New Publications Bill Still a Threat to Media Freedom

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The Media Monitoring Project (MMP) has been petitioning government to change the proposed Film and Publications Amendment Bill. While it is crucial to protect the rights of children, the MMP argues that the Bill has negative implications for media freedom in South Africa. Amongst other things, it is trying to get the country’s newspaper’s to self-regulate. Chakula spoke to William Bird, the Director of the MMP, and Sandra Roberts, a Project Co-ordinator at the organisation.

The amended Film and Publications Act has been published. What is the MMP’s response to this?

The Film and Publications Amendment Bill responds to a very real need to protect children. However, since the initial version of this Bill, there have been a number of concerning elements about the Bill which pose significant threats to media freedom. The new version Film and Publications Amendment bill offers only superficial changes rather than a complete overhaul with media organisations initial concerns addressed. MMP feels that it still constitutes a significant threat to freedom of the media in South Africa, agreeing with SAHRC [SA Human Rights Commission] “that the potential for “prior restraint” may at the least create a chilling effect on the press leading to harmful self-censorship, and at worst, lead to governmental suppression of the media.” The Bill also undermines journalists’ ability to protect their sources without being prosecuted, as 24B(2) states that “Any person who, having knowledge of the commission of any offence under subsection (1) or having reason to suspect that such an offence has been or is being committed and fails to report and if necessary furnish details to the SAPS is liable to a fine or imprisonment.” It is essential that journalists are able to protect their sources in order to do the best investigative journalism that they are capable of. MMP is particularly concerned with section 1(c)iii: “[S]howing or describing the body, the parts of the body, of such a person in a manner or in circumstances which, within context, amounts to sexual exploitation, or in such a manner that it is capable of being used for the purposes of sexual exploitation.” It is possible for paedophiles to use practically any visual to ‘groom’ a child for the purposes of sexual exploitation, including line drawings or descriptions. This would mean that almost any description of almost any sexual act would be prohibited, with those who possess, create and/or distribute such descriptions – even sex education materials – liable for a fine or imprisonment. This is an extreme interpretation of the Bill, and it does not seem to be intended to be interpreted this way, but it could be which is problematic; and it may result in basic sex education information needing to be submitted for prepublication. It also seems to be out of kilter with the Children’s Act which enables children to access contraception and HIV tests as well as termination of pregnancy. It would be beneficial, given the emphasis of the current Bill on protecting children, if an additional element of exclusion was added for people wishing to be able to serve on the review board or as a review officer. As it stands people may be excluded from serving on the basis of fraud convictions. It may be valuable to add a sexual offences exclusion as well.

A film was recently banned at the Durban Film Festival by the Publications Board. It apparently contained stages images of child sexual abuse. Do you have any comment?

MMP’s position as a freedom of expression organisation is that in most instances banning is unlikely to be the best option. It would also seem to be best to judge each film in context. Not having seen the film banned at the Durban Film Festival, it is almost impossible to say whether it should have been banned. The description given by the Film and Publications Board of one of the scenes shows a young girl standing naked as men masturbate. The film makers say that the thrust of the film is against child abuse. It would seem, given these statements, that it shouldn’t have been banned. Controversial films of this nature can serve to make people realise the impact of social problems, of which child abuse is a significant problem in South Africa. Each film needs to be judged within context, which seems in this instance to be a fictional account and does not show actual abuse taking place. Also, in contrast to child pornography, the actress will presumably have given her permission to be pictured in this context. If she is indeed underage, her guardians would also have consented. The purpose of age restrictions on films is to ensure that children do not have access to content that is not age appropriate. It would seem that an age restriction would have been more appropriate to ensure that adult South African’s are exposed to films about child abuse which highlight the problem which is so prevalent in our country.

What impact will the Bill have on online publishing?

The section of the Amendment Bill governing online publishing is Amendment of section 1(i). It reads: “[A]ny message or communication, including a visual presentation, placed on any distributed network including, but not confined to, the Internet”. This provision is too broad and not practical in terms of regulation. This means that any message placed on a website will fall under the future Film and Publications Act. Although the definition of a newspaper does seem to show that online newspapers will need to be particularly scrutinised under the future act, it is uncertain how this will happen.

The MMP is currently trying to get newspaper groups to self-regulate. Can you tell me more about this?

Most responsible major media in South Africa already self regulate either through the Broadcasting Complaints Commission or else the Press Ombudsman. Sadly, not everyone knows about the mechanisms or how to engage with them. In the case of the press code, the protection of children receives little attention. Following MMP’s work with a Cape Town-based tabloid, the Daily Voice, where stills of a child porn movie were reprinted, and drawing on international best practice, the MMP has drafted a code of conduct to ensure that this kind of violation of children’s rights would not be repeated. MMP is currently in the process of securing full support for the adoption of such a code across a range of media houses, and will soon be launching a “come to the code” campaign challenging other media groups to also adopt the code.

How should the Bill be changed? Can the sinking ship be saved?

On a range of levels the Film and Publications Amendment Bill responds to very real problems experienced by children. In its current form, however, the Bill may do more harm than good. A key issue initially would be to move the location of responsibility of the Film and Publications Board to a more appropriate department. Its apartheid legacy of being located under the department of home affairs seems difficult to understand and justify in our new democracy. Further, by seeking to limit media freedom and through adopting such widespread definitions and applications, the Bill is unlikely to be effective. MMP argues that the Bill requires substantial redrafting and substantial support, especially form media and civil society. Such redrafting is, however, unlikely; which means in the best case scenario at the least it must be ensured that the clauses that may unjustifiably limit media freedom are amended so that the focus of the Bill can be where it should be to begin with: on finding the best means and methods of protecting children in relation to the media.

Content from APC website.

Read the bill online.

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