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Revised Film and Publications Amendment Bill still problematic, says FXI

(FXI/IFEX) - The following is a 31 May 2007 FXI press release:

FXI's preliminary comments on the revised Film and Publications Amendment Bill

The Freedom of Expression Institute (FXI) welcomes the fact that the Parliamentary Portfolio Committee on Home Affairs has reinserted the exemptions for the media into the controversial Film and Publications Amendment Bill.

However, there are still serious issues in the Bill, that impact negatively on freedom of expression beyond the media. The FXI hopes that these problems will be attended to during debates in the National Council of Provinces.

In terms of the Bill, any person (other than newspaper publishers) who intends to distribute a publication that contains visual presentations, descriptions or representations of sexual conduct, propaganda for war, incitement to imminent violence or hate speech, will have to submit the publication for classification.

This means that non-media creators of publications, such as artists, writers and academics, will be subject to the same sort of pre-publication censorship that the media fought so hard to avoid.

It is entirely inappropriate for a government institution like the Film and Publications Board to be the arbiter of what can and cannot be read or viewed. Even if the Board decides to grant such publications an exemption on literary or artistic grounds, it is dangerous to hand the power to decide whether to allow publications or not over to the government, as it opens the door to government censorship of controversial speech.

In retaining this classification requirement for publications, the Portfolio Committee has failed to address the crucial distinction between films and publications recognized in the Film and Publications Act of 1996. In terms of the Act, films are subject to tighter regulation than publications, as the former are considered to be more pervasive than the latter. Works of art are considered to be publications, and were therefore subject to lighter regulation. Publications were classified only if someone complained about them.

The Bill changes this arrangement. Now publishers will be required to submit potentially controversial material before distribution, and will be guilty of a criminal offence if they do not. This is untenable. It will lead to great uncertainty amongst publishers and artists about whether they are required to submit their work or not, which may well lead to self-censorship. Cutting edge creative work cannot thrive in such a climate.

The Bill also treats publications containing descriptions of sexual conduct as suspect, requiring them to be submitted for classification. This requirement smacks of the morality police; the government should not be in the business of controlling the sexual expression of its citizens.

It is worrisome that the drafting of the classification section is still much broader than the constitutional exemptions for particular forms of expression, although - in a welcome move - the definition of hate speech has been narrowed somewhat.

The FXI is also concerned that the XX classification has been broadened to include material that "encourages or promotes harmful behaviour", which is much broader than what the 1996 Act allows for, and cannot possibly be constitutional as it is simply overbroad.

The FXI is especially concerned about the implications of the Bill for political activism. Many community organisations, concerned resident committees and social movements that produce pamphlets, newsletters, petitions and other forms of popular media - and who are critical of the government on issues like service delivery - could fall foul of the Bill. In the process, the space for robust speech on crucial issues of the day will contract.

The FXI suspected that these problems would creep through the Portfolio Committee unaddressed because of the narrowness of the media campaign around the Bill. The fight for freedom of expression will not be won unless it is won for all South Africa's citizens, not just the media.

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