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PRESENTATION ON THE FILMS AND
PUBLICATIONS AMENDMENT BILL
[B27-2006]
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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
includeSexual 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
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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
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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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