SA Board passes vital test
Exhibition is art, not porn - rules Publications body
The South African Films and Publications Board, established under the Films and Publications Act, 1996, which came into force in May [See SAMLB, Vol. 3, No. 2], has passed its first major test.
In July, the Child Welfare Association complained to the Board about an art exhibition, Viscera, at the art gallery of Rhodes University in the Eastern Cape, which included drawings and paintings of children in the nude and at times showing their genitals. The exhibition had been on for several weeks without any complaint, until attention was drawn to it when certain media labeled it Achild porn@.
Members of the Board=s executive then visited the exhibition but declared it bona fide art. They however required the exhibitors to carry a warning regarding the nature of the exhibition, and imposed an age restriction of twelve years.
The government was clearly displeased by the Board=s accommodating attitude. One minister openly declared that she would have liked to see the exhibition banned. But the Board asserted its independence and, after a second meeting, confirmed its original decision.
Background
The Films and Publications Act was passed in 1996. It replaced a number of pieces of legislation inter alia the Publications Act, 1974, and the Indecent or Obscene Photographic Matter Act, 1967. The Act did not come into force until earlier this year after the appointment of members of the Board.
The Freedom of Expression Institute remains fundamentally opposed to the Act because it legislates censorship and contains several problematic areas. However, some of the initial disquiet was allayed when members of the Board=s executive, at a meeting with FXI and Article 19, emphasized that they saw themselves primarily as regulators rather than censors.
Art or smut? One of the works exhibited in Viscera.
The Act, in line with s 16 of the Constitution, limits freedom of expression by prohibiting propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.
The Act provides for the classification of certain films and publications. If a film or publication receives an XX classification it is effectively banned.
Schedule 1 (1) (a) provides that a publication shall be classified XX if it contains a visual presentation, simulated or real, of a person who is, or is depicted as being, under the age of 18 years, participating in, engaging in or assisting another person to engage in sexual conduct or a lewd display of nudity.
In terms of the Act Apublication@ has an extremely wide definition and includes drawings, pictures, illustrations or paintings, prints, photographs, engravings or lithographs.
Art and science publications are exempt from classification in the XX category but there is an exception in the case of publications described in Schedule 1 (1) (a), which is intended to protect children and to prevent the spread of child pornography.
Vital role
Section 19 of the Act explicitly states that a complainant cannot take the Board=s decision on review, but in the present case the Board decided that it would allow such an appeal.
This decision was based on section 195 (g) of the Constitution (the right to administrative action that is transparent and provides the public with timeous, accessible and accurate information).
The Board also believed that constituencies such as the Applicant had a vital role to play in the protection of children and must be accommodated to the extent possible.
Justifying works of art
The author of this article, who was present for the hearing, was impressed with the manner in which the Review Board heard the appeal, the expert testimony presented, and the artist=s argument in his own defence.
It was however disconcerting that an academic artist and university lecturer in fine art should have had to argue why his art should not be censored. Notwithstanding this, he defended himself most effectively, particularly considering the emotional hysteria surrounding the issue.
Ruling
The Review Board ruled that, with due consideration to constitutionally-entrenched rights, the spirit of the Films and Publications Act, 1996, the interests of different sectors of society, and the context and intention of the work, the works were appropriate for all ages, subject to parental guidance.
The Board said: AAdditional considerations regarding the context within which the works are presented included the bona fide art credentials of the artist and the gallery, the need for dialogue around child sexuality, the potential educative role of the work and the rights of children.
The Board found that the work is not pornographic in nature. The depiction of aroused genitals in this case, is not, in the considered opinion of the Board intended to arouse a sexual response.
The Board accepted that the artist=s intention was to reflect the individual process of sexual development in a society in which sexuality was often governed by taboo. Furthermore, the Board found that the work was neither exploitative, nor harmful, and therefore did not justify stricter classification.
Laura Pollecutt
Freedom of Expression Institute
