There is an outcry over the recent signing of the Films and Publications Amendment Bill by president Jacob Zuma.
The Freedom of Expression Institute (FXI) has slated the signing of the Act, saying it is a “great intrusion of the right to freedom of expression”.
However, the Presidency says it is a triumph in its aims to protect children from inappropriate content.
The amendment Bill was first introduced in 2006 by the Department of Home Affairs and caused uproar within the media industry. Internet and wireless service providers, along with media representatives, will be greatly impacted by provisions in the Act, aimed at cracking down on child pornography and exposure to violence through their channels and publications.
According to the Act, any publisher who wishes to distribute, broadcast and exhibit any film or game has to submit it to the Film and Publications Board (FPB) for approval.
The Amendment Act states that all content prior to publication, distribution or broadcast which contains sexual conduct; degrades a person; constitutes incitement to cause harm; advocates propaganda for war; or incites violence or advocates hatred, has to go through the FPB.
Failure to do this could result in a five-year prison sentence, a fine, or both. The only exceptions apply to newspapers recognised by the Press Ombudsman.
However, the Presidency says the laws mark a victory for children's rights as the FPB has been empowered to enforce stricter regulations and ensure compliance.
“The decision of the president has provided the FPB - and those involved in efforts aimed at protecting children against pornography and sexual abuse and exploitation - with the assurance that the rights of children to be children as articulated in section 28 of the Constitution remain paramount,” notes the Presidency.
The FXI says it is deeply disappointed by the president's decision and says the amended Act “fails dismally” to protect the right to freedom of expression.
“[The] FXI cannot condone this insidious erosion of private liberties under the banner of the protection of interests, whether they be the interests of children, religious interests or political affiliation. Any intrusion of individual rights must be measured very carefully against the guarantees embedded in the Constitution, which guarantees the Constitutional Court has already ruled should be jealously guarded,” comments the FXI.
Intrusive laws
The FXI says the most intrusive element of the Amendment Act is that, under the guise of the “protection of children's rights”, the legislature has introduced a system of pre-publication censorship and self-censorship, which offends the letter and spirit of the Constitution.
The amendments hold the owners and operators of all telecommunication channels targeted at and used by children responsible for the content created and distributed within those mediums.
The operators are required to ensure their services are not used to commit offences on children. It is now mandatory to display safety messages to children on advertisements for the services; provide mechanisms for children to report suspicious behaviour by any other user; and report any behaviour which can be considered an offence to the South African Police Service. Failure to do any of this is now a punishable offence under the Act.
The Act also allows for the establishment of a council, which will be made up of different stakeholders. It will consist of representatives from industry and the non-governmental sector, and will work to strengthen the board's accountability and adherence to corporate governance.
On deaf ears
The FXI says it previously made submissions to both to the National Assembly and National Council of Provinces in respect of the Bill. The body also requested that the president refrain from signing the Bill into law and that it be referred back to Parliament for reconsideration.
A legal opinion was commissioned by the president's office on certain of the issues raised by interested parties and the Bill was sent back to Parliament for reconsideration. According to the FXI, the Bill was only amended slightly, passed by Parliament and signed into law by the president.
“The regulation of publications should be focused on the effective and accurate handling of complaints and the imposition of clearly and narrowly defined offences with regard to certain material which is not protected under the Constitution,” the FXI notes.
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