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PRESENTATION ON THE FILMS AND
PUBLICATIONS AMENDMENT BILL
[B27-2006]
1
PRINT MEDIA SA TEAM

Trevor Ncube
 President, Print Media SA
 Chief Executive Officer, Mail & Guardian

Independent Newspapers represented by:



Tony Howard, CEO
Nazeem Howa, Group Operations Director
Johnnic Communications represented by:


Mike Robertson, CEO, Johncom Media Investments
Mondli Makhanya, Editor, Sunday Times

Francois Groepe, CEO, Media 24 Newspapers

Ingrid Louw
 Chief Executive Officer, Print Media SA
Ashoek Adhikari
 General Manager: Legal, Media 24
Janet MacKenzie
 Legal advisor to Print Media SA


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PRINT MEDIA SA
 Non-Profit Organisation
 Our members are –
 The Newspaper Association of South Africa (NASA)
 The Magazine Publishers Association of South Africa (MPASA)
 The Association of Independent Publishers (AIP)
 Represents the interests of a broad range of media publications –
 Daily, weekly and community newspapers
 Grassroots newspapers and magazines
 Consumer magazines
 Trade magazines
 Technical magazines
 Professional and specialist magazines
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PRINT MEDIA SA
 Represents the collective interests of its members in
 Negotiations with representatives in advertising, marketing,
printing and paper industries
 Campaigns that promote print media
 Industry awards
 Advancement of skills development and industry training
 Promotion of community and small commercial media initiatives
 Discussions and negotiations with Government on matters of
common interest
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THE FILMS AND PUBLICATIONS ACT 65
OF 1996
 Section 22 (3) of the current Act provides for an exemption from the
terms of the Act for newspapers published by publishers who are
members of the Newspaper Press Union of South Africa
 The Newspaper Press Union of South Africa has subsequently been
succeeded by the Newspaper Association of South Africa (NASA)
 The newspaper exemption has been in place since the promulgation
of the current Act in 1996 and prior to that the same exemption was
contained in the Publications Act, 1974
 In return for the exemption the print media industry agreed to adhere
to a system of self-regulation
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PRESS OMBUDSMAN – APPEALS PANEL
 To give effect to the requirement of self-regulation the Press
Ombudsman was established and has jurisdiction over 640
newspapers and magazines
 There is also a Press Appeals panel
 The print media industry has recently decided to add public
representatives to the Founding Bodies Committee of the Press
Ombudsman and the Appeal Panel and to change the organisation's
name to the Press Council of South Africa
 The system has a proven track record in dealing with contraventions
of the Press Code
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THE REMOVAL OF THE EXEMPTION

Clause 21(c) of the Bill proposes the removal of the exemption for
newspapers by deleting section 22(3) of the current Act in its
entirety

As a result of the withdrawal
newspapers will be subject to the classification procedures
and criteria detailed in section 16 of the Bill

any owner of a publication who fails to comply with section 16
will be subject to the criminal sanctions in sections 24A and
24B
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THE CLASSIFICATION PROVISIONS OF
THE BILL
 There are two ways in which newspapers, represented by NASA
and magazines, represented by MPASA will be subject to
classification Section 16 (1) which provides that any person may request that
a publication be classified
 Section 16 (2) which makes it mandatory for all publications
which
contain
visual
presentations,
descriptions
or
representations of the items listed in section 16(2)(a) to (d) to be
submitted in the prescribed manner for classification
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THE CLASSIFICATION PROVISIONS OF
THE BILL
 In terms of section 16(2) the following visual presentations, descriptions
or representations must be submitted for classification



sexual conduct
propaganda for war
incitement to imminent violence
the advocacy of hatred based
characteristic
on
any
identifiable
group
 The reference to "sexual conduct" will result in the print media having to
submit all news reports which contain descriptions of sexual assault,
indecent assault, child abuse, explicit infliction of sexual or domestic
violence and rape to the classification committee prior to publication
 The wide definition of "sexual conduct" will also mean that all articles on
sexual intercourse regardless as to whether they are educational,
artistic or literary works will also have to be submitted to the
classification committee
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THE CLASSIFICATION PROVISIONS OF
THE BILL
 The inclusion of "propaganda for war" or "incitement to imminent
violence" will mean that any news report, photograph or article dealing
with or depicting declarations of war, violent demonstrations, violent
incidents or civil unrest will have to be submitted to the classification
office for classification
 The reference to "the advocacy of hatred based on any identifiable
group characteristic" will mean that if a newspaper were to report on
some person advocating hatred and quote from what had been said this
will have to be submitted to the classification office for classification
 Reporting on public utterances of ordinary persons, religious leaders or
even terrorist organisations that could invoke hatred of a group of
people would also have to be submitted to the classification office for
classification
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THE CLASSIFICATION PROVISIONS OF
THE BILL
 Section 16(4) of the Bill details the classification criteria which will be
applicable to publications once they have been submitted to the
classification committee pursuant to sections 16(1) and (2) of the Bill
 Section 16 (4) provides that a classification committee may give a
publication one of four classifications



A “refused classification” under section 16(4)(a)
An “XX” classification under section 16(4)(b)
An “X18” classification under section 16(4)(c)
A classification in relation to relevant age restriction guidelines
under section 16 (4)(d)
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CLASSIFICATION CRITERIA
Classification
Classification
Criteria
Reports and Articles
affected
Defences
XX Classification
Explicit sexual conduct
which violates or shows
disrespect for the right to
human dignity of any
person
Outright ban in respect of
any article or news report
dealing with -
Will not apply if the
publication is a bone fide
documentary or is a
publication of scientific,
literally or artistic merit
Conduct or an act which is
degrading to human beings
 Rape
 Indecent Assault
 Domestic violence
Conduct or an act which
constitutes incitement to or
encourages or promotes
harmful behaviour
 The effects of crime or
incidents of violence
 If the publication falls
within any of the defences
it will then be subject to an
X18 classification
The defences do not
assist newspapers
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Photo’s courtesy of Alf Kumalo
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CLASSIFICATION CRITERIA
Classification
Classification Criteria
Reports and Articles
affected
Defences
X18 Classification
Explicit sexual conduct
A limitation in respect of
distribution to under age persons
will be imposed
Will not apply if the publication
is a bona fide documentary or is
a publication of scientific, literally
or artistic merit
Explicit infliction of sexual or
domestic violence
Explicit effects of extreme
violence
An age restriction may be
applied
The defences do not assist
newspapers
 The publication may have to
comply with certain packaging
requirements
Affected articles or news reports
includeSexual intercourse
Date rape and rape
generally
Indecent Assault,
 Violent incidents
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CLASSIFICATION CRITERIA
Classification
Refused Classification
Classification
Criteria
Reports and Articles
affected
Defences
 Child abuse
 Outright ban of any article
about child abuse
 Will not apply if the
publications is a bona fide
documentary or a
publication of scientific and
literally merit on a matter of
Propaganda for war
Incitement to imminent
violence
Advocacy of hatred based
on any identifiable group
characteristic
Outright ban of any news
report, photograph or
article dealing with
declarations of war, violent
demonstrations, violent
incidents or civil unrest
public interest
 The defences do not
assist newspapers
 Outright ban of any article
reporting hateful
statements of a public
figure or any other person
16
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THE CONSTITUTION OF THE REPUBLIC
OF SOUTH AFRICA 108 OF 1996

The fundamental right to freedom of expression in section 16(1) of the
Constitution includes




freedom of the press and other media
freedom to receive or impart information or ideas
freedom of artistic creativity
academic freedom and freedom of scientific research
Certain forms of expression are not protected under section 16(2) of the
Constitution
 Propaganda for war
 Incitement of imminent violence
 Advocacy of hatred based on race, ethnicity, gender or religion and that
constitutes incitement to cause harm
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CONSTITUTIONAL DIFFICULTIES
WITH THE BILL

Section 16 (2) of the Bill infringes the fundamental right to freedom of
expression by placing restrictions on expression subject to protection
under section 16 (1) of the Constitution –





News reports of rape or indecent assault
News reports of public statements by individuals or public leaders
Book reviews and film reviews
Letters and editorials
Articles on sexual conduct

Section 16 (2)(d) of the Bill widens the definition of hate speech in section
16(2) of the Constitution to hatred based on "any identifiable group
characteristic"

By omitting the requirement that hate speech must constitute incitement
to cause harm, the Bill extends its reach to speech which is deserving of
constitutional protection

Section 16(2)(d) of the Bill is constitutionally invalid
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CONSTITUTIONAL DIFFICULTIES
WITH THE BILL
 The notification of publications for classification and the imposition
of a criminal sanction for non compliance with the classification
provisions of the Bill amounts to a prior restraint on freedom of
expression which our courts have found to be unconstitutional in a
number of cases
 Any attempt to control expression based on content undermines the
concept of editorial independence which is a widely accepted
component of and pre-condition for freedom of the press and other
media
20
CONSTITUTIONAL DIFFICULTIES
WITH THE BILL
 The imposition of criminal sanctions for non compliance will stifle
free expression and encourage self-censorship
 The Bill enables the State to determine what constitutes permissible
expression at the expense of constitutionally protected expression
 Whilst, Print Media SA, NASA and MPASA supports the elimination
of child pornography this is not justifiable where constitutionally
protected expression and expression on matters of public interest is
silenced
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CONSTITUTIONAL DIFFICULTIES:
PRACTICAL IMPLICATIONS FOR NEWSPAPERS & MAGAZINES
 News is a perishable commodity and newspapers must be able to
immediately report on breaking news
 Classification of news reports will significantly undermine this ability and
constitutes a serious infringement of the right to freedom of the press
 The Bill does not commit to a time period for the classification process
and if not properly researched it can affect the deadline time for articles
to appear in newspapers and magazines.
 Newspapers and weekly magazines rely on topical news items to
maintain their position in the market.
 Where an age restriction is imposed on a news item, not only will it be
impractical to apply but access to newspapers will be limited to certain
age groups. This will occur even if only one news item is affected
 Age classifications will significantly undermine the constitutional right to
receive and impart information or ideas
22
LACK OF PROCEDURAL SAFEGUARDS
(exacerbates the unconstitutional effects of the Bill)
Act 65 of 1996
Regulates a wide range of procedural
issues:
The right to appear before the various
committees and boards of the Board
The right to be represented or assisted by a
legal practitioner or other person
The right to adduce oral or written evidence
The right to address the committee or Board
The right to have their case and arguments
duly considered
The right to be informed of the reasons for and
grounds upon which any decision is based
Section 21 provides for an appeal to the
High Court against certain decisions of
the classification committee
Amendment Bill 1996
Clause 18 repeals section 19 in its
entirety and puts in place no
replacement
Clause 20 removes this right of appeal
to the High Court completely
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CONCLUSION
 Sections 16(2), 16(4), 24A and 24B are unconstitutional
 Print Media SA requires the newspaper exemption to be
re-instated
 All provisions in the Bill which infringe the fundamental
right to freedom of expression must be removed
 The procedural safeguards must be re-instated
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