PRESENTATION ON THE FILMS AND PUBLICATIONS AMENDMENT BILL [B27-2006]

1. PRESENTATION ON THE FILMS AND PUBLICATIONS AMENDMENT BILL [B27-2006]

2. PRINT MEDIA SA TEAM • Trevor Ncube • President, Print Media SA • Chief Executive Officer, Mail & Guardian • Independent Newspapers represented by: • Tony Howard, CEO • Nazeem Howa, Group Operations Director • Johnnic Communications represented by: • Mike Robertson, CEO, Johncom Media Investments • Mondli Makhanya, Editor, Sunday Times • Francois Groepe, CEO, Media 24 Newspapers • Ingrid Louw • Chief Executive Officer, Print Media SA • Ashoek Adhikari • General Manager: Legal, Media 24 • Janet MacKenzie • Legal advisor to Print Media SA

3. PRINT MEDIA SA • Non-Profit Organisation • Our members are – • The Newspaper Association of South Africa (NASA) • The Magazine Publishers Association of South Africa (MPASA) • The Association of Independent Publishers (AIP) • Represents the interests of a broad range of media publications – • Daily, weekly and community newspapers • Grassroots newspapers and magazines • Consumer magazines • Trade magazines • Technical magazines • Professional and specialist magazines

4. PRINT MEDIA SA • Represents the collective interests of its members in • Negotiations with representatives in advertising, marketing, printing and paper industries • Campaigns that promote print media • Industry awards • Advancement of skills development and industry training • Promotion of community and small commercial media initiatives • Discussions and negotiations with Government on matters of common interest

5. THE FILMS AND PUBLICATIONS ACT 65 OF 1996 • Section 22 (3) of the current Act provides for an exemption from the terms of the Act for newspapers published by publishers who are members of the Newspaper Press Union of South Africa • The Newspaper Press Union of South Africa has subsequently been succeeded by the Newspaper Association of South Africa (NASA) • The newspaper exemption has been in place since the promulgation of the current Act in 1996 and prior to that the same exemption was contained in the Publications Act, 1974 • In return for the exemption the print media industry agreed to adhere to a system of self-regulation

6. PRESS OMBUDSMAN – APPEALS PANEL • To give effect to the requirement of self-regulation the Press Ombudsman was established and has jurisdiction over 640 newspapers and magazines • There is also a Press Appeals panel • The print media industry has recently decided to add public representatives to the Founding Bodies Committee of the Press Ombudsman and the Appeal Panel and to change the organisation's name to the Press Council of South Africa • The system has a proven track record in dealing with contraventions of the Press Code

7. THE REMOVAL OF THE EXEMPTION • Clause 21(c) of the Bill proposes the removal of the exemption for newspapers by deleting section 22(3) of the current Act in its entirety • As a result of the withdrawal- • newspapers will be subject to the classification procedures and criteria detailed in section 16 of the Bill • any owner of a publication who fails to comply with section 16 will be subject to the criminal sanctions in sections 24A and 24B

8. THE CLASSIFICATION PROVISIONS OF THE BILL • There are two ways in which newspapers, represented by NASA and magazines, represented by MPASA will be subject to classification- • Section 16 (1) which provides that any person may request that a publication be classified • Section 16 (2) which makes it mandatory for all publications which contain visual presentations, descriptions or representations of the items listed in section 16(2)(a) to (d) to be submitted in the prescribed manner for classification

9. THE CLASSIFICATION PROVISIONS OF THE BILL • In terms of section 16(2) the following visual presentations, descriptions or representations must be submitted for classification- • sexual conduct • propaganda for war • incitement to imminent violence • the advocacy of hatred based on any identifiable group characteristic • The reference to "sexual conduct" will result in the print media having to submit all news reports which contain descriptions of sexual assault, indecent assault, child abuse, explicit infliction of sexual or domestic violence and rape to the classification committee prior to publication • The wide definition of "sexual conduct" will also mean that all articleson sexual intercourse regardless as to whether they are educational, artistic or literary works will also have to be submitted to the classification committee

10. THE CLASSIFICATION PROVISIONS OF THE BILL • The inclusion of "propaganda for war" or "incitement to imminent violence" will mean that any news report, photograph or article dealing with or depicting declarations of war, violent demonstrations, violent incidents or civil unrest will have to be submitted to the classification office for classification • The reference to "the advocacy of hatred based on any identifiable group characteristic" will mean that if a newspaper were to report on some person advocating hatred and quote from what had been said this will have to be submitted to the classification office for classification • Reporting on public utterances of ordinary persons, religious leaders or even terrorist organisations that could invoke hatred of a group of people would also have to be submitted to the classification office for classification

11. THE CLASSIFICATION PROVISIONS OF THE BILL • Section 16(4) of the Bill details the classification criteria which will be applicable to publications once they have been submitted to the classification committee pursuant to sections 16(1) and (2) of the Bill • Section 16 (4) provides that a classification committee may give a publication one of four classifications- • A “refused classification” under section 16(4)(a) • An “XX” classification under section 16(4)(b) • An “X18” classification under section 16(4)(c) • A classification in relation to relevant age restriction guidelines under section 16 (4)(d)

12. CLASSIFICATION CRITERIA

13. BANNED ? Photo’s courtesy of Alf Kumalo

14. CLASSIFICATION CRITERIA

15. BANNED ?

16. CLASSIFICATION CRITERIA

17. BANNED ?

18. THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA 108 OF 1996 • The fundamental right to freedom of expression in section 16(1) of the Constitution includes- • freedom of the press and other media • freedom to receive or impart information or ideas • freedom of artistic creativity • academic freedom and freedom of scientific research • Certain forms of expression are not protected under section 16(2) of the Constitution • Propaganda for war • Incitement of imminent violence • Advocacy of hatred based on race, ethnicity, gender or religion and that constitutes incitement to cause harm

19. CONSTITUTIONAL DIFFICULTIESWITH THE BILL • Section 16 (2) of the Bill infringes the fundamental right to freedom of expression by placing restrictions on expression subject to protection under section 16 (1) of the Constitution – • News reports of rape or indecent assault • News reports of public statements by individuals or public leaders • Book reviews and film reviews • Letters and editorials • Articles on sexual conduct • Section 16 (2)(d) of the Bill widens the definition of hate speech in section 16(2) of the Constitution to hatred based on "any identifiable group characteristic" • By omitting the requirement that hate speech must constitute incitement to cause harm,the Bill extends its reach to speech which is deserving of constitutional protection • Section 16(2)(d) of the Bill is constitutionally invalid

20. CONSTITUTIONAL DIFFICULTIESWITH THE BILL • The notification of publications for classification and the imposition of a criminal sanction for non compliance with the classification provisions of the Bill amounts to a prior restraint on freedom of expression which our courts have found to be unconstitutional in a number of cases • Any attempt to control expression based on content undermines the concept of editorial independence which is a widely accepted component of and pre-condition for freedom of the press and other media

21. CONSTITUTIONAL DIFFICULTIESWITH THE BILL • The imposition of criminal sanctions for non compliance will stifle free expression and encourage self-censorship • The Bill enables the State to determine what constitutes permissible expression at the expense of constitutionally protected expression • Whilst, Print Media SA, NASA and MPASA supports the elimination of child pornography this is not justifiable where constitutionally protected expression and expression on matters of public interest is silenced

22. CONSTITUTIONAL DIFFICULTIES:PRACTICAL IMPLICATIONS FOR NEWSPAPERS & MAGAZINES • News is a perishable commodity and newspapers must be able to immediately report on breaking news • Classification of news reports will significantly undermine this ability and constitutes a serious infringement of the right to freedom of the press • The Bill does not commit to a time period for the classification process and if not properly researched it can affect the deadline time for articles to appear in newspapers and magazines. • Newspapers and weekly magazines rely on topical news items to maintain their position in the market. • Where an age restriction is imposed on a news item, not only will it be impractical to apply but access to newspapers will be limited to certain age groups. This will occur even if only one news item is affected • Age classifications will significantly undermine the constitutional right to receive and impart information or ideas

23. LACK OF PROCEDURAL SAFEGUARDS (exacerbates the unconstitutional effects of the Bill)

24. CONCLUSION • Sections 16(2), 16(4), 24A and 24B are unconstitutional • Print Media SA requires the newspaper exemption to be re-instated • All provisions in the Bill which infringe the fundamental right to freedom of expression must be removed • The procedural safeguards must be re-instated