The revision of the IBA's Code of Conduct for Broadcasters

1. Introduction
The first issue is whether a code of conduct for broadcasters can be justified in terms of the freedom of expression clause in the Constitution. We submit that a case can be made out in terms of the Constitution to protect the rights of people not to be intruded upon by questionable material. It is accepted that the present code does require revision and the broad principles relating to a new code should:

2. A code of conduct and the principle of freedom of expression
The preamble as it stands refers to the individual's right to be informed and to freely receive and disseminate opinions. We have no argument with this as it expresses the right as articulated in Article 19 of the Universal Declaration of Human Rights.

However, the preamble does not give full recognition to the freedom of expression clause in its entirety in the Constitution. The emphasis is on the flow of information; freedom of expression can also relate to music, art and fiction without it being directly related to the flow of information. The latter relates to a person's right to express him/herself, which, although it may be seen as an exchange of ideas, i.e. a flow of information, is different. This right is contained in subsection (1) (c ) of the freedom of expression clause: (everyone has the right to freedom of expression which includes-) freedom of artistic creativity. In fact the clause in the Constitution could serve the preamble well and reference to it in the preamble should be an imperative.

What follows are our comments on the balance of the discussion paper. Although we believe that certain Unless otherwise stated, we have assumed that the code will be applicable to all programming including music, entertainment, news, actuality and documentaries.

Questions posed
Should the code apply to all broadcasters?
In the sense that the public broadcaster's responsibility is broader, the SABC may have a greater duty to fulfill certain obligations. However, these obligations are contained in the Charter and Part 3 of the new Broadcasting Bill . On whether or not commercial broadcasters generally should have different a different code of conduct, we submit that the same code should be applicable to all categories of broadcasters. Subscription channels, however, may well warrant a more lenient approach regarding any future watershed time.

We submit that licensees should be permitted after a period of say six months, to make representations for different codes for different classes of licensees if they find them too onerous or inhibiting their freedom of expression given the nature of their broadcasting and audience.

3. Obscenity and indecency
2 (a) Broadcasting licensees shall not broadcast any material which is indecent or obscene or offensive to public morals or offensive to the religious convictions or feeling of any section of the population.

3 (6) Reports, photographs or video material relating to matters involving indecency or obscenity shall be presented with due sensitivity, due regard being had to the prevailing moral climate. In particular, broadcasting licensees shall avoid the broadcasting of obscene and lascivious matter.

FXI submits that 2 (a) is out of step with current thinking on this matter. Just as sex and nudity should be considered in context so should material which may be construed as indecent or offensive. It should be noted that because of the difficulties associated with defining the terms indecent or obscene, this section should be removed. The words "due sensitivity" in relation to material which may offend are used in other codes and it is suggested that point 2 (b) is sufficient.

It is suggested that words such as "due regard to the prevailing moral climate" in section 3 (6) be removed as well as the last sentence which will be unnecessary if the broadcaster is treating the material with due sensitivity: "In particular, broadcasting licensees shall avoid the broadcasting of obscene and lascivious matter". Once again the words here have different meanings for different people.

3.1 Sex and nudity
The comments made below regarding offensive language and the term gratuitous, apply mutatis mutandis with regard to sex and nudity. We note too that words such as "tact and discretion" are used in other codes and suggest they too would be appropriate when considering material of this nature. It may also be worth considering providing a guideline which advises that explicitly sexual material be shown between 1h00 and 6h00.

3.2 Offensive language
The word "gratuitous" in relation to potentially offensive language appears to be common to many codes of conduct. However, FXI does not believe that it should be up to the regulator to decide as to when offensive language is appropriate or not. Undoubtedly, unless something is contained in a news item, the only occasions when offensive language may arise will be in documentary or fictional programming. This being the case, there will be an opportunity to warn the viewers who may be offended. Sometimes the use of profanities in a programme serves a specific purpose, i.e. reflecting the lifestyle of a particular group or the character of an individual. The freedom espoused in the Constitution regarding artistic creativity must also be recognized. Script writers and producers should not be unduly inhibited by the possibility of censorship. This applies as well when considering what some groups may regard as blasphemous or insensitivity to a particular religion.

Although some codes recommend that writers avoid the "gratuitous" use of language likely to offend, we submit that it is unnecessary to include this in a code of conduct as generally the broadcaster is aware of what is acceptable or unacceptable on a particular station.

Although it recognized that racist terms and terms implying disability were perceived as offensive, the Broadcasting Standards Council of Britain suggests that trying to avoid language of this nature can also result in "impeding understanding"and therefore the over-rigid observance of proscriptions on language should be avoided.

This approach is also found in the Australian code and the SBS has said that because it believes audiences should receive programmes unaltered, strong language will only be removed from original programmes if it use is gratuitous and likely to cause significant offence to viewers.

Regarding religious sensitivities, we agree with the IBA discussion paper that previously the broadcaster (especially pre-1994) was unduly sensitive to any matter relating to Christianity but did not apply the same criteria for other religions. Despite this, we do not believe that it is necessary to introduce regulations regarding religious sensitivities. A point of departure may be to take the approach that the Australians have taken and that is to advise broadcasters to seek advice from different sources if in doubt about material which may be offensive to a religious community.

3.3 Issues of taste and stereotyping in humour
FXI believes that taste is a subjective matter and that no regulations can be introduced to regulate a standard which cannot be defined. Although we do believe that stereotyping, particularly of race and gender, is an issue in the media, we do not believe that regulating against it would resolve the matter. Furthermore FXI is concerned that political correctness may stifle all creativity.

4. Incitement to hatred and endangering the public order or safety of the state
Regarding incitement to hatred, FXI does not believe it is necessary to include any specific reference to this issue. FXI believes that the provisions of the Constitution and the Film and Publications Act are sufficient to deal with these issues. These are difficult concepts to define and the fewer attempts that are made in regulations to interpret them the better for freedom of expression and freedom of artistic endeavour. FXI endorses the fear that this type of clause could lead to the curtailment of free political activity and the coverage thereof and draws attention to the fact that although laws existed under the previous government to prevent incitement of racial hostility, they were not used to improve race relations but instead to silence opponents of apartheid .

Endangering the public order or the safety of the state Section 2 (a) states that broadcasters shall not broadcast any material...likely to prejudice the safety of the State or public order or relations between sections of the populations.

The fact that this is included in the South African code is symptomatic of the highly militarised and paranoic political environment of this country prior to the 1994 elections. We regard this section as unnecessary and thus recommend that it should be eliminated from the code. In his submission, to the Justice Portfolio Committee, on the Open Democracy Bill, Laurie Nathan, Director of the Centre for Conflict Studies, illustrates that the broadcaster has a duty to ensure that citizens are informed on security matters, some thing the broadcaster might feel ambivalent about should section 2 (a) remain in the code.

5. Violence
2(b) Broadcasting licensees shall not, without due care and sensitivity, present material which depicts or relates to brutality, violence, atrocities, drug abuse or obscenity.

In most codes of conduct, it is accepted that violence will always be editorially or dramatically justifiable . Within a news context, the Australian code says decisions on what can be broadcast must be based on normal judgement of newsworthiness and reporting value, together with a proper regard for the reasonable susceptibilities of audiences to the detail of what is broadcast.

A report Violence and the Viewer by the Joint Working Party on Violence on Television notes that violence is a fact of life. "So long as it exists in society and the world, television programmes should reflect it and report it, both in fact and in fiction. To do otherwise would be substantial disservice to society."

We note that the code includes the words "due sensitivity" and would trust that the broadcaster would follow this guideline. The guidelines should also point out the undesirability of programming which results in repeated exposure to violence. Encouraging broadcasters to introduce an editorial policy which ensures that generally a message that violence is not the preferred way of resolving conflict can also counteract the negative implications of violence in the media.

A international survey prepared by the Broadcast Standards Council indicates that pre-programme announcements on the violent content of the programme was the manner in which viewers would like to have issue of violence dealt with. This we would agree is the preferred way of dealing with the matter and it is particularly important to ensure that prior warnings are given before the watershed hour. FXI, however, would not oppose an inclusion of a directive advising that violent features should be necessitated by the story plot or advising that broadcasters avoid gratuitous violence so long as these are only guidelines and not anything prescriptive.

Violence and the Viewer also makes special reference to the need for media education as a subject in schools to promote what the authors term "critical viewing". It is submitted that all South African stakeholders be encouraged to explore how to make this suggestion a reality for it will make children generally more selective in their viewing choices as well as ensure that they are able to reject violence in broadcasting.

6. Children
FXI accepts that the IBA and the Broadcaster have to take cognizance of the invasive nature of the broadcasting medium and the need to protect the susceptibilities of young children. As indicated earlier we believe that apart from regulations pertaining to children's programming generally, the system of introducing a watershed hour is appropriate to deal with ensuring that parents are able to control the types of programmes their children watch. The generally accepted time is 21h00. However, it is also advisable to have pre-programme information or prior warnings which will also offer guidance before this time .(see also above our general comments on violence)

It is also advisable that advance programme advertising does not include excessive violence or content generally unsuitable for children if it is to be run prior to 21h00.

We also, however, believe that to totally omit violence of any nature from children's programmes would not be appropriate. It would appear from research undertaken that children understand violence differently depending on their age. They also react differently to different content and editing techniques. Ultimately children learn a media language and gain a sophisticated critical understanding of the media. This can be enhanced by providing education on the media (see above section on violence). The lessons learnt from research undertaken in other countries should be more closely examined before further guidelines than those recommended above are undertaken.

Clause 2 (c ) should be retained and should have the added proviso that broadcasting should avoid the presentation of dangerous behaviour easily imitated by children or the gratuitous depiction of children in way which would impair their dignity.

7. News and current affairs In regard to news, current affairs and documentaries, the provisions of section 3 should be presented as guidelines for broadcasters with the appropriate injections of the terms of fair and fairness in the place of objectivity.

Section 3 (2) should be added as (d) and taking into account that balance can be achieved over a period of time, should incline to the concept of fairness.

In regard to comment, the provisions of section 4 should be inserted in the code as guidelines for those broadcasters who wish to include comment in their programming with the extra guideline that where people or institutions or their views are attacked on issues of public importance, they should, if they request it, be afforded a reasonable opportunity to reply and that as far as reasonably possible the reply should be of roughly equal time. In this regard section 3 (5) can be omitted.

In regard to privacy sections 7 and 3 (7) should be retained as guidelines. In regard to depiction of violence in this context, the guidelines should state that when broadcasts depict such scenes a warning should be broadcast.

8. Privacy
Regarding section 8, we can see no compelling reason to retain it.

9. Drug abuse, alcohol and smoking - see comments under 3


10. Hypnotism and exorcism
It is undesirable that there should be guidelines to broadcasters to avoid showing a hypnotist performing straight to camera or broadcast material designed to produce a hypnotic state in viewers or involving subliminal perception.