The draft Film and Publications Act, released for public comment in March, differs very little from its predecessor, the Publications Act of 1974 in that it also provides for classifications, committees and bannings. This forms the essence of the response of the Freedom of Expression Institute (FXI) to the draft, sent to the Task Group responsible for writing the Act. The Task Group was charged by Home Affairs Minister Mangosuthu Buthelezi with the task of reviewing the old Act as it clearly violated the Freedom of Expression clause in the Interim Constitution, brought into effect in April 1994.
The draft Bill, if enacted, will make it an offence to possess and distribute films and publications rated XX. These include child pornography, depictions of physically violent conduct coupled with explicit sexual scenes, bestiality and extreme violence in amanner which is likely to create a substantial risk of imminent ensuing violence.' Another category of classified publications (X18, or adult pornography, as well as materials not classified as XX) could be sold at adult premises, provided they are licenced to distribute such material. In addition, material that ostensibly promotes religious hatred can be banned for possession and distribution. Classificatory committees, to be set up by a Board appointed by the President, will be responsible for classifying documents, although all decisions can be taken under review to an Appeal Board. All films are to be submitted to the board, and will be given a rating subject to certain scenes being cut, if deemed necessary by the classificatory committee.
In a submission to the Task Group that drew up the Act, the FXI noted that the while there are no references to the word banning' in the draft, the restrictions relating to XX publications clearly amount to a ban. The intention of the Bill, the FXI argued, should rather be to regulate the exposure of publications to the public. Regulation should be based on the unwilling viewer' test, where audiences may be exposed to material they may not want to see if not warned about the contents: this applies in particular to films, where people may pay to watch a film they know nothing about, or may be subjected to offensive film clips before the main feature.
The FXI also expressed its opposition to the cutting of any films. Regulation should be limited to classification only, so that viewers would be warned in advance about the nature of the film. As it stands, the provision for the cutting of films may lay the Government open to ongoing Constitutional challenges on the basis of the Freedom of Expression clause. More fundamentally, it interferes with the creative direction and vision of a film's producer. Publications on the other hand - argued the FXI - should not be subjected to classification, as the unwilling viewer' test cannot be applied so easily to publications. Parents should be responsible for regulating the reading materials of their children.
The FXI also came out against the establishment of adult premises, arguing that it will artificially stimulate the market for pornography - outlets may compete with one another to provide stronger pornography to attract more hard-core readers - and may also prompt the granting of licences in return for bribes. Distributers will in all probability be subjected to more social pressure to withdraw offensive material - and buyers may feel the weight of social dissaproval far more - if ordinary shops are allowed to carry such material; thus, ironically, fewer restrictions may lead to a more effective curtailing of pornographic materials. In reality, commercial distributers of magazines already impose their own voluntary restrictions on certain publications.
The provision for the banning of material promoting religious hatred' is particularly disturbing. The Interim Constitution protects both religious and political speech; since this right is constitutionally guaranteed, protecting people from criticism of their religion is less compelling than it was when there was no such guarantee. Religious groups also have the right to peaceful forms of protest against those who criticise or defame their beliefs in the form of petitions, pickets, marches and consumer boycotts. As it is, the Act creates an expectation in the minds of people that certain forms of speech are going to be banned - with some exemptions - rather than accepting the hard fact of robust freedom of speech, and exercising their rights to protest if necessary. The one area where the FXI was prepared to concede a restriction was with the public distribution of child pornography, including its importation. Private distribution should not, however, be banned, effectively preventing the police from ra iding people's homes looking for pornographic material. Such raids are reminiscent of the apartheid era, where politically motivated searches often took place under the guise of searching for pornographic material. The FXI also cannot condone the invasion of privacy of people's private homes.
It is also unclear whether all publications banned under the old Publications Act are automatically unbanned: the draft Act contains a transitional arrangement, which states that previously banned publications and films may be subject to reconsideration. This arrangement is an anomaly if all these publications are unbanned with the repeal of the Publications Act of 1974. Other problems relate to the appointment procedure and modus operandi of the various structures Regarding the review process, the Act states that these structures shall not decide on any application unless they have afforded a reasonably opportunity to the publishers or representatives to be heard. The party entitled to appeal is defined in extremely narrow terms; there should be scope for third parties, or public interest representatives to appeal as well. It may also be advisable to place restrictions on who may refer publications to the Classification Committee, as statistics printed in the press have led to the accusation that it has justified its own existence by providing itself with work. In its submission, the FXI questioned whether members of the various classificatory structures should be permitted to make applications to themselves. Comment was also made on the lack of detail on the appointment procedure of the Board and the Review Board, in spite of the fact that the initial commitment to appoint members in an open and transparent manner with the involvement of the public is wel come.