State law advisers have rubbished legal opinion received by parliament
suggesting that certain sections of the Films and Publications
Amendment Bill may be unconstitutional, writes Caiphus Kgosana on the City Press website.

The amendment bill seeks to regulate, among others, the publication, broadcasting and handling of materials containing traces of child pornography. It has come under fire from media groups, including the SA National Editors Forum (Sanef), which argue that the bill is unconstitutional as it effectively allows for pre-publication censorship.

Following their submission, aspects of the amendment bill requiring newspapers to present any material containing sexual conduct, propaganda for war or incitement of violence for pre publication examination by the Films and Publications Board, were later altered to exclude all newspapers belonging to the South African Newspapers Association (SANA).

But the National Council of Provinces ' select committee on social services, which is deliberating on the bill, went on to commission legal opinion to determine whether other aspects of the bill were indeed unconstitutional.

Advocate Ismail Jamie (SC), who was commissioned by the committee, said he found the proposed section requiring publications, excluding newspapers belonging to SANA, to present such material for pre-publication censorship problematic as it imposed "a prior restraint on freedom of expression" which he said could be unconstitutional.

In response to Jamie's submission in parliament yesterday, the office chief state law adviser said Jamie was confusing freedom of expression as contained in the constitution of South Africa with the American constitution's First Amendment which guarantees absolute and unqualified freedom of expression.

Advocate Mongameli Kweta, a senior state law adviser, said in this case, the limitation of freedom of expression was done to protect children from being exposed to child pornography and other forms of sexual exploitation.

"Freedom of expression is not being abolished, but will be regulated to protect the rights and interests of children," he said.

Click here to read the full report, posted on the City Press website.