FXI decries enactment of Film & Publication Act amendments

The Freedom of Expression Institute (FXI) says it is deeply disappointed that President Jacob Zuma has signed into law the Films and Publications Amendment Act 3 of 2009.
The FXI says the Amendment Act “constitutes a grave intrusion of the right to freedom of expression.”
Zuma signed the amendments into law late last month.
FXI lawyer and Acting Executive Director Melissa Moore says she is of the view that “certain sections of the Amendment Act fail dismally in giving effect to the right to freedom of expression”.

She says the most intrusive element of the amended legislation is that, under the guise of the “protection of children`s rights” the legislature has introduced a system of pre-publication censorship and self-censorship which offends against the letter and spirit of the Constitution.

Critics have argued that the amendments reduce the right of adults to send and receive information on a variety of issues to that a faceless bureaucrat deems suitable for small children.

Moore says the amendments forces a publisher who is not a “bona fide newspaper” recognised by the Press Ombudsman or any other person who wishes to distribute, broadcast or exhibit any film or game, to such to the Films and Publications Board (FPB) for approval prior to publication, distribution, broadcast or exhibition on pain of five years in prison or a fine or both if the material contains “sexual conduct which violates or shows disrespect for the right to human dignity of any person; degrades a person; constitutes incitement to cause harm; advocates propaganda for war; incites violence or advocates hatred based on any identifiable group characteristic and that constitutes incitement to cause harm.”

It will be for the FPB to decide whether material passes muster or not.
“This requirement, which is now part of our law, amounts to pre-publication censorship in the worst degree, which will in turn open the regulation of publications, films and games up to abuse and inhibit the free flow of information,” says Moore. 

Moreover, amended Act provides that the FPB must ban any material which, in their view, contains child pornography, propaganda for war, incitement of imminent violence, the advocacy of hatred based on any identifiable group characteristic and that constitutes incitement to cause harm; explicit sexual conduct which violates disrespect for the right to human dignity of any person; bestiality, incest, rape or conduct or an act which is degrading of human beings; conduct or an act which constitutes incitement of or encourages or promotes harmful behaviour; explicit infliction of sexual or domestic violence; or explicit visual presentations of extreme violence.

The FXI says while it in “no way” supports or condones child pornography, the incitement of imminent violence, propaganda for war or hate speech, the new provisions are “unjustifiable, unreasonable and arbitrary limitations on the right to freedom of expression”.
They are vague and “limit the right to freedom of expression in manner in that it is overbroad and transgresses the bounds of unprotected forms of expression, which are prohibited in terms of section 16(2) of the Constitution. This in turn can only lead to abuse and uncertainty,” Moore says.
“…it is not the prerogative of an organ of state to dictate to society what they may read, see, hear or do.”

Moore adds that the amended Film & Publication Act now effectively promotes unequal treatment before the law.

“It is unequivocally unfair to grant one group of publishers an absolute exemption from the requirement to submit material for classification. In no way does FXI`s statement in this regard imply that all publishers should be required to submit their material to the FPB for approval prior to publication.
“On the contrary, all publishers in the market should be similarly exempt from this requirement. To grant a group of publishers such an exemption would also grant that group an unfair market advantage over the disadvantaged group in terms of time, cost and effort,” Moore says. 

Moore further adds that the amended Act introduces a new offence into SA law, requiring that anyone who knows of, suspects or has reason to suspect, that an offence has been or is being committed under the provisions of the Act to furnish the police with a full report of such knowledge or suspicion, failing which such person shall be guilty of an offence.
“This potentially violates the rights to freedom of expression unjustifiably as it will force journalists to reveal their confidential sources of information related to the commission of an offence. This will undermine the media severely and would diminish the media’s ability to develop other sources and gather news.”

This requirement is in addition to Section 205 of the Criminal Procedure Act 51 of 1977 that has been used to compel journalists to reveal their sources. 
“The FXI cannot condone this insidious erosion of private liberties under the banner of the protection of interests whether they be the interests of children, religious interests or political affiliation.
“Any intrusion of individual rights must be measured very carefully against the guarantees embedded in the Constitution, which guarantees the Constitutional Court has already ruled should be jealously guarded.
“It is far too easy to sally forth and rail against the perceived ills of creative minds under the guise of the protection of public morality,” Moore says.