Transcript National Association of Broadcasters presentation

2007
NATIONAL ASSOCIATION OF
BROADCASTERS
FILM AND PUBLICATIONS AMENDMENT BILL PRESENTATION TO THE PORTFOLIO COMMITTEE
ON HOME AFFAIRS
3 MAY 2007
2007
•
•
•
•
•
•
NAB DELEGATION
NOLO LETELE
JOHANN KOSTER
BRONWYN KEENE YOUNG
FAKIR HASSEN
KAREN WILLENBERG
KWEZI MTENGENYA
• DAN ROSENGARTEN
• FAYEEZA KATHREE
• STEVEN BUDLENDER
CEO, MULTICHOICE
Exec Director, NAB
Channel Dir, e-tv
Policy and Reg, SABC
Reg Affairs, M-NET
Reg Affairs, MULTICHOICE
Attorney
Advocate
Advocate
2
2007
•
•
•
•
•
•
OUTLINE OF
PRESENTATION
Introduction
Regulatory Environment
Constitutional Concerns
Issues relating to subscription
broadcasting
Conclusion
Questions
3
2007
INTRODUCTION
4
INTRODUCTION
2007
• NAB is the representative of the South African
broadcasting industry
• Members include public, commercial and community
television and sound broadcasters
• At the outset, the NAB wishes to confirm that:
– the NAB and its members share the Committee’s
concerns regarding protection of children
– the NAB and its members are supportive of any
attempt to eradicate the scourge of child pornography
– the NAB and its members are committed to
responsible broadcasting
5
2007
INTRODUCTION
• All members of the NAB are unanimous in their concern
about the extent of the proposed amendments and the
consequences for the independent regulation of
broadcasting
• Television broadcasting members of the NAB will be
directly affected - SABC, e-tv, M-Net and Multichoice have
joined the NAB today to convey the concerns of the
broadcasting community
• It is hoped that this joint presentation will:
– assist the Committee by avoiding repetition of the
same issues; and
– confirm that the concerns raised are shared by all the
broadcasters present today.
6
2007
REGULATORY
ENVIRONMENT
7
2007
BROADCASTING CHILD
PORNOGRAPHY IS ALREADY
CRIMINALISED BY THE ACT
• The stated intention of this Bill is to deal with child
pornography
• Under the existing Act, “child pornography” is defined as:
persons under the age of 18 engaging or participating in
sexual conduct or showing the body of a person under the
age of 18 in a manner that can be used for sexual
exploitation
• S. 27(1)(a) of the Act already makes it a criminal offence
to possess, create, produce, distribute or broadcast child
pornography – up to five years imprisonment
• This already applies to all broadcasters – it is currently
illegal for any broadcaster to broadcast child pornography
8
2007
REGULATORY
ENVIRONMENT
• For any broadcaster to operate, it must be licensed by ICASA
• The Electronic Communications Act already requires that all
licensed broadcasters comply with:
 The Code of Conduct of Broadcasters prescribed by ICASA; or
 Another Code of Conduct approved by ICASA – eg: the BCCSA
Code
 These two codes are practically identical
• The NAB has in addition and at the request of ICASA submitted a
proposed Code of Conduct for subscription broadcasters
• All programming content broadcast by NAB members is also
governed by:
 Individual license conditions of each broadcaster as set by
ICASA
 Internal editorial policies of each broadcaster
9
2007
REGULATORY
ENVIRONMENT
• The Codes prohibit the broadcast of materials which, judged within
context, contains scene/s of
 child pornography
 bestiality, incest or rape
 explicit violent sexual conduct
 explicit sexual conduct which violates the right to human dignity
of any person or which degrades a person and which constitutes
incitement to cause harm
 explicit infliction of or explicit effects of extreme violence which
constitutes incitement to cause harm
• The Codes prohibit broadcasters from knowingly broadcasting
material which, judged within context
 amounts to propaganda for war
 incites imminent violence
 advocates hatred that is based on race, ethnicity, gender or
religion and which constitutes incitement to cause harm
10
2007
REGULATORY
ENVIRONMENT
• Licensees are required to –
– avoid broadcasting material, including promotional
material, which is unsuitable for children and/or contains
nudity, explicit sexual conduct, violence or offensive
language before the watershed period
– classify the programmes they intend to broadcast
indicating appropriate age restrictions and whether
contains nudity, sexual conduct, violence and offensive
language
11
2007
REGULATORY
ENVIRONMENT
• Broadcasters are required to report regularly to ICASA on their
compliance with these codes and obligations
• The Code of Conduct is administered by the Broadcasting
Complaints Commission of South Africa (BCCSA) which regularly
submits reports to ICASA on broadcasters’ compliance.
• The Codes of Conduct and editorial policies balance the free
speech provisions of the Constitution and the obligation to protect
minors.
• They are underpinned by concept of adequate viewer information,
public awareness and sensitivity in scheduling.
• Broadcasters already rely on and respect the classification
guidelines of the FPB with regard to movies
• ICASA has just sworn in its Complaints and Compliance Committee
as required by the ECA
12
2007
CONCLUSION ON THE
STATUS QUO
• The broadcast of child pornography is already illegal and can
be punished by up to five years imprisonment
• No licensed broadcaster has broadcast any child
pornography
• All licensed broadcasters must comply with codes of conduct
approved by ICASA
• All licensed broadcasters are monitored by ICASA to ensure
compliance with these codes
13
2007
CONSTITUTIONAL CONCERNS
14
2007
THREE ASPECTS OF
THE BILL ARE
UNCONSTITUTIONAL
• Clause 22(c) – subjecting broadcasters to the
jurisdiction of the FPB
• Clause 16 – provisions dealing with
classification of films
• Clause 24 – provisions dealing with the
creation of offences
15
2007
NEGATIVE EFFECTS ON
BILL’S LEGITIMATE AIMS
• The aims of preventing child pornography and
preventing children from being exposed to harmful
materials are laudable and important
• But if the Bill is enacted in its present form this will
result in constitutional challenges and sections of the
Bill will be declared unconstitutional
• This could have the consequence that important
provisions which pursue the critical aim of preventing
child pornography and hate speech are declared
invalid because of their substantially overbroad effect
16
2007
CLAUSE 22(C) – SUBJECTING
BROADCASTERS TO THE
JURISDICTION OF THE FPB IS
UNCONSTITUTIONAL
17
2007
THE PROBLEM
• Current provision: Section 23(3) of the Act provides that
broadcasters who have a broadcasting licence are not
subject to the classification mechanisms of the FPB
• Proposed change: Clause 22(c) of the Bill proposes
deleting section 23(3) of the Act in its entirety
• Consequence: Licensed broadcasters will have to submit
all programmes to the FPB for classification and approval
before broadcast
• Effect: The FPB will be required to regulate broadcasting
18
2007
ENCROACHMENT
ON ICASA
• The independent authority established in terms of
s192 of the Constitution is ICASA - not the FPB
• The Constitution only allows ICASA to regulate
broadcasting
• The current Act respects this by exempting
broadcasters from jurisdiction of the FPB
• The Bill destroys this carefully crafted position by
giving FPB jurisdiction over broadcasters
• The Bill is in direct conflict with s.192 of the
Constitution
19
2007
FPB IS NOT
“INDEPENDENT”.
• Section 192 requires any institution that regulates broadcasting to
be “independent”
• The Constitutional Court has held that an institution is only
“independent” if:
–The executive does not control the appointment of members of
the institution; and
–The executive does not have the power to itself remove
members of the institution; and
–Members of the institution have financial security free from
interference by the executive
• The FPB does not satisfy any of these requirements - the Minister
has almost complete control over the appointment, removal and
salaries of members of the FPB.
• The Bill therefore conflicts with the Constitution by giving the FPB
jurisdiction over broadcasters
20
2007
CONCLUSION –
CLAUSE 22(C)
• The clause is unconstitutional:
– It subjects broadcasters to the jurisdiction of a
body other than ICASA
– The FPB lacks the required level of independence
• If enacted the clause will likely be declared invalid by
the Constitutional Court
21
2007
CLAUSE 16 – THE
PROVISIONS RELATING TO
CLASSIFICATION OF FILMS
ARE UNCONSTITUTIONAL
22
2007
THE PROBLEM
• Proposal: Clause 16 would require any person who
intends to distribute or exhibit “any film” to submit that film
for examination and classification by the FPB
• Problem: The Act defines “film” very broadly:
“any sequence of visual images recorded on any
substance, whether a film, magnetic tape, disc or
any other material, in such manner that by using
such substance such images will be capable of
being seen as a moving picture”
• Effect: Therefore, any program broadcast on TV is a “film”
in terms of the Act
23
2007
THIS IS IMPRACTICAL
• The following programmes will have to be submitted to the
FPB for classification and approval before they are
broadcast– Every movie
– Every news bulletin
– Every episode of every drama and series
– Every current affairs programme
– Every sports event
• Result: On average approx 96 hours of programming to
be approved every day – excluding satellite
24
2007
THIS WILL PREVENT
PROPER NEWS COVERAGE
• The effect of the Bill on news and current affairs
programmes will be particularly devastating
• It will mean a delay in the broadcasting of every news
bulletin
• Denying the public the right to hear what has happened
even for a few hours is plainly undesirable and plainly
violates freedom of expression
27
2007
THIS WILL PREVENT
ALL LIVE COVERAGE
• Proposal: Every broadcast would have to be submitted
to the FPB for classification and approval before
broadcast
• Effect: All live broadcasts would cease
• Consequences:
– No live news
– No live parliamentary coverage
– No live current affairs
– No live sport
– No live music
28
2007
THIS IS
UNPRECEDENTED
• The NAB and its members are unaware of any
democratic country anywhere in the world that
requires any news bulletin, documentary and sports
event to be submitted to a pre-screening board for
approval
• But the Bill proposes requiring every news bulletin,
documentary and sports event being submitted to the
FPB
…/2
25
2007
THIS IS
UNCONSTITUTIONAL
• Section 16(1) of the Constitution guarantees the right to
freedom of expression
• Courts in all democratic countries take the view that “prior
restraints” and “pre-publication censorship” of expression
by the government or its institutions are generally
unconstitutional
• The Constitutional Court takes the same approach to
censorship:
“Having regard to our recent past of thought control,
censorship and enforced conformity to
governmental theories … we should be particularly
astute to outlaw any form of thought control,
however respectably dressed.”
S v Mamabolo 2001 (3) SA 409 (CC) para 37
26
2007
PROPOSED
CLASSIFCATION CRITERIA
• Proposed s. 18(3)(a) requires that the FPB must classify a
film as a refused classification if the film
“(i) contains depictions or sequences of child abuse,
propaganda for war or incites imminent violence
(ii) advocates hatred based on any identifiable group
characteristic unless the film, judged within context,
is a bona fide documentary or film of scientific merit
on a matter of public interest”
• A refused classification means that the film or programme
could not be broadcast at all
29
2007
OVERBROAD EFFECT:
PROGRAMMES BANNED
• Almost every movie or documentary regarding the history
of World War II contains a “depiction” or “sequence” of
“propaganda for war” - banned
• News reports of comments by US President George W
Bush might often be said to contain a “sequence” of
“propaganda for war” - banned
• Legitimate movies demonstrating the suffering of children
contain a “depiction” or “sequence” of “child abuse” banned
• No defence of artistic merit available to avoid banning
30
BILL’S RESTRICTIONS DO NOT
ACCORD WITH CONSTITUTION’S
RESTRICTIONS
2007
Constitution
restrictions: s16(2)
Bill restrictions: refused
classifications and XX
Propaganda for war
“contains depictions or
sequences of propaganda for
war”
X
None
“contains depictions or
sequences of child abuse”
X
None
“depicts explicit sexual conduct
which violates or shows
disrespect for the right to human
dignity”
X
None
“depicts conduct or an act which
is degrading of human beings”
X
31
2007
PROVISIONS ARE
UNCONSTITUTIONALLY
VAGUE
• Proposed s. 18(3) so vague that they would be almost
impossible for FPB to apply
– What is explicit sexual conduct that “shows disrespect
for the right to human dignity”?
– What is “an act which is degrading of human
behaviour”?
– What is an act which “promotes harmful behaviour”?
• Constitutional Court has repeatedly made clear that overly
vague legislation is unconstitutional
32
2007
CONCLUSION –
CLAUSE 16
• The clause:
– Is impractical
– Would prevent proper news coverage
– Would prevent all live coverage
– Is unprecedented
– Is unconstitutional in a series of respects
• If enacted the clause will likely be declared invalid by the
Constitutional Court
33
2007
CLAUSE 24 – THE
PROVISIONS DEALING WITH
THE CRIMINAL OFFENCES
ARE UNCONSTITUTIONAL
34
2007
THE PROBLEMS
• The criminal offences in the Bill have three main
problems:
– They violate freedom of expression
– They are overbroad – prohibit far too much
legitimate expression
– They are irrational – operate even if FPB has
approved film for broadcast
• These problems affect most of the criminal
prohibitions in the Bill
• Three examples follow
35
2007
EXAMPLE 1 –
BROADCASTING NONCLASSIFIED FILM
• Proposed s 24A(2)(a) - criminal offence to
broadcast a film that has not been classified by
the FPB
• Up to 5 years imprisonment
• Effect: A broadcaster must pre-submit every
news bulletin, documentary, episode, movie,
sports programme to the FPB for classification or
face conviction
• As demonstrated above, this is unconstitutional
36
2007
EXAMPLE 2 –
FILMS CONTAINING
SEXUAL CONDUCT
• Proposed s.24A(4) and s24B(3) - criminal offence to
distribute film containing “depictions, descriptions or
sequences of sexual conduct” to person under 18
• Up to 5 years imprisonment
• Sexual conduct defined as including “sexual intercourse”
• Effect: No movie containing a scene of sexual intercourse
may be broadcast on television, because television is
accessible to persons under 18
• This is so even if the movie has been approved by FPB for
broadcast to persons under 18!
• The provision is unconstitutional – violates freedom of
expression and is irrational.
37
2007
EXAMPLE 3 –
FILMS DEPICTING
ABUSE OF CHILDREN
• Proposed s 24B(1) – criminal offence to broadcast any film
containing “depictions, descriptions or sequences” of the “abuse of
children”
• Up to ten years imprisonment
• Effect: Broadcasting any film showing children being abused or
sexually exploited means committing a criminal offence
• This is so even if:
• The whole point of the movie is to condemn the sexual
exploitation of children
• The film plainly has serious dramatic, artistic and/or
scientific merit
• The film has been submitted to the FPB and has been
approved for broadcast or screening with or without an age
restriction
• Provision is unconstitutional – violates freedom of expression and
is irrational.
38
2007
CONCLUSION –
CLAUSE 24
• The clause is unconstitutional:
– Violates freedom of expression in a series of respects
– Overbroad
– Irrational
• If enacted the clause will likely be declared invalid by the
Constitutional Court
39
2007
CONCLUSION
• Three parts of the Bill are therefore unconstitutional
• Clause 22(c) which subjects broadcasters to the
jurisdiction of the FPB
• Clause 16 which deals with classification of films
• Clause 24 which deals with criminal offences
• If enacted the clauses will likely be declared invalid by the
Constitutional Court
• This could have the consequence that important
provisions which pursue the critical aim of preventing child
pornography and hate speech are declared invalid
because of their substantially overbroad effect
40
2007
WAY FORWARD?
• Leave current exemption for broadcasters in place
• The current exemption still allows broadcasters to be
prosecuted for broadcasting child pornography
• All other concerns are covered by ICASA in terms of the
Electronic Communications Act, licence conditions and
obligatory Codes of Conduct
41
2007
SPECIFIC ISSUES RELATING
TO SUBSCRIPTION
BROADCASTERS
42
2007
INTRODUCTION
• Subscription broadcasters such as MultiChoice and Sentech
have additional concerns which will have a direct impact upon
their ability to –
 Operate subscription broadcasting services
 Comply with the proposed amendments to the Act
43
2007
PROPOSED
SUBSCRIPTION CODE
• Members of the NAB adhere and subscribe to the BCCSA
Code of Conduct
• More recently at the request of ICASA, the NAB o.b.o the
broadcasting sector submitted to ICASA a Code of Conduct
for Subscription Broadcasting Licensees
• The Code takes into account the particular nature of
subscription broadcasting services which is based on a direct
contractual relationship between the service provider and the
subscriber
• Subscription broadcasting services give subscribers freedom
of choice and the ability to determine the content which they
wish to view or listen to, or which the subscriber deems
appropriate for his/her family
44
2007
PROPOSED
SUBSCRIPTION CODE
• NAB has sought to ensure that, where appropriate, the
proposed Code of Conduct is consistent with –
 the legislative framework on broadcasting and the Films
and Publications Act
 with s16(2) of the Constitution and the Films and
Publications Act as regards content which may not be
broadcast
• The definitions of words and phrases used in the Code of
Conduct accord with those in the broadcasting legislation and
where appropriate are identical to certain definitions in the
Films and Publications Act –
 e.g the definitions of “child pornography” and “sexual
conduct”
45
2007
PROPOSED
SUBSCRIPTION CODE
• Where a Films and Publications Board classification exists such
classification may be used by a subscription broadcasting service
licensee
• All programmes on channels packaged outside South Africa, other
than those which would be classified as family viewing in the country
in which it is packaged, must also be classified
• The classification must indicate the appropriate age restriction for
viewing or listening to a programme
46
2007
PROPOSED
SUBSCRIPTION CODE
• Subscription broadcasting licensees are required to –
 provide clear and consistent information to its audience about
the classification thus enabling the audience to select
programming they do not wish to view or they do not wish their
children to view
 implement adequate mechanisms to enable a subscriber, using
a mechanism such as a pin number, to block a programme,
based on the classification of the programme or a channel
included in its service
 ensure that any decoders which it promotes or sells are capable
of allowing a subscriber to block any programme, based on the
classification of the programme, or channel included in its
service
 inform all its subscribers of the parental control mechanism
available and provide the subscriber with a step-by-step guide
on how to use it (“parental control guide”)
47
2007
PROPOSED
SUBSCRIPTION CODE
• The proposed Code of Conduct was drafted with reference to
s23(3) of the Films and Publications Act which exempts
broadcasters from the requirement of classification
• Its dovetailing with certain provisions of the Act will adequately
protect children from being exposed to the broadcasting of
disturbing, harmful and age inappropriate material
• The proposed code, as far as broadcasters are concerned,
will prevent the sexual exploitation of children and exposing
children to pornography
• It is therefore not necessary to amend the current Act in
relation to the broadcasting sector
48
2007
PACKAGING OF CHANNELS
AND BOUQUETS
• Subscription broadcasters package channel bouquets which
may broadcast across multiple territories:
 content of pre-packaged channels cannot be altered to suit
individual territories
 not able to edit or interfere with business models or
programming that constitutes these channels
 channel suppliers do not allow content changes or
insertions to a channel without consent
 has no control over content of channels it acquires
• However, subscribers have the ability to prevent the viewing
of, or listening to, content on the service and to block content
which they deem inappropriate
49
2007
MULTICHOICE
• Provides subscription broadcasting services in South Africa to
about 1.3m subscribers and to over 50 other African countries
• Acquires channels from South Africa and international
channel suppliers. MultiChoice cannot tamper with the content
of these channels which include:
– CNN, BBC, SkyNews
– Hallmark, BBC Prime, Discovery, Disney
• Channels packaged for a number of territories spanning five
time zones
50
2007
COMPLIANCE
IMPOSSIBLE
• Accordingly, compliance with a number of the proposed
amendments to the Bill
 is impossible; and
 will have a direct negative impact on ability of MultiChoice
to provide a subscription satellite broadcasting service
• Why?
 Definition of film covers all audio-visual broadcasting
content of MultiChoice including news, documentaries and
movies on channels received from outside the country, eg:
CNN, BBC
 s18 requires all films not classified, exempted or approved
in terms of Films and Publications Act to be submitted for
examination and classification
51
2007
COMPLIANCE
IMPOSSIBLE
• If film approved for exhibition in public, then broadcaster
required in terms of new s18A to display classification,
consumer advice, or any other condition imposed by Board
with respect to exhibiting film in public on all advertisements
and all illustrated exhibitions associated with the film
 This is impossible on pre-packaged channels
• If film not approved, s20 provides for appeal to the Appeal
Board
 Appeal Board may refuse appeal, allow appeal, wholly or
in part, and give such decision as the Film and
Publications Board should, in its view have given
 Appeal Board may also amend classification of the film
and impose conditions in respect of exhibition thereof
52
2007
OFFENCES
• By virtue of repeal of s24A and s24B, should a subscription
broadcaster –
 exhibit film without registering with Board
 broadcast or advertise film which has not been classified
 advertise film in any medium without indicating age
restriction, consumer advice and any other conditions
imposed on the film advertised
 without prior approval of the Film and Publications Board,
exhibit in public during same screening session a trailer
advertising film with a more restrictive classification
• then it will be guilty of an offence and liable upon conviction to
a fine or imprisonment for period not exceeding 5 years or to
both a fine and imprisonment
53
2007
OFFENCES
• Proposed amendments therefore impose a harsh sanction for
failure to comply with proposed s18
• Given the particular nature of a digital subscription
broadcasting service such as MultiChoice, it is clear that it
would be impossible to comply. Why?
– It has no control over the content of the channels it acquires
– Therefore compliance with classification, age-restrictions and
audience advice requirements of proposed amendments would
be impossible
– Resultant consequences of such non-compliance could be far
reaching and serious
54
2007
EXEMPTION FROM
PROSECUTION
• s22 of proposed amendment to Act provides Board with
discretion to exempt broadcasters from prosecution
• If Board decides to exempt film, it has powers to impose “such
conditions as it deems fit”
– s18 grants extremely wide powers to the Board to impose
conditions
– Because MultiChoice has no control over the content of
the channels that it broadcasts, this would still be
unachievable
• The exemption provisions do not address concerns raised by
MultiChoice and other broadcasters as they still constitute
prior approval of what may be broadcast
55
2007
SELF REGULATION
• It is precisely for this reason that the regulatory / legislative
framework for licensed broadcasters sanctions self-regulation
in relation to broadcasting content
• The Bill does not take into account self-regulation in the
broadcasting sector
• It fails to recognise the protections against children being
exposed to disturbing, harmful and age-inappropriate material
that have been put in place under the BCCSA Code, the
proposed subscription Code of Conduct and the role of ICASA
and the BCCSA in enforcing these Codes
• It also fails to recognise efforts made by the broadcasting
industry to comply with these Codes
56
2007
CONCLUSION
57
2007
CONCLUSION
• With regard to broadcasting, there are a number of statutory
and self-regulatory measures in place to protect children from
being exposed to disturbing, harmful and age-inappropriate
material as well as from pornography and sexual exploitation
• The Government has stated that the primary purpose of the
Bill is “to protect children from potentially harmful, ageinappropriate material” and from “exposure to violence and
sexual abuse.”
• Unfortunately, the Bill does not allow for this purpose to be
effectively achieved since it attempts to amend the current
dispensation applicable to broadcasting service licensees
– when this is unnecessary given existing regulation; and
– to do so will be to create serious constitutional difficulties
58
2007
CONCLUSION
• We thank the Committee for the opportunity to appear before
you today
• The NAB and its members wish to re-affirm their support for
the work of the Committee in protecting children against
harmful content
• The concerns raised by the broadcasting community do not
seek to frustrate the goals of the Committee, but to ensure a
dynamic broadcasting sector which, as guaranteed by the
Constitution, is subject to independent regulation.
• We trust our concerns will be addressed by the Committee in
your deliberations on this Bill
59
2007
THANK YOU
60