Drafting a new film and publications Bill for South Africa

Appointment of Task Group

In August 1994 the Minister of Home Affairs, Dr M Buthelezi, appointed a Task Group independently to draft a new Act to replace the existing Publications Act of 1974. A new Act was thought to be necessary because the existing Act apparently lacked constitutionality in terms of the Fundamental Rights Chapter of the Constitution of the Republic. There had been much uncertainty in the minds of members of the publishing business, who both formally and informally had challenged the validity of the existing Act.

In addition to the Director of Publications and the Chairperson of the Publications Appeal Board, who were appointed ex officio, seven members of the public were appointed to the Task Group and a previous Chairperson of the Publications Appeal Board was appointed as Chairperson. The intention was not to appoint a Task Group which would be representative, but to employ the services of members of the public who have specialized knowledge in media matters and media law. The experience of some of the members in religious organisation, education, mediation and management generally, was regarded as an added benefit.

The validity of the Publications Act of 1974, as amended

After consideration of especially section 8 (equality), section 10 (human dignity), section 13 (privacy), section 14(1) (religion, belief and opinion), section 15 (freedom of expression), section 22 (access to court), section 24 (administrative justice), section 33(1) (valid limitations to freedoms) and section 35 (interpretation of statutory law and the application of common law) as well as public international law (The Universal Declaration of Human Rights, The International Covenant on Civil and Political Rights, The International Convention on the Elimination of all Forms of Racial Discrimination and the African Charter of Human and Public Rights), the Task Group concluded that several provisions of the Publications Act were in conflict with Chapter 3 of the Constitution. Mere amendment of this Act would not remedy the situation. In coming to this conclusion, the Task Group also took cognisance of constitutional judgments in the United States of America, Canada and Germany.

On the whole the Task Group came to the conclusion that the present Publications Act intrudes upon the freedom of choice of adults in an unreasonable manner by making bannings widely possible; employing vague terminology; generally regulates the private domain of an adult too strenuously; gives preference to the Christian religion, which is in conflict with the equal protection clause; provides for political intervention by the Minister in certain instances; does not place sufficient emphasis on freedoms of artistic expression and of scientific research; and contains and could lead to procedurally unfair administrative action.

The approach to drafting a new film and publication bill.

The Task Group was aware that it was faced with a daunting task which was made especially difficult by the fact that it was not possible to know how the Constitutional Court would approach this kind of legislation. Would the Court approach it in the style of the American Supreme Court, which requires the various states to be precise in their legislation, and has struck down vague terminology, for example, in the Hudnut case,1 or would its approach be like that of the Canadian Supreme Court2 which had given a restricted interpretation to the words "undue exploitation of sex"?

Although the Task Group realised that a rigid delineation of the criteria could be too restrictive, it came to the conclusion that the new Act should be more precise than the present one. The stage had been reached at which a consideration of the structures under the present Publications Act, research into related topics and judgments in other countries have highlighted certain factors which are perceived to be harmful. Although terminology which reminded of legislating for morality was still present in these countries, a clear movement away from morality to harm, was evident. It would therefore be increasing the public's uncertainty if it were again to employ vague terminology such as "indecent", "obscene" or "offensive".

However, it is impossible to be absolutely precise in this area - as pointed out by the European Court of Human Rights3 and confirmed by several interviews which were held by the Task Group with international scholars and jurists in India,4 Canada,5 Australia,6 Egypt,7 Zimbabwe8 and the USA9 and as appeared from legislation in many other countries10 as well as section 184 if the German Criminal Code as interpreted by the German courts.11

Two approaches were therefore combined: as far as possible, the factual circumstances upon which a refusal of classification could be based were delineated, while words such as "explicit" and "prolonged", which emphasize the discretion which the adjudicator must exercise, were added.12 Reference to words such as "indecent", "obscene" and "offensive" was avoided. The term "lewd" is employed in one instance, but even the US Supreme Court13 approved of its use, subject to its being given a narrow interpretation, in the context of child pornography. By referring to artistic and literary merit as exemptions, a certain amount of evaluative discretion is allowed for adjudicators. Although art and science are elusive concepts, it is believed that evidence would lead to reasonable certainty in this area. The bona fide technical, professional and scientific nature of publications has also been the subject of a judgment of our Appellate Division in this context.14 Terms such as "on the whole" and "predominantly" were also employed so as to exclude any possibility of the Task Group's being considered to have supported the "isolated passage" approach.15

The Task Group considered several definitions insofar as the protection of religious feelings is concerned.16 It was felt that if this area is deemed liable to restriction, the criterion should be formulated in such a way that subjective reactions from the intolerant were not elevated to law by phrases such as "offensive to the religious convictions". The emphasis should be on the nature of the attack, and in this regard the Task Group was guided by Canadian, Northern Irish, Irish and Indian legislation.

The Task Group stated that its priority was to draft an Act which would conform to Chapter 3 of the Constitution. In so far as freedom of speech and freedom of religion are concerned, this Chapter is the supreme law and even if a majority of South Africans were not in favour of this approach, this is a matter which should be taken up by the Constitutional Assembly in rewriting Chapter 3; which, in this respect, seems unlikely. It was also borne in mind that the Constitution prescribes that the limits to the said basic rights should be reasonable and justifiable in an open and democratic society based on freedom and equality, and should not negate the essential content of the rights in question. Freedom of religion and political speech may, furthermore, only be limited if the limitations are also "necessary".

This kind of terminology could certainly not be associated with indiscriminate bannings, intolerance and interference with freedom of choice of adults. It was therefore believed that all regulation in the area of limitation of rights should be well-reasoned and based on a compelling state interest in, for example, maintaining peace or the protection of children. The prevention of harm or, at least, of clearly perceived harm, should be the basis of any regulation in this area. This is especially so in the area of harm to children where any doubt should go in favour of the protection of children. Sweeping statements that all sexually explicit material led to degradation or has been shown to cause or contribute to rape was, however, rejected as unscientific and based on especially (in the case of rape) the questionable statements by psychopathic killers and rapists. That non-violent sexually explicit material is not harmful to adults has been accepted by the Canadian Supreme Court,17 the Indecent Publications Tribunal of New Zealand and this point of view is supported by the vast majority of scientists in this field.18

In the case of degradation of the dignity of women, there is wide controversy. That degradation of women can be a criterion here, has been accepted by the Canadian Supreme Court in R v Butler19 and also finds support in Indian legislation. The Task Group came to the conclusion that the standard set by the criterion of degradation of women is too vague to withstand constitutional scrutiny. If the words "a substantial risk of harm" were to be added to degradation of women, the criterion could be acceptable but then the accent would be, as appears from judgments after R v Butler, on the risk of harm.20 This criterion would not meet the claims of feminists who require a much wider protection in this field. It was also not clear to the Task Group whether degradation could be based on mere explicit sexual material or explicit nudity. Criteria which the Task Group proposed for absolute bannings (the so-called XX material) would go far in protecting women (in the case of a crude mixture of sex and violence and in the case of certain forms of explicit violence). The matter should be researched further.21

The Task Group came to the conclusion that in a new freedom-orientated South Africa, a new Film and Publication Act should promote the optimum amount of freedom for adults, and protect children against what is harmful or disturbing, bearing in mind that the insight of the modern child should not be under-estimated and the roles of the parents and school should be given particular weight.

Although it was realised that Chapter 3 of the Constitution represents the supreme law in the Republic of South Africa in this respect, the Task Group deemed it necessary to request representations from the public on certain crucial issues which it had identified. Although more or less 1600 representations were received, many failed to address the issues raised in the advertisement. Petitions against pornography were also handed to the Task Group at its public hearings. The vast majority of representations amounted to emotional statements against pornography. Much accent was placed on (unscientific) research claiming that rape is inter alia caused by pornography.

The possibility of having a survey of opinions carried out by experts, was considered. The Task Group concluded, however, not only that costs were prohibitive, but also that experience in this field indicated that it is extremely problematic to rely on such a survey in the case of matters involving morality and religion. The variety of circumstance is so vast that it is impossible to reach firm conclusions as to what is acceptable or not acceptable. A recent American study also points to the predictability of the outcome of surveys in this regard.

The Task Group came to the conclusion that in a new Act special attention should be given to law enforcement. The structure set up must take care to inform the public as to the meaning and effect of classifications and age restrictions. Some form of co-ordination in applying the decisions of the structures must be the duty of an officer appointed by the proposed administrative structure.

The Task Group also consulted with foreign experts in this field in Australia, New Zealand, India, Egypt, Zimbabwe, Canada, Great Britain and the USA. Ultimately consultations were held with a wide range of organisations and state officials who have an interest in film and publication control. In March the draft Bill was published for comment. A further 450 representations were received. A supplementary report was handed to the Minister and a few amendments were made to the Bill - mainly to ensure increased protection for children.

Conclusions reached

A National Structure

It would be extremely costly to implement a policy whereby each province would classify films and publications individually. If there is to be administrative control it should be managed on a national basis. Licensing authorities within the provinces would, however, have sole authority in deciding whether adult premises would be allowed. Obviously such authorities would have to act within the ambit of the Constitution and would not be authorised to limit commercial activity and freedom of choice of adults unreasonably.

A Board and Review Board

An administrative structure funded by the State, but which functions independently from Government, and which draws on available expertise, is more appropriate in this field than a system which is based solely on criminal law. The consequences of criminal prosecution in the field of freedom of speech - including heavy fines and even imprisonment - could be unreasonable and could be perceived to be too harsh. However, a censorship body, in view of all the implications carried by the word "censorship", is also unacceptable.

The Task Group, therefore, opted for an administrative Board with appeal to a quasi-judicial Review Board. As far as publications are concerned, it was believed that the system should be based on complaints only, and that the administrative structure should not be authorised to investigate matters on its own, because such an approach would violate the fair procedure rule in section 24 of the Constitution.

As far as films are concerned, distributors will have to apply for classification. A comparison of 30 systems across the world established that pre-classification of films is accepted almost internationally for practical reasons. A few countries have industry-based control22 but they all classify before the films go on circuit.

The Task Group also proposed that appeals to the Supreme Court from decisions of the Review Board would be possible where a film or publication is prohibited or limited to adult shops or theatres.

Differences From Past Structures

Although the structures to be set up bear similarity to structures under the present Act, they are, however, significantly different from these structures. The manner of appointing members of the Board and the Review Board is democratised and aimed at independence. Parties are heard before any limitation is imposed, and the Executive Committee is not permitted to refer any matter to a classification committee without an application. The area of prohibition is limited to certain matters, including child pornography, explicit mixture of sex and violence, explicit sexual bestiality, the explicit infliction of extreme violence or cruelty and religiously aggressive material. All of these matters are anyway exempted in the case of bona fide artistic, religious or literary works or bona fide opinion on religion, which fall outside the ambit of the Act. The distribution of publications and films containing defined explicit sexual activity is limited to adult premises.

As far as sexuality, violence and language are concerned, the written word shall no longer be subject to total prohibition, but distribution by way of adult premises is provided for.

Once again, the bona fide artistic and literary exception is applicable; in the case of publications, age restrictions and sealed wrappers are employed to protect children, and a system of classification of films and videos - which has been operating since September 1992 - should be refined further so as to inform parents of the nature of films and videos, and adults of sensitivities which may be offended by a film or video.

Criminal Sanctions

That criminal sanctions are provided for where a person knowingly violates a decision of the Board. The requisite of intention was decided upon since negligence would, in the opinion of the Task Group, amount to too strict a limitation on freedom of speech and of choice. In so far as a publication is concerned, the intentional distribution of XX or X18 material (outside adult shops) is made an offence, even if the Board has not decided upon it yet. If the Board had previously decided that the material does not amount to XX or X18, it would amount to a defence.

Public Entertainment

Public entertainment and theatre should no longer fall under a new Act. Practical difficulties under the present Act led to this conclusion. Common and statutory law provide sufficient safeguards.

Television

Television should not fall under the Film and Publication Act, as is the case presently. Television, as a mass medium, differs substantially from films screened in theatres, as well as from videos, which are rented from video distributors for personal use. The Independent Broadcasting Authority Act 1993 provides for its own control mechanisms, and the Code for broadcasters is to be found in Schedule 1 of that Act. Section 56(2) of that Act also provides for the recognition of industry-based control. The National Association of Broadcasters has set up the Broadcasting Complaints Commission of South Africa and it has been operative since August 1993.

The Indecent Photographic Matter Act of 1967.

This Act, which criminalises possession of indecent photographic matter, should be repealed. Not only are its terms vague and open to abuse, but the concept of a possession ban, in the absence of clear harm, unjustifiably limits the fundamental right to privacy. However, the Task Group proposed that the possession of child pornography be prohibited by way of criminal law. Numerous states in the USA have chosen this course of action and the Supreme Court has accepted it as constitutional.23 A majority of the members of the Task Group supported this provision for South Africa. Possession of other forms of pornography do not, in the view of the Task Group, give rise to concerns which are pressing and substantial. Possession for purposes of distribution does, however, fall foul of the proposed Bill. Prosecutions and search warrants should, according to the Task Group's proposal, only take place, or be issued, on the written authority of an attorney-general.

Focus on Distribution

The proposed Bill is directed at the prohibition or limitation of the distribution of certain materials. To prohibit the importation of a publication could be perceived to be prior restraint. "Distribution", however, includes holding for the purposes of sale, etc. The above implies that a member of the public could import a film or publication for private use, except in the case of child pornography.

Specific issues addressed by the Task Group

Children

The Task Group decided that in view of wide research in this field, age restrictions of up to the age of eighteen should be imposed on publications and films which are harmful or disturbing to children in the relevant age groups. It was decided not to be prescriptive in this area and leave the decision as to what is harmful or disturbing to the experts appointed under the Act. Such experts would necessarily take modern research and trends into consideration.

Especially in so far as children are concerned, the Task Group expressed its concern as to the enforcement of any new legislation in this regard. The proposed Board cannot merely make the rules, it must explain to the public how the rules function, and explain the meaning of the warnings and classifications which are being imposed. To this end a co-ordinating officer should be appointed by the Board. It would be his or her task to inform the public and also co-ordinate measurers for the enforcement of the Act.

As far as magazines displaying nudity are concerned, the Task Group believed that the present system of age restrictions should be continued. The plastic wrapper condition is still useful, in spite of the criticism that some shops do not always abide by it. The intention is to discourage children from browsing through such magazines.

Although some criticism of adult bookshops, video shops and cinemas was expressed in some of the representations, there is consensus among film and most magazine distributors that these outlets seem to be a workable solution. Children under eighteen years of age would be prohibited from entering these shops and the owner could lose his or her licence if found guilty of having knowingly allowed children into the shop or distributed material to children.

Adults

The point of departure in an open and democratic society based on freedom and equality should be that adults are free to decide for themselves; the State should not intervene unless absolutely necessary. The Task Group accordingly took the utmost care not to intrude unnecessarily in imposing limitations on adults.

The Task Group concluded that child pornography, an explicit mixture of sex and violence, sexual bestiality and explicit forms of extreme violence should fall in the so-called XX category - which would be prohibited. The Task Group was confident that the first two subjects had been shown to be deleterious whilst in the last two categories it decided that even if there is no convincing scientific evidence in this regard, the non-consenting nature of bestiality and the overwhelming public opinion against certain forms of violence in South Africa, justified a prohibition in these areas. These prohibitions would, however, not be applicable to bona fide art, literature and scientific works.

It was, however, concluded that the present state of research on the question whether explicit sexual material degraded women is unsatisfactory and that the validity of such a prohibition would be constitutionally risque. Even the Canadian Supreme Court in R v Butler24 has added the requirement of "a substantial risk of harm". In subsequent prosecutions it appeared that this aspect was of particular importance and that it was difficult to satisfy this requirement. Mere degradation was therefore insufficient; it had to create a "substantial risk of harm".

In so far as "explicit sexual conduct" in publications and films are concerned, such publications and films are limited to adult premises. The Task Group also proposed that the sale of written pornography should be limited to adult premises. The emphasis should be on material which, judged as a whole, predominantly and explicitly, and without any literary merit, describes sex with children, a crude mixture of sex and violence, explicit sex, and bestiality. Once again bona fide art and literature would be excluded.

Another vexing issue with which the Task Group has had to grapple, was whether the promotion of racial hatred in a publication or film should be a ground for a prohibition in terms of the proposed draft bill. Early in 1994, in preparation for elections which would be open and free, Parliament repealed section 47(2)(d) of the Publications Act 1974. This paragraph prohibited material which is harmful to the relations between sections of the population. Most other systems leave the regulation of this kind of material to criminal law directly. The Task Group accordingly decided that it would politicise the new structure if race relations were once again to be included in a new Act. It pointed out, however, that this matter is a question of policy to be decided upon by Parliament itself. Parliament could then, if it so wishes, include the promotion of racial hatred in the religious hatred schedule and authorise the Board to prohibit a publication or film which fell within this category. Otherwise it could directly criminalise such publications and films by way of a statutory provision which would prohibit any person to screen a film in public or distribute a publication which is likely to promote racial hatred. So as not to place a limit on bona fide art, literature or science, these matters should, however, be exempted from such a provision. Age restrictions would, however, be applicable.

Art and Literature

Section 15 of the Constitution guarantees freedom of speech and expression, which shall include freedom of the press and other media, and freedom of artistic creativity and scientific research.

The Task Group came to the conclusion that there is no compelling and substantial Government interest in denying absolute protection to art and science in so far as adults are concerned. Artistic expression is, like political speech, central to the cultural and political vitality of a democratic society. Although "art" is an elusive concept, it is believed that once the Board, or Review Board, having heard expert evidence, is convinced that a publication or film amounts to art or literature, it should find in its favour despite its content. The history of censorship has shown world-wide, time and again, that art and literary works have eventually been liberated from earlier restrictions. Canada, Great Britain, the USA and Germany all exempt the arts from control. Whilst the rather enticing proposition is to regard art only as a factor to be weighed against other factors, the Task Group came to the conclusion that if the preponderance of expert opinion classifies a film or a publication as bona fide art or literature, any measure taken by the state to limit its distribution or display to adults would be disproportionate to the slight, if any, possibility of harm. Restrictions on sale and display could, however, be imposed to protect children.

The term "bona fide" was chosen to indicate objectively ascertained art or literature, since the USA test of "serious" and "genuine" does not seem to be as well-known in South Africa as "bona fide". "Bona fide" must not be understood to be based on the purpose of the writer from his or her point of view. Objective appraisal by experts should be the test and the publication or film itself should be the object of appraisal.

Adult premises

A necessary corollary to freedom of choice by adults is that certain materials which - despite their explicit sexual nature - are not harmful should be available. Yet they should be available in such a fashion that the opportunity for children to exercise that choice is negated. Although the concept of adult bookshops, theatres and video shops has been subjected to severe criticism they should be managed rather than prohibited in a freedom-of-choice-for-adults-democracy.

In the USA these shops are subjected to zoning restrictions because their presence tends to cause the depreciation of surrounding property. Domestic area, schools and religious buildings are usually protected from these shops by local regulations prescribing that the shops may not be sited in domestic areas or, in any case, not within a specific distance from such an area, a school or a temple, mosque or church. In Canada, under provincial legislation, zoning is also allowed. In Germany a similar zoning policy applies under federal law. Adult shops are not allowed in areas purely domestic areas.

Notes

1. 771 F 2d 323 (7th Cir. 1985) affirmed 475 US 1001 (1986); James Lindgren “Defining Pornography” (1993) 141 University of Pennsylvania Law Review 1153.

2. R v Butler 1992 (1) SCR. 452.

3. Eg Kokkinakes v Greece (3/1992/3478/421) 15.

4. Retired Chief Justice Bagwati and Retired Chief Justice Mishra in interviews by the Chairperson and Adv Huma with them.

5. Interview by the Chairperson and Adv Huma with inter alia Sopinka J in Ottawa September 1994.

6. Interview by Dr Coetzee with authorities in Australia and see the Classification Bill 1994 (Schedule) - April 1994.

7. Interview by Prof Morkel and Mr Tredoux with Egyptian authorities - September 1994.

8. Contact by Dr Coetzee with authorities - September 1994.

9. Where accent is placed on precise wording - interview by Chairperson and Adv Huma with Prof Floyd Abrams in Buffalo - September 1994.

10. Compare the 1993 New Zealand Act and 1994 Australian Bill.

11. Schonke-Schroder Strafgetzbuch Kommentar 184

12. See the questionnaire results of Lindgren op cit note 1 1153 at 1197 where the words “graphic sexually explicit” were regarded as the least vague terminology compared to terms such as “prurient interest”, “lacks serious literary ... value”, “patently offensive”, “dehumanized”. “Prurient interest” was regarded as most vague by 45% of the group and “graphic sexually explicit” only by 2%.

13. Osborne v Ohio 110 S Ct 1691 (1990); Quigley “Child Pornography and the Right to Privacy” 1991 Florida Law Review 347.

14. Publications Control Board v CNA Ltd 1977(1) SA 717(A).

15. Rejected by Ogilvie Thompson CJ in Publications Control Board v Republican Publications (Pty) Ltd 1972(1) SA 288(A).

16. Canadian, Northern Irish, Irish and Indian laws, as well as American doctrine were studied.

17. R v Butler supra note 2; see Publications Control Board v CNA supra note 15.

18. 1991 New Zealand Gazette 1464 (Decision no 4/91): “In our view the above statements suggest that Dr Court’s criticisms are based on a personal moral stance. They appear to be based on an overall disapproval of sexual promiscuity, homosexuality and any sexual behaviour which deviates from monogamy within heterosexual marriage Depictions of moral codes which differ from those of an individual or group cannot in a Western-style democracy be used as the basis for the prohibition of materials. Moreover distaste in itself, is an insufficient ground to classify Penthouse (US) as unconditionally indecent”; Pornography : Impacts and Influences (Commissioned by the Home Office Research and Planning Unit 1990).

19. Supra note 2.

20. R v Smeenk 1993 150R 549 (Court of Appeal, Ontario).

21. Also compare Carlin Meyer “Sex, Sin and Women’s Liberation : Against Porn-Suppression” 1994 Texas Law Review 1097; and for criticism on the Butler degradation criterion, see Wu & McCaghy “ Attitudinal Determinants of Public Opinions toward Legalized Opinions toward Legalized Pornography” 1993 Journal of Criminal Justice 13; Lamont “Public Opinion Polls and Survey Evidence in Obscenity Cases” 1972-3 Criminal Law Quarterly 135.

22. USA, UK and Germany.

23. Osborne v Ohio 110 S.Ct 1691 (1990); Lu “The Role of State Courts in Narrowing Overbroad Speech Laws after Osborne v Ohio” 1991 Harvard Journal on Legislation 253; Quigley op cit note 13.

24. Supra note 2.