2007

NATIONAL ASSOCIATION OF BROADCASTERS

FILM AND PUBLICATIONS AMENDMENT BILL -

PRESENTATION TO THE SELECT COMMITTEE ON SOCIAL SERVICES

16 October 2007

2007NAB DELEGATION

• DIMAKATSO QOCHA Deputy Exec Director, NAB

• DAN ROSENGARTEN Attorney

• STEVEN BUDLENDER Advocate

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2007OUTLINE OF PRESENTATION

• Introduction• Regulatory Environment• Constitutional Concerns – clause 21• Constitutional Concerns – clause 29• Conclusion• Questions

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2007

INTRODUCTION

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• NAB is the representative of the South African broadcasting industry

• Members include public, commercial and community television and sound broadcasters

• At the outset, the NAB wishes to confirm that:– the NAB and its members share the Committee’s

concerns regarding protection of children– the NAB and its members are supportive of any attempt

to eradicate the scourge of child pornography– the NAB and its members are committed to responsible

broadcasting

INTRODUCTION

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2007• All members of the NAB are unanimous in their concern

about the extent of the proposed amendments and the consequences for the independent regulation of broadcasting

• Television broadcasting members of the NAB will be directly affected - SABC, e-tv, M-Net and Multichoice have joined the NAB today to convey the concerns of the broadcasting community

• It is hoped that this joint presentation will:– assist the Committee by avoiding repetition of the

same issues; and– confirm that the concerns raised are shared by all the

broadcasters present today.

INTRODUCTION

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REGULATORY ENVIRONMENT

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• The stated intention of this Bill is to deal with child pornography

• Under the existing Act, “child pornography” is defined as:persons under the age of 18 engaging or participating in sexual conduct or showing the body of a person under the age of 18 in a manner that can be used for sexual exploitation

• S. 27(1)(a) of the Act already makes it a criminal offence to possess, create, produce, distribute or broadcast child pornography – up to five years imprisonment

• This already applies to all broadcasters – it is currently illegal for any broadcaster to broadcast child pornography

BROADCASTING CHILD PORNOGRAPHY IS ALREADY CRIMINALISED BY THE ACT

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REGULATORY ENVIRONMENT

• For any broadcaster to operate, it must be licensed by ICASA• The Electronic Communications Act already requires that all

licensed broadcasters comply with: The Code of Conduct of Broadcasters prescribed by ICASA; or Another Code of Conduct approved by ICASA – eg: the BCCSA

Code These two codes are practically identical

• The NAB has in addition and at the request of ICASA submitted a proposed Code of Conduct for subscription broadcasters

• All programming content broadcast by NAB members is also governed by: Individual license conditions of each broadcaster as set by

ICASA Internal editorial policies of each broadcaster

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REGULATORY ENVIRONMENT

• The Codes prohibit the broadcast of materials which, judged within context, contains scene/s of child pornography bestiality, incest or rape explicit violent sexual conduct explicit sexual conduct which violates the right to human dignity of

any person or which degrades a person and which constitutes incitement to cause harm

explicit infliction of or explicit effects of extreme violence which constitutes incitement to cause harm

• The Codes prohibit broadcasters from knowingly broadcasting material which, judged within context amounts to propaganda for war incites imminent violence advocates hatred that is based on race, ethnicity, gender or religion

and which constitutes incitement to cause harm

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2007REGULATORY ENVIRONMENT

• Licensees are required to –– avoid broadcasting material, including promotional

material, which is unsuitable for children and/or contains nudity, explicit sexual conduct, violence or offensive language before the watershed period

– classify the programmes they intend to broadcast indicating appropriate age restrictions and whether contains nudity, sexual conduct, violence and offensive language

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REGULATORY ENVIRONMENT

• Broadcasters are required to report regularly to ICASA on their compliance with these codes and obligations

• The Code of Conduct is administered by the Broadcasting Complaints Commission of South Africa (BCCSA) which regularly submits reports to ICASA on broadcasters’ compliance.

• The Codes of Conduct and editorial policies balance the free speech provisions of the Constitution and the obligation to protect minors.

• They are underpinned by concept of adequate viewer information, public awareness and sensitivity in scheduling.

• Broadcasters already rely on and respect the classification guidelines of the Board with regard to movies

• Earlier this year ICASA swore in its Complaints and Compliance Committee as required by the ECA

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2007 CONCLUSION ON THE STATUS QUO

• The broadcast of child pornography is already illegal and can be punished by up to five years imprisonment

• No licensed broadcaster has broadcast any child pornography

• All licensed broadcasters must comply with codes of conduct approved by ICASA

• All licensed broadcasters are monitored by ICASA to ensure compliance with these codes

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CONSTITUTIONAL CONCERNS

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2007TWO ASPECTS

OF THE BILL ARE UNCONSTITUTIONAL

• Clause 21 – subjecting broadcasters to the jurisdiction of the Board

• Clause 29 – provisions dealing with the creation of offences

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2007 NEGATIVE EFFECTS ON BILL’S LEGITIMATE AIMS

• The aims of preventing child pornography and preventing children from being exposed to harmful materials are laudable and important

• But if the Bill is enacted in its present form this will result in constitutional challenges and sections of the Bill will be declared unconstitutional

• This could have the consequence that important provisions which pursue the critical aim of preventing child pornography and hate speech are declared invalid because of their substantially overbroad effect

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CLAUSE 21 – SUBJECTING BROADCASTERS TO THE

JURISDICTION OF THE BOARD IS UNCONSTITUTIONAL

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2007THE PROBLEM

• Current provision: Section 23(3) of the Act provides that broadcasters who have a broadcasting licence are not subject to the classification mechanisms of the Board

• Proposed change: Clause 21 of the Bill proposes replacing section 23(3) of the Act

• Consequence: Licensed broadcasters will frequently have to submit programmes to the Board for classification and approval before broadcast

• Effect: The Board will be required to regulate broadcasting

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2007THE PROBLEM WITH THE BILL’S

PROPOSED “EXEMPTION”• Clause 21 of the Bill proposes a new broadcaster’s “exemption”:

“A broadcaster who is subject to regulation by the Independent Communications Authority of South Africa shall, for the purposes of broadcasting, be exempt from the duty to apply for classification of a film or game and, subject to section 24A(2) and (3), shall in relation to a film or game, not be subject to any classification or condition made by the Board in relation to that film or game.’’

• This means licensed broadcasters would have to comply with sections 24A(2) and (3) of the Act:– They will be criminally liable if they broadcast any film that

has been classified as a “refused classification”, “XX” or “X18” by the Board

– They will be criminally liable if they broadcast any film that would have been classified as a “refused classification”, “XX” or “X18” by the Board if it had it been submitted

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2007THIS MEANS THE BOARD IS

REGULATING BROADCASTING• This means that the Board will be determining which programmes

can be shown on television:– Where films are submitted by distributors and classified as

“refused classification”, “XX” or “X18”, broadcasters would be bound by this classification.

– Where films are not submitted to the Board, broadcasters will have to submit it themselves or try to guess what classification the Board would have given

• This does not only affect “movies”. The definition of “film” is so wide that it includes every movie, every news bulletin, every documentary and every advertisement

• The Concise Oxford Dictionary defines “regulate” as including “control by rule” and “subject to restrictions”. There is no doubt that the effect of clause 21 is that the Board would be regulating broadcasting

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2007ENCROACHMENT ON ICASA

• The independent authority established in terms of s192 of the Constitution is ICASA - not the Board

• The Constitution only allows ICASA to regulate broadcasting

• The current Act respects this by exempting broadcasters from jurisdiction of the Board

• The Bill destroys this carefully crafted position by giving Board jurisdiction over broadcasters

• The Bill is in direct conflict with s.192 of the Constitution

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THE BOARD IS NOT “INDEPENDENT”

• Section 192 requires any institution that regulates broadcasting to be “independent”

• The Constitutional Court has held that an institution is only “independent” if:

–The executive does not control the appointment of members of the institution; and

–The executive does not have the power to itself remove members of the institution; and

–Members of the institution have financial security free from interference by the executive

• The Board does not satisfy any of these requirements - the Minister has almost complete control over the appointment, removal and salaries of members of the Board.

• The Bill therefore conflicts with the Constitution by giving the Board jurisdiction over broadcasters

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2007CONCLUSION –

CLAUSE 21• The clause is unconstitutional:

– It subjects broadcasters to the jurisdiction of a body other than ICASA

– The Board lacks the required level of independence

• If enacted the clause will likely be declared invalid by the Constitutional Court

• This does not mean that television broadcasting can never be regulated. It can be regulated and is regulated – but only by ICASA

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CLAUSE 29 – THE PROVISIONS DEALING WITH THE CRIMINAL OFFENCES ARE UNCONSTITUTIONAL

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2007 THE PROBLEM

• Proposed provisions:– Sections 24A(4) and 24B(3) would make it a criminal offence

to distribute film containing “depictions, descriptions or scenes of sexual conduct” to person under 18

– Punishable by up to 5 years imprisonment

• The problem:– Sexual conduct is extremely broadly defined and would

cover large numbers of mainstream films, including Oscar nominees and Oscar winners

• The effect:– Large numbers of high quality mainstream films on important

issues would not be able to be broadcast on television25

2007THE DEFINITION OF

“SEXUAL CONDUCT” IS OVERBROAD

• The definition of “sexual conduct” is crucial to whether clause 29 is constitutionally permissible. But the definition is extraordinarily broad

• The Act defines sexual conduct as “including”:– “sexual intercourse” and– “sexual contact involving the … touching of the …

breasts”

• Therefore, the Bill means that whenever a film contains a scene of “sexual intercourse” or “sexual contact involving the … touching of the … breasts” it will be a criminal offence to broadcast or distribute the film

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THIS MEANS THAT MAINSTREAM FILMS WILL

BE BANNED• Not only “pornographic” films include a scene of “sexual intercourse”

or “sexual contact involving … touching of … breasts”

• High quality main-stream films also include them. Eg:

• Each of these films was nominated for at least one Oscar.

• Each of these films would be banned from television because they could be viewed by persons under 18.

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– Something’s Gotta Give (2003)– Sideways (2004)– The Aviator (2004)– Munich (2005)– Babel (2006)

– American Beauty (1999)– Chocolat (2000)– Moulin Rouge (2001)– Chicago (2002)– Monster (2003)

2007THIS VIOLATES FREEDOM

OF EXPRESSION• Section 16(1) of the Constitution guarantees the right to freedom

of expression– Propaganda for war, incitement to violence and hate speech

are excluded from this protection – But “sexual conduct” is included in the protection given by

section 16(1).

• While rights can be limited, censorship is regarded as a last resort and must not be overbroad

“Having regard to our recent past of thought control, censorship and enforced conformity to governmental theories … we should be particularly astute to outlaw any form of thought control, however respectably dressed.”S v Mamabolo 2001 (3) SA 409 (CC) para 37

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2007THIS CONTRADICTS THE

BOARD’S PRACTICE AND IS IRRATIONAL

• Many films containing a scene of “sexual intercourse” get a restriction of under 18 from the Board – meaning persons under 18 should be able to see them. Eg:

• But clause 29 contradicts this. It provides that when a film contains a scene of sexual intercourse it is always a criminal offence to distribute it to persons under 18 – even if the Board’s age restriction is less than 18!

• This is irrational and would therefore be unconstitutional

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– Something’s Gotta Give (13)– Sideways (16)– The Aviator (PG)– Munich (16)– Babel (16)

– American Beauty (16)– Chocolat (PG)– Moulin Rouge (10)– Chicago (13)– Monster (16VL)

2007CONCLUSION –

CLAUSE 29

• Clause 29 aims at laudable and important objectives.

• But the clause is unconstitutional:– It violates freedom of expression – It is overbroad– It is irrational

• If enacted the clause will likely be declared invalid by the Constitutional Court

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CONCLUSION

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2007CONCLUSION

• With regard to broadcasting, there are a number of statutory and self-regulatory measures in place to protect children from being exposed to disturbing, harmful and age-inappropriate material as well as from pornography and sexual exploitation

• The Government has stated that the primary purpose of the Bill is “to protect children from potentially harmful, age-inappropriate material” and from “exposure to violence and sexual abuse.”

• Unfortunately, the Bill does not allow for this purpose to be effectively achieved since it attempts to amend the current dispensation applicable to broadcasting service licensees– when this is unnecessary given existing regulation; and– to do so will be to create serious constitutional difficulties

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2007WAY FORWARD?

• Leave current exemption for broadcasters in place

• The current exemption still allows broadcasters to be prosecuted for broadcasting child pornography

• All other concerns are covered by ICASA in terms of the Electronic Communications Act, licence conditions and obligatory Codes of Conduct

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• We thank the Committee for the opportunity to appear before you today

• The NAB and its members wish to re-affirm their support for the work of the Committee in protecting children against harmful content

• The concerns raised by the broadcasting community do not seek to frustrate the goals of the Committee, but to ensure a dynamic broadcasting sector which, as guaranteed by the Constitution, is subject to independent regulation.

• We trust our concerns will be addressed by the Committee in your deliberations on this Bill

THANK YOU

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2007

THANK YOU

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