1 PRESENTATION ON THE SECOND DRAFT OF THE FILMS AND PUBLICATIONS AMENDMENT BILL [B27B-2006]

2 PRINT MEDIA SA TEAM  Trevor Ncube  President, Print Media SA  Chief Executive Officer, Mail & Guardian  Tony Howard, CEO, Independent Newspapers  Nazeem Howa, Executive Director Operations, Independent Newspapers  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  Joe Thloloe  Press Ombud, Press Council of South Africa

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 PRESS COUNCIL OF SOUTH AFRICA  Our members are subject to self regulation by the Press Council of South Africa  To give effect to the requirement of self-regulation the Press Ombud was established and has jurisdiction over 640 newspapers and magazines  There is also a Press Appeals Panel  Public representatives are members of the Press Council of the Press Ombud and the Appeals Panel  The system of self regulation has a proven track record in dealing with contraventions of the Press Code

6 THE NASA EXEMPTION  The exemptions in sections 16(1) and 16(2) are extremely narrow in that they are only of application to newspapers published by NASA members  The exemption excludes publishers of daily, weekly, foreign and community newspapers as well as consumer, trade, technical, professional and other specialist magazines who are not NASA members  Distributors and advertisers are for the first time also made subject to the classification provisions of the Bill

7 THE NASA EXEMPTION  Under the Films and Publications Act, non NASA members were only subject to classification where a complaint was lodged with the Films and Publications Board and referred to the classification committee for a decision and if appropriate, classification  Under the Bill these publishers together with advertisers and distributors are subject to mandatory classification  This amounts to a prior restraint on freedom of expression and is unconstitutional  The exemption must be extended to include all publishers subject to regulation by the Press Council of South Africa

8 THE CLASSIFICATION PROVISIONS OF THE BILL  The classification provisions in section 16(2) of the Bill encroach on speech which is subject to constitutional protection with the result that legitimate publications will be subject to –  An outright ban; alternatively  The imposition of severe restrictions on publication or distribution  This also amounts to a prior restraint on the right to freedom of expression  The suppression of constitutionally protected speech constitutes an unjustifiable limitation on the right to freedom of expression.

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 that constitutes incitement to cause harm  The reference to "sexual conduct" will result in non NASA publishers having to submit all reports and articles 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 articles on sexual intercourse regardless as to whether they are educational, artistic or literary works will also have to be submitted to the classification committee. Articles on HIV/AIDS education, sexual health or reproduction will all be affected

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 non NASA member publication 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 STATUTORY OFFENCES  Sections 24A(2) and (3) make it an offence to distribute, exhibit, offer for sale or advertise any publication which has not been classified by the Films and Publications Board  Section 24A(2) applies to non NASA members and they will be guilty of having contravened the section under circumstances-  where no request has been made for classification under section 16(1)  where a classification has not been made by the Films and Publications Board  Publishers cannot be criminally liable for publications which may or should have been classified by the Films and Publications Board and the imposition of criminal sanctions must be clear in application.

12 STATUTORY OFFENCES  Sections 24A (3) is of application to both NASA and non NASA members  The section requires all publishers to determine whether any advertisement placed in their publications would have been classified in a particular manner  It is not reasonable to expect a publication to conduct an assessment of whether products to be advertised may or may not be classified in a certain manner by the Films and Publications Board, if they were submitted for classification  NASA and non NASA members will be guilty of an offence under circumstances where a classification has not been made by the Films and Publications Board  The events which give rise to criminal sanctions in legislation must be clear and publishers cannot be held criminally liable for publications which may or should have been classified by the Films and Publications Board

13 STATUTORY OFFENCES  Sections 24A (4) is of application to both NASA and non NASA members  The effect of the section is that all publishers will not be able to distribute any publication which contains depictions, descriptions or scenes of sexual conduct to any person under 18 years  The wide definition of “sexual conduct” in the Bill will mean that articles in newspapers and magazines on rape, indecent assault or HIV/AIDS would amount to descriptions of sexual conduct  These publications are ordinarily sold without an age restriction and it will be impossible for newspapers and magazines to prevent these publications from falling into the hands of children  The effect of the criminal sanction will be stifle legitimate speech on sexual conduct altogether and this is unconstitutional

14 STATUTORY OFFENCES  Section 24B(2) is of application to both NASA and non NASA members  Section 24B(2) makes it an offence not to report any possession, creation, production, importation or distribution of child pornography where a person has knowledge of or merely suspects the commission of such an offence  The section undermines the confidentiality of journalist's sources and in turn nullifies the right the print media holds to freedom of expression  Section 24B(2) is unconstitutional

15 CONSTITUTIONAL DIFFICULTIES WITH 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  The imposition of criminal sanctions for non compliance will stifle free expression and encourage self-censorship

16 CONSTITUTIONAL DIFFICULTIES WITH THE BILL  The Bill enables the State to determine what constitutes permissible expression at the expense of constitutionally protected expression  Whilst, Print Media SA supports the elimination of child pornography this is not justifiable where constitutionally protected expression and expression on matters of public interest is silenced

17 CONSTITUTIONAL DIFFICULTIES- PRACTICAL IMPLICATIONS  There is no indication of how long the classification procedure will take and a delay of a few days in classifying material, particularly of news material severely undermines the right to freedom of the press  The overbroad provisions of section 16(2) may result in self censorship  The severe punishment for publishers or distributors who publish or distribute newspapers and magazines which have not been submitted for classification set out in section 24A will stifle expression

18 CONCLUSION  Sections 16(2), 16(4), 24A and 24B are unconstitutional  Print Media SA requires the NASA exemption to be extended to all persons subject to regulation by the Press Council  All provisions in the Bill which infringe upon the fundamental right to freedom of expression must be removed