, of course, raises the question why the news media should now have their exemptions cancelled to enable them to be brought under the dictates of the board when there has been no record of these offences ever being perpetrated by them.

The record of the news media in this regard indeed has been exemplary. All have shown a general concern for the wellbeing of children and use their publications to combat child abuse in all its forms.

We point out that Section 24 B (2) introduces a new offence in our law, requiring anyone who knows of, suspects or has reason to suspect, the commission of the offence under section 24 B (1) to furnish the police with a full report of such knowledge or suspicion. It also potentially violates the constitutional rights of expression, association and movement, unjustifiably so. The subsection violates the general principle in
criminal law requiring intention, as well as a sufficient causal nexus between an act and the socially repugnant consequence.

The subsection embraces wider considerations than the existing common law offences of common purpose, conspiracy and defeating the ends of justice. We believe it could result in severe injustice for “innocent bystanders’’, who would be compelled to act as “spies'' on others.

This subsection is even more dangerous for journalists. It could result in journalists being forced to reveal confidential sources of information related to the commission of an offence. This, as journalists have steadfastly argued for years, could severely undermine the media and diminish its ability to develop news and information sources and gather news. In particular, it could deter sources from confiding in journalists
for fear of being exposed. This would have a “chilling effect'' on journalists. It would result in a perceived loss of independence for the media because the public may perceive the media as an investigative tool of the litigants instead of a neutral entity.

This undermines public confidence in the media and restricts journalists' newsgathering ability. It also has the potential to place burdens on the time and resources of media organizations, especially small, independent media organizations such as community enterprises, by forcing news staff to deal with court challenges, detracting from their prime function of gathering and disseminating news. It would have a chilling effect on the media, could lead to self-censorship and in certain circumstances place the well-being and safety of journalists and their sources at risk.

We claim that Section 24 B (5) would be unconstitutional in so far as it imposes a reverse onus on the accused. The subsection removes the element of intention vital to most criminal offences, the most analogous being that of statutory rape. A complete defence to a charge of statutory rape is that the accused was not aware that the complainant was younger than 16 years of age. It should be a defence to a charge
under subsection (4) that the accused reasonably believed that the person was older than 18 years.

The requirement in the present subsection imposes a duty impossible to fulfil by, for example, the user of an Internet “adults only'' anonymous chat website. What “reasonable steps'' could the remote user possibly take to “ascertain the age of that person beyond the assumption that other users are similarly adult''?

Should this Bill become law, it will render to a large extent the work of the Press Ombudsman and the Broadcasting Complaints Commission redundant and to some extent Icasa (Independent Communications Authority of SA). The interference with the duties of Icasa, we contend, would be a serious offence against the Constitution (Clause 192).

These mechanisms were set up to adjudicate on the ethical and professional content of news media and have in the last few years built up excellent reputations for responding to complaints from the public and conducting their duties diligently.

An unintended consequence of this legislation could be its impact on the assessment of South Africa's conduct of “good governance'' under the African Union's African Peer Review Mechanism, the process which South Africa has undergone in the last 10 months. The question that could be asked is how the APRM secretariat and the eminent persons group which oversees the APRM process, apart from the heads of
state, would regard pre-publication censorship and all the other defects in this legislation in relation to their assessment of South Africa's “good governance''. We suggest that they may regard the country as seriously wanting. We make this point with special reference to the media freedom clauses in South Africa’s Constitution, the African Union's freedom charter as defined in the Declaration of Principles on
Freedom of Expression in Africa by the African Commission on Human and Peoples' Rights and the Windhoek Declaration.

We wish to state that we are deeply disturbed that the industry was not consulted in advance of the legislation being prepared so that many of the contested elements in the Bill could have been eliminated or amended. We also express our concern that while the cabinet urged the Ministry of Home Affairs to consult with the SA National Editors’ Forum and other parties on the Bill, there has been no adequate consultation.

We request that the exemptions that are being removed to be restored and, in regard to print, be extended to all print media and not merely media members of Print Media SA. We believe the present exemption is too narrow and limiting. There are many other forms of media which should be exempted from classification. Indeed, in the spirit of the freedom of expression clauses in the Constitution, the widest latitude should be accorded the media in all its forms.

We believe that there may be some attempt to restore the exemptions in a limited manner and we express our earnest wish that should this occur, that the portfolio committee will see its way clear to reduce the limitations and to widen the exemptions to the fullest extent. That would be in accord with clause 7 in the Constitution which calls for the promotion of the Constitution and thus the promotion of freedom of expression.

These representations are to be read with those of the SA National Editors’ Forum, the Freedom of Expression Institute, Print Media South Africa, and the National Association of Broadcasters all of which includes material which we regard as relevant.

We also request note to be taken of the fact that our comments are supported by the Media Monitoring Group of Johannesburg.

We thank the portfolio committee for this opportunity to express our views.

Raymond Louw
SA Chapter of MISA

April 26 2007