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PRESENTATION ON THE SECOND
DRAFT OF THE FILMS AND
PUBLICATIONS AMENDMENT BILL
[B27B-2006]
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PRINT MEDIA SA TEAM

Trevor Ncube
 President, Print Media SA
 Chief Executive Officer, Mail & Guardian



Tony Howard, CEO, Independent Newspapers
Nazeem Howa, Executive Director Operations, Independent Newspapers
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



Joe Thloloe
 Press Ombud, Press Council of South Africa
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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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PRESS COUNCIL OF SOUTH AFRICA
 Our members are subject to self regulation by the Press Council of
South Africa
 To give effect to the requirement of self-regulation the Press Ombud
was established and has jurisdiction over 640 newspapers and
magazines
 There is also a Press Appeals Panel
 Public representatives are members of the Press Council of the
Press Ombud and the Appeals Panel
 The system of self regulation has a proven track record in dealing
with contraventions of the Press Code
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THE NASA EXEMPTION

The exemptions in sections 16(1) and 16(2) are
extremely narrow in that they are only of application to
newspapers published by NASA members

The exemption excludes publishers of daily, weekly,
foreign and community newspapers as well as
consumer, trade, technical, professional and other
specialist magazines who are not NASA members

Distributors and advertisers are for the first time also
made subject to the classification provisions of the Bill
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THE NASA EXEMPTION
 Under the Films and Publications Act, non NASA members were
only subject to classification where a complaint was lodged with the
Films and Publications Board and referred to the classification
committee for a decision and if appropriate, classification
 Under the Bill these publishers together with advertisers and
distributors are subject to mandatory classification
 This amounts to a prior restraint on freedom of expression and is
unconstitutional
 The exemption must be extended to include all publishers subject to
regulation by the Press Council of South Africa
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THE CLASSIFICATION PROVISIONS OF
THE BILL
 The classification provisions in section 16(2) of the Bill encroach on
speech which is subject to constitutional protection with the result
that legitimate publications will be subject to –
 An outright ban; alternatively
 The imposition of severe restrictions on publication or distribution
 This also amounts to a prior restraint on the right to freedom of
expression
 The suppression of constitutionally protected speech constitutes an
unjustifiable limitation on the right to freedom of expression.
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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 on any identifiable group characteristic that
constitutes incitement to cause harm

The reference to "sexual conduct" will result in non NASA publishers having to
submit all reports and articles 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.
Articles on HIV/AIDS education, sexual health or reproduction will all be
affected
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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 non NASA member publication
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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STATUTORY OFFENCES

Sections 24A(2) and (3) make it an offence to distribute, exhibit, offer for
sale or advertise any publication which has not been classified by the Films
and Publications Board

Section 24A(2) applies to non NASA members and they will be guilty of
having contravened the section under circumstances-
 where no request has been made for classification under section 16(1)
 where a classification has not been made by the Films and Publications
Board

Publishers cannot be criminally liable for publications which may or should
have been classified by the Films and Publications Board and the imposition
of criminal sanctions must be clear in application.
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STATUTORY OFFENCES

Sections 24A (3) is of application to both NASA and non NASA members

The section requires all publishers to determine whether any advertisement
placed in their publications would have been classified in a particular
manner

It is not reasonable to expect a publication to conduct an assessment of
whether products to be advertised may or may not be classified in a
certain manner by the Films and Publications Board, if they were submitted
for classification

NASA and non NASA members will be guilty of an offence under
circumstances where a classification has not been made by the Films and
Publications Board

The events which give rise to criminal sanctions in legislation must be clear
and publishers cannot be held criminally liable for publications which may or
should have been classified by the Films and Publications Board
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STATUTORY OFFENCES

Sections 24A (4) is of application to both NASA and non NASA members

The effect of the section is that all publishers will not be able to distribute
any publication which contains depictions, descriptions or scenes of sexual
conduct to any person under 18 years

The wide definition of “sexual conduct” in the Bill will mean that articles in
newspapers and magazines on rape, indecent assault or HIV/AIDS would
amount to descriptions of sexual conduct

These publications are ordinarily sold without an age restriction and it will be
impossible for newspapers and magazines to prevent these publications
from falling into the hands of children

The effect of the criminal sanction will be stifle legitimate speech on sexual
conduct altogether and this is unconstitutional
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STATUTORY OFFENCES
 Section 24B(2) is of application to both NASA and non NASA
members
 Section 24B(2) makes it an offence not to report any possession,
creation, production, importation or distribution of child pornography
where a person has knowledge of or merely suspects the
commission of such an offence
 The section undermines the confidentiality of journalist's sources
and in turn nullifies the right the print media holds to freedom of
expression
 Section 24B(2) is unconstitutional
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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
 The imposition of criminal sanctions for non compliance
will stifle free expression and encourage self-censorship
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CONSTITUTIONAL DIFFICULTIES
WITH THE BILL
 The Bill enables the State to determine what
constitutes permissible expression at the
expense of constitutionally protected expression
 Whilst, Print Media SA 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 DIFFICULTIESPRACTICAL IMPLICATIONS
 There is no indication of how long the classification
procedure will take and a delay of a few days in
classifying material, particularly of news material
severely undermines the right to freedom of the press
 The overbroad provisions of section 16(2) may result in
self censorship
 The severe punishment for publishers or distributors who
publish or distribute newspapers and magazines which
have not been submitted for classification set out in
section 24A will stifle expression
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CONCLUSION
 Sections 16(2), 16(4), 24A and 24B are
unconstitutional
 Print Media SA requires the NASA exemption to
be extended to all persons subject to regulation
by the Press Council
 All provisions in the Bill which infringe upon the
fundamental right to freedom of expression must
be removed
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