This bill, the Films and Publications Amendment Bill, has stirred up quite a controversy and has even been dubbed the "Censorship Bill". If the bill is passed the purpose of the amended Act will ostensibly be the following:
(a) regulate the creation, production, possession, broadcasting and distribution of certain publications, [and certain] films and interactive computer games by means of classification[, the imposition of age restrictions and the giving of consumer advice, due regard being had in particular to the protection of] to protect children from exposure to disturbing, harmful or age-inappropriate materials and against sexual exploitation or degradation in publications, films, interactive computer games, on mobile cellular telephones and on the Internet; and
(b) make the [exploitative] use of children in pornographic publications, films, interactive computer games, on mobile cellular telephones or on the Internet, punishable.’’.
The provisions between the square brackets and in italics are portions of the existing Act that will be removed by the new bill. As you can see, the removal of these clauses remove certain of the restrictions on the implementation of the Act itself and this is only having regard to the stated purpose of the bill. One of the stated purposes of the proposed legislation is the prevention of child pornography and while this is a laudable goal, child pornography has been used in other jurisdictions as the scapegoat for a number of draconian legislative measures. This has been particularly so in the United States where the twin evils of child pornography and terrorism have been used to excuse particularly invasive and restrictive legislative measures aimed at cracking down on the free use of ad access to legitimate media.
This bill introduces classifications for material that exhibits "child abuse, propaganda for war or incitement to imminent violence" as well as "the advocacy of hatred based on any identifiable group characteristic, unless, judged within context, the publication is a bona fide documentary or is a publication of scientific and
literary merit on a matter of public interest". It is important to note that while the freedom of expression is enshrined in the Bill of Rights, it is not absolute and does not apply to forms of expression like hate speech.
One of the fundamental problems with this bill is that it would subject the news media to censorship. Other problems include imposing obligations on internet service providers to police their networks and be on the lookout for forbidden materials and the added requirement that virtually all forms of media (in the broader sense) be classified prior to distribution. IOL and a number of other organisations have taken a stand against the new bill and this release was published on the IOL site:
IOL has joined the South African National Editors’ Forum, the Freedom of Expression Institute, the Media Institute of Southern Africa and several international organisations in opposing the Film and Publications Amendment Bill.
The current Film and Publications Act regulates films and publications other than the news media by censorship and classification measures which determine the age groups precluded from viewing certain films and which publications should be prohibited or how they should be displayed in stores. A clause in that Act exempted the media from its provisions thus enabling the print and broadcast news media to operate freely and without interference or pre-publication censorship. That exemption is to be removed in the amending legislation.
"If this proposal is accepted by parliament, the effect will be that the print and broadcast media will be subjected to the dictates of the Film and Publications board. The practical effects will be that the media will be subjected to pre-publication censorship, probably forced to expunge large amounts of their news coverage from their pages or broadcasts and submit to procedures which will prevent papers from being distributed on a daily or weekly basis and result in broadcasters having to delay news broadcasts. The fact that the Bill makes provision for exemption matters little, as to impose this duty on the media amounts to seeking licence to publish," say the the National Editors’ Forum, the Freedom of Expression Institute and the Media Institute of Southern Africa.
Another problem with the bill is what it may mean to bloggers in South Africa. Already bloggers are starting to be recognised as "citizen media" where blogging has become more mainstream. Citizen media is, according to Wikipedia, defined as:
Citizen media is an inclusive term that refers to any form of content produced by private citizens and includes production models like public access, community technology centers, digital storytelling, blogs, vlogs (video blogs), and podcasting (audio blogs). This term draws the distinction between centrally controlled/distributed media (ie Corporate media ) and the media that is generated by private individuals.
Blogging is not yet mainstream (or really a recognised form of media in South Africa) and it is growing at a tremendous rate. One important question is whether blogs and other forms of citizen media will fall within the scope of the proposed amendment? Doing so will almost certainly stifle the development of citizen media in this country, leaving aside the chilling effect this bill may have on traditional news media and emerging forms of content media. The end result is a potential erosion of the freedom of expression where those forms of expression have nothing to do with pornography, hate speech and other objectionable forms of expression.
A big question is whether this is the intended consequence of this bill or whether the bill is aother example of poorly conceptualised and drafted legislation? What is clear is that this is not a bill to ignore. While its objectives may be admirable, to a degree, the effect could be devastating and could signal a return to a pre-1994 regieme.