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Amendment Act a "grave intrusion" on freedom of expression, says FXI

(FXI/IFEX) - The Freedom of Expression Institute (FXI) is deeply disappointed by the signing into law of the Films and Publications Amendment Act 3 of 2009 (Amendment Act). The Amendment Act constitutes a grave intrusion of the right to freedom of expression. To this end we are of the view that certain sections of the Amendment Act fail dismally in giving effect to the right to freedom of expression.

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 against the letter and spirit of the Constitution of the Republic of South Africa (Constitution).

During 2008 Parliament considered and passed the Films and Publications Amendment Bill ("the Bill"). FXI made submissions to both to the National Assembly and the National Council of Provinces ("NCOP") in respect of the Bill.

The passing of the Bill initiated further objections by interested parties to the President of the Republic of South Africa (President) accompanied by a request that the President refrain from signing the Bill into law and that it be referred back to Parliament for reconsideration, alternatively to the Constitutional Court for a decision as to its constitutionality, as the President is empowered to do in terms of section 79 of the Constitution.

As a result of the aforementioned, 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.

The Bill was reconsidered, amended slightly, passed by Parliament and signed into law by the President.

The Amendment Act, under threat of a 5-year prison sentence or a fine, or both, forces a publisher who is not a "bona fide newspaper" recognized by the Press Ombudsman or a person who wishes to distribute, broadcast or exhibit any film or game, to submit such a publication, film or game to the Films and Publications Board (FPB) for approval prior to publication, distribution, broadcast or exhibition of any such material which: contains sexual conduct which violates or shows disrespect for the right to human dignity of any person; degrades a person; constitutes incitement to cause harm; advocates propaganda for war; incites violence or advocates hatred based on any identifiable group characteristic and that constitutes incitement to cause harm.

This requirement, which is now part of our law, amounts to pre-publication censorship in the worst degree, which will in turn open the regulation of publications, films and games up to abuse and inhibit the free flow of information.

Moreover, the Amendment Act provides that the FPB must ban any material which, in their view, contains: child pornography, propaganda for war, incitement of imminent violence, the advocacy of hatred based on any identifiable group characteristic and that constitutes incitement to cause harm; explicit sexual conduct which violates disrespect for the right to human dignity of any person; bestiality, incest, rape or
conduct or an act which is degrading of human beings; conduct or an act which constitutes incitement of or encourages or promotes harmful behavior; explicit infliction of sexual or domestic violence; or explicit visual presentations of extreme violence.

In no way does FXI support or condone child pornography, the incitement of imminent violence, propaganda for war or hate speech. However, we view the aforementioned provisions as unjustifiable, unreasonable and arbitrary limitations on the right to freedom of expression in that the provisions limit the right to freedom of expression in a manner that is overbroad and which transgresses the bounds of unprotected forms of expression, and which are prohibited in terms of section 16(2) of the Constitution. This in turn can only lead to abuse and uncertainty.

An attempt was made to allay our fears by including provisions in the Amendment Act to the effect that if the FPB is of the view that material, if judged within context, constitutes a bona fide documentary, or is a publication of scientific, literary or artistic merit or is on a matter of public interest, it can approve such material. What they fail to realise is the fact that it is not the prerogative of an organ of state to dictate to society what they may read, see, hear or do.

Furthermore, the Amendment Act promotes unequal treatment before the law. It is unequivocally unfair to grant one group of publishers an absolute exemption from the requirement to submit material for classification. In no way does FXI's statement in this regard imply that all publishers should be required to submit their material to the FPB for approval prior to publication. On the contrary, all publishers in the market should be similarly exempt from this requirement. To grant a group of publishers such an exemption would also grant that group an unfair market advantage over the disadvantaged group in terms of time, cost and effort.

All citizens are bound by the law of the Republic of South Africa and must comport themselves accordingly, failing which they are subject to the full might of the law. 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, a limitation which would pass the balancing test envisaged in section 36 of the Constitution and if not prohibited would result in imminent and substantial harm occurring (e.g. child pornography).

As for the regulation of films and games, the role of the FPB should be restricted to the classification thereof, subject to the power to prohibit only those forms of expression that are not protected by the Constitution or would pass the balancing test envisaged in section 36 of the Constitution and if not prohibited would result in imminent and substantial harm occurring, and the hearing of complaints.

The Amendment Act introduces a new offence in our law, requiring that anyone who knows of, suspects, or has reason to suspect that an offence has been or is being committed under the provisions of the Act must furnish the police with a full report of such knowledge or suspicion, failing which such person shall be guilty of an offence.

This potentially violates the rights to freedom of expression unjustifiably as it will force journalists to reveal their confidential sources of information related to the commission of an offence. This will undermine the media severely and will diminish the media's ability to develop other sources and gather news.

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 the Constitutional Court has already ruled should be jealously guarded. It is far too easy to sally forth and rail against the perceived ills of creative minds under the guise of the protection of public morality.

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