THE SOWETAN AND PORNOGRAPHY LAWS IN SOUTH AFRICA

The only people who dispute any connection between smoking and lung cancer are people in the tobacco industry. The only people who dispute any connection between violent movies and anti-social behaviour, especially among children, are those in the entertainment industry. And the only people who dispute any connection between disturbing content in the media and the encouragement of a morally-corrupt culture are those in the media industry. That is far from being more of an opinion than the truth! The decision by The Sowetan to publish a story, with images of sexual conduct involving two police officers, confirms a chilling fact: that many newspaper publishers and broadcasters do not appreciate the response of Parliament to its concerns about the emotional and psychological well-being of children in particular and society in general in passing certain laws, especially the Films and Publications Act. An alien visiting earth would be forgiven for believing that South Africa has a very high crime rate because South Africans either hate people or have such contempt for them that their lives are of little value. While no single factor can explain the not-so-gradual but visible sinking of the proudly South African society into a morass of violent depravity, the mass media, and especially TV and movies, cannot avoid a larger share of the blame. The Sowetan, like etv advertising the accessing of pornography and explicit sex images through cell phones, pays no respect to laws which prohibit the distribution of films, games or publications containing depictions or descriptions of explicit sexual conduct to persons under the age of 18 years. The Films and Publications Act, the Criminal Law (Sexual Offences and Related Matters) Amendment Act and the Childrens Act are all part of Parliaments response to section 28 of the Constitution the so-called Bill of Childrens Rights so-called because it should be seen, not as a Bill of Childrens Rights but as Bill of Societys Duties, Obligations and Responsibilities Towards Children! The question which newspaper publishers and broadcasters seem to have no answer to is: does the Films and Publications Act (Act) apply to the media, and broadcasters? Answering this question by simply referring to the Act will not allow for a proper appreciation and understanding of the concerns of Parliament with regard to the safety, security and well-being of society and especially children. A reference to the debates in Parliament when the Act was introduced as a Bill in 1996, (Col 4107 of the Third Session of Parliament from 28 August to 12 September 1996 in Hansard), as well as the debates when the first amendment was introduced in 1999, (Col 2886 of Hansard of 17 to 19 March, 1999), gives a clearer idea of the intentions of Parliament in passing the Act.

In introducing the Films and Publications Bill, the then Deputy Minister of Home Affairs, the Hon Lindiwe Sisulu, MP, pointed out that the two poles of opposition to the Bill the outcry against censorship.....and an outrage against pornography were not correct. The Bill.....is an honest endeavour to portray the balance of values inherent in the people of this country. All that the Bill seeks to do is to provide for the necessary framework to management and information which is required to make informed decisions by adults for themselves and for their children.....What South Africa needs is a new Act which, while recognising the freedom of choice of adults, would protect children, and would limit this freedom when harm is likely to follow.....particularly in the case of children. We would also need, I hope, to pass legislation against sexually explicit material which degrades women and incites harm against them. During both the 1996 and 1999 debates in Parliament, the Films and Publications Act enjoyed multi-party support in recognition of the need to ensure legislative response to section 28 of the Constitution. But what is even more significant is that, during the debates, there was no reference to newspapers and broadcasters as being outside the source of potentially disturbing and harmful materials. The media and broadcasters were not seen as being exempted from the objectives and purposes of the Act but only from the regulatory authority of the Film and Publication Board for the simple reason that newspapers and broadcasters have their own regulatory authorities the Independent Communications Authority of South Africa as far as broadcasters are concerned, and the Press Ombudsman for newspapers. And these regulatory authorities are expected to respond to the concerns of Parliament about the potential harm of certain media and entertainment content by ensuring that their codes of conduct are consistent with measures to protect children from the risk of harm. The Act sets out its objects in simple terms: .....to regulate the creation, production, possession and distribution of films, games and certain publications to(a) provide consumer advice to enable adults to make informed viewing, reading and gaming choices, both for themselves and for children in their care; (b)protect children from exposure to disturbing and harmful materials and from premature exposure to adult experiences; and (c) make use of children in, and the exposure of children to, pornography punishable Is there any doubt that The Sowetan, in publishing the article and images in question, has shown no respect for the objectives (b) and (c) of the Act? The fact that the procedures and processes involved in the classification and rating of films and publications, in almost all

jurisdictions, does not allow for prior restraint, by default, does not mean that newspapers are exempt from those provisions of the Act aimed at the protection of children in particular and society in general from the potential risk of harm from disturbing and degrading content. The right to freedom of expression is, arguably, one of the more misunderstood and abused constitutional rights, despite being the subject of limitations in several national and international judicial decisions. As someone once observed, every writer, film maker, broadcaster and publisher is a censor: every newspaper editor, cinema manager and broadcaster censors news and drama in different ways for different purposes. And the public applies its own censorship. Censorship is unavoidable except where it concerns profits! Nowhere is freedom of expression absolute and the limitations allowed by the Act are aimed, mainly, at the protection of children from media and entertainment-content that may be harmful to their normal development. Article 10 of the European Convention on Human Rights, for instance, guarantees the right to freedom of expression but also provides that the exercise of this right may be subject to certain limitations, by national governments, for very specific reasons, including the protection of health or morals and the prevention of crime. Section 36 of the Constitution of the Republic of South Africa also provides for limitations.....to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom... The Films and Publications Act provides guidelines aimed at the proper protection of children from the risk of harm. Newspapers and broadcasters who see the Act as applicable only to films, video games and certain publications under the regulatory authority of the Board are misinterpreting the Act. The focus of the Films and Publications Act is on the protection of children from potentially disturbing and harmful content regardless of the source. The Act clearly confirms the distinction between limitations and restrictions on freedom of expression imposed by a government to serve its own narrow political ends and those imposed in the interests of society, in general, and children in particular. Section 3(1) of the Tobacco Act prohibits the advertising of any prescribed tobacco product. Newspapers and broadcasters do, in fact, comply with section 3(1). Why do newspapers and broadcasters not comply with those provisions of the Films and Publications Act which are aimed at the protection of the dignity of human beings? (I have yet to hear of any newspaper complaining of its press freedom and its right to freedom of expression related to the prohibition on the advertising of tobacco products!) Perhaps newspapers and broadcasters do not understand that complying with the Act is not an acceptance of the regulatory authority of the Film and Publication Board.

If the fact that newspapers and broadcasters are not exempt from measures to protect children but only from the regulatory authority of the Film and Publication Board is still not clear, one should examine the relevant sections within the context of the objects of the Films and Publications Act. Section 18(6) of the Act provides that a broadcaster who is subject to regulation by the Independent Communications Authority of South Africa shall, for the purposes of broadcasting, be exempt from the duty to apply for classification of a film or game and, subject to section 24A (2) and (3), shall, in relation to a film or game, not be subject to any classification or condition made by the Board in relation to that film or game. All that section 18(6) does is to exempt broadcasters under the regulatory authority of Independent Communications Authority of South Africa from applying to the Film and Publication Board, for the classification of a film or game. It is not an exemption from the classification of films and games but from classification by the Film and Publication Board since broadcasters have their own regulators of content. In so far as newspapers are concerned, section 16(1) of the Films and Publications Act provides that only publications outside the regulatory authority of a body recognised by the Press Ombudsman may be the subject of a request for classification by the Film and Publication Board. Like broadcasters, this is recognition of the fact that newspapers are subject to content-regulation by an authority outside the Film and Publication Board and not that newspapers are exempt from contentregulation. To meet the requirements to protect children from exposure to potentially disturbing and harmful content, a newspaper publisher should interpret section 16(2) of the Films and Publications Act as meaning that any content which(i) violates or shows disrespect for the right to human dignity of any person; (ii) (iii) (b) (c) degrades a person; or constitutes incitement to cause harm; advocates propaganda for war; incites violence; or

(d) advocates hatred based on any identifiable group characteristic and that constitutes incitement to cause harm should be subject to regulation by its own authority.

Iyavar Chetty