The Film and Publications Appeal Board (Appeal Board) recently delivered a judgment in favour of the Out in Africa Gay and Lesbian Film Festival (OIA) in respect of the international award winning film “XXY”, directed by Lucia Puenzo. The film was banned outright by the Film and Publications Board (Board) on grounds that it constituted child pornography.

Certain scenes in the film depicted teenagers under eighteen years of age engaged in simulated sexual intercourse. This formed the basis of the Board’s objections and subsequent banning of the film. The actors were however both older than eighteen when the film was shot. The fact that the film contained scenes of minors engaged in sexual conduct was not disputed. What was disputed was the contention that firstly, the scenes amounted to pornography and secondly, “child pornography” as defined in the Films and Publications Act (Act) and interpreted in accordance with the Constitutional Court’s approach to the question of what constitutes child pornography in the case of De Reuck v Director of Public Prosecutions in 2004.