Films and Publication Amendment Bill: Democratic Alliance submission & deliberations

HOME AFFAIRS PORTFOLIO COMMITTEE
30 May 2007
FILMS AND PUBLICATION AMENDMENT BILL: DEMOCRATIC ALLIANCE SUBMISSION & DELIBERATIONS

Chairperson: Mr H Chauke (ANC)

Documents handed out:
Democratic Alliance Submission
Printmedia South Africa Proposal

Relevant Documents
Working draft of Films and Publications Amendment Bill Part1 & Part2
Films and Publications Amendment Bill [B27-2006]
Films and Publications Act of 1996

SUMMARY
The Committee received and discussed the DA proposals, which included the deletion of the entire Section 16 save for subsection 1. The Committee felt that Section 16, that dealt with the media exemption and the classification process contained the crux of the legislation and that without it, the Films and Publications Amendment Bill would have no meaning.

The Parliamentary Legal Advisors had identified that 'newspaper' had not been defined and felt that that created a gap that could possibly be exploited. It was agreed that only newspapers belonging to the Newspaper Association of South Africa and only broadcasters registered with Independent Communications Authority of South Africa, would be exempt from classification by the Film and Publication Board. The drafters would prepare the B version of the Bill for adoption on Thursday, 31 May.

MINUTES
Democratic Alliance submission
Mr M Swart (DA) presented the DA submission, which responded to the working draft of the Bill that was presented to the Committee the day before.

In response to the DA’s proposal that Clause 1(g) be deleted for its broadness, Adv Deon Erasmus, Department of Home Affairs’ Acting Chief Director: Legal Services, explained that ‘sexual conduct’ had already been defined in the principal act. The definition in the above mentioned clause was for ‘explicit sexual conduct’. This definition differed from the definition in the principal act.

The Committee agreed that that definition would be retained.

The DA felt that the Constitution already addressed the concerns Clause 1(i) aimed to address through the definition of ‘identifiable group characteristic’. They felt that the definition could thus be deleted.

Adv Erasmus explained that the thinking behind the inclusion of the definition was to bring the legislation in line with Section 9 of the Constitution.

Mr S Swart (ACDP) reminded the Committee that he had argued that the drafters should use the narrower wording used in Section 16 (2) of the Constitution. He was pleased that the second test had been included but agreed with the DA that the definition was too broad. The broader context of the provision was already covered in the Equality Act. Section 29 of the principal Act prohibited hate speech as defined in the Constitution and he was concerned about why the new definition was so wide. He realised that changing it would be a political decision.

Ms Yolande van Aswegen, DHA Assistant Director: Legal Services, explained that the FPB had requested that all the grounds mentioned in the Equality clause be included for reasons related to classification. Sometimes advocacy of hatred was based on grounds other than those mentioned in Section 16(2) of the Constitution.

Kgoshi Mathebe felt that the main purpose of the provision was classification-related and did not feel that it could be removed.

Adv Erasmus referred Members to Clause 16(4)(a)(ii) which spoke of the advocacy of hatred based on an identifiable group characteristic and that constituted incitement to cause harm. The additional rider brought it in line with the Constitution. He added that the drafters tried to have a balanced approach and not only focus on the Equality clause.

The DA argued that Clause 2(b) in the Objects of the Act was too vague and should be deleted. They felt the harmfulness of material was too subjective to be legislated.

The Chairperson had thought that the Committee had agreed on what the harmful material from which they wanted to protect children, was.

Mr M Swart pointed out that material that was harmful for one person was not necessarily considered harmful by another.

Kgoshi Mathebe warned that if the Committee debated words they might end up having to change the entire Bill. He agreed that Members had already discussed tat they wanted legislate material that might be harmful to children.

The DA proposed that under Clause 19 of the draft, only Section 16(1) of the principal Act be retained. They felt that the rest of the section amounted to pre-classification or censorship and that that was unacceptable and unconstitutional. They felt that the Equality Act as well as Section 29 of the principal Act already provided for the concerns the section aimed to address. Section 29 should thus not be repealed.

Kgoshi Mathebe pointed out that the provisions of Section 16 were the main provisions of the legislation. Deleting them would defeat the purpose of the entire Bill.

The Chairperson wondered whether the DA had applied its mind before finalizing their proposals.

Mr M Swart reiterated that save for Section 16 (1) the provisions of that sectioned should be removed as they called for pre-classification, which was unconstitutional.

Kgoshi Mathebe felt that it was not up to the Committee to determine the constitutionality of the legislation.

Mr W Skhosana (ANC) thought that if Mr Swart and his colleague had not walked out of the meeting on 25 May, the DA would have had a better understanding of why certain provisions were included in the legislation. The Committee had agreed that certain provisions particularly the ones under discussion would remain. If the DA wanted to tamper with that inclusion, they were not in agreement with what the Committee hoped to achieve through the legislation. Other provisions could be negotiated.

Adv Erasmus pointed out that Section 16(2) specifically excluded the publishers of newspapers, and as he recalled the debate had been about whether newspapers should be excluded or not. He emphasized that newspapers were not being requested to submit their material for pre-classification.

The Chairperson recalled that Mr Marius Swart had argued strongly for the exemption of newspapers, which was now provided. Referring to Mr Skhosana’s earlier statement, which he thought was valid, he reminded Members that they had to accommodate their colleagues’ opinions. He understood that it was “in the nature and character of the DA” to sometimes go back and forth to consult. The Committee had no option but to accommodate the member so that he could be satisfied that he had made a contribution.

Mr M Swart informed Mr Skhosana that the DA had put their proposals in writing after walking out of the Friday meeting, and delivered it that same morning. He was not sure whether it had been circulated or not.

Returning to the legislation under discussion, he said that apart from newspapers there were hundreds of other publications that would also be affected.

Ms Lee Ann de la Hunt, DHA: Legal Advisor, thought that it was clear that administrative justice provided for some of the concerns. Newspapers were excluded because of the time constraints it would place on the industry’s activities. The Constitution too limits freedom of expression to a specific extent. Internal as well as external remedies were available to those entities that were unhappy with their publication being refused. She thought that the limitation in question would pass constitutional muster.

The Chairperson thought that the legislation tried to “pin down” those publications that had no reason not to be able to submit for classification before publication. He added that freedom of expression was not absolute and was also subject to limitations. The main idea was to protect children from harmful material.

The DA felt that section 17 and the schedules should not be repealed and section 18 should not be amended. Such changes would result in the legislation losing its structure. They thought that the description of the offences and classification of the publications in Section 17 was sufficient, and that the wording related to the classifications of films and games contained in Section 18 was very good.

Adv Erasmus explained that all the schedules had been repealed in rewritten into the Act. The discussion with the Film and Publication Board (FPB) had also revealed that the Schedules were not amended on a daily, or monthly basis. Such regular amendments were the rationale behind having schedules rather than laws. Therefore the schedules would now be included on the mainframe of the Act.

The Chairperson thought it better if the DA’s proposal in this regard not be accepted.

The DA proposed that the right to appeal to the Supreme Court should be retained and that Section 21 of the Act should not be repealed (Clause 20).

Mr S Swart pointed that one could appeal to the High Court which was much cheaper. If one went on review in a normal court the process was much lengthier and more expensive. There was a difference between the two processes. In terms of the administrative justice provisions one could still go to the High Court on review but that was a totally different legal process.

Mr Tsietsi Sebelemetja, DHA: Acting Director Drafting, had thought that to appeal was more expensive than to review.

The Chairperson commented that one wanted the process to be accessible to all complainants.

Mr Sebelemetja said that the provisions contained in Section 21 of the Act were wrong in most instances. The Promotion of Administrative Justice Act (2000) facilitated access to courts.

Mr M Swart was of the opinion that the repeal of Section 21 meant that a person did not have the right to appeal to a court of law.

Adv Erasmus agreed that to appeal was far more expensive than to review and explained that one had to exhaust internal measures before requesting a judicial review. The Appeal Tribunal, which was in the process of being established, would be the internal measure complainants could resort to. Should they not be satisfied with the findings of that tribunal they could still request judicial review in terms of the Promotion of Administrative Justice Act.

Kgoshi Mathebe said that the Committee was trying to make the legislation accessible to even poor people. He quipped that should the official opposition’s proposal be accepted, the process would only be accessible to the DA.

Kgoshi Mathebe complied when the Chairperson requested him to withdraw his last comment.

The Chairperson said that Mr Swart was a member of the Committee and had the right to say anything he wanted to say.

Mr M Swart responded that he took comments such as Kgoshi Mathebe’s from whence it came.

The DA proposed that the word ‘broadcasts’ should be deleted from Clause 24. They felt that the provision would otherwise infringe upon the work of the Independent Communications Authority of South Africa (ICASA).

The Chairperson wondered why the DA wanted to now remove the provisions related to broadcasters.

Mr M Swart said that they were merely taking into account what had been raised during the public participation process. Broadcasting was covered in other legislation.

Ms van Aswegen explained that the drafters had merely imported the offence section in Section 29(1) of the principal Act to Clause 24B(1) of the Bill. It was an offence provision and no one could be excluded from offenses.

The DA felt that the offences listed in Clause 24 were unacceptable because they allowed for “severe punishments on unconstitutionally vague provisions”. He emphasized that they supported the offences under child pornography.

The DA felt that the Section 30 of the principal Act should be retained and not be replaced with clauses 28 and 29. They felt that the Section 30 was better worded.

Adv Erasmus explained that Section 29 of the principal Act was dealt with in Section 24A of the Bill and was much broader because, as he had earlier indicated, the schedules had been written into the Bill. Section 28 had been rewritten into clause 24B.

The DA felt that the phrase “or in such a manner that it is capable of being used for the purposes of sexual exploitation” should be removed from Clause 1(c)(iii)(c) as they believed that it was unnecessary.

Adv Erasmus explained that the intention behind the inclusion of the phrase was to curb the spreading of the production of “cut and paste” etc images that were harmful. Technology could be used to create many such images.

Mr Skhosana felt that the DA would have to accept its inclusion because there were many ways of attracting children to material and actions that were inappropriate. The Committee was trying to protect children as far as it could.

Discussion on whether all newspapers and broadcasters should be exempt
Parliamentary Legal Advisor (PLA), Adv Mukesh Vassen, drew the Committee’s attention to a gap he and his colleague Ms Refilwe Mathabathe had identified in the working draft of the Bill. They felt that the newspapers were exempt from classification by the FPB, but that there was no definition of what constituted a newspaper.

The principal Act exempted newspapers that belonged to the Newspaper Press Union of South Africa from its provisions. This meant that newspapers not belonging to that union were not exempt.

He recalled that part of the intention of the proposed legislation was to protect the print media and to allow it to regulate itself and show responsibility in what they published. If the purpose of the Bill was to prevent child pornography as well as children’s exposure to harmful material, the lack of a clear definition would leave a gap that could be exploited by newspapers that chose not to belong to an association and thus not fall under any self-regulatory measures.

Ms Mathabathe said that the problems arose when the definition was read with Section 16 (1), which exempted all newspapers. She suggested that it be extended to say other than a newspaper belonging to the press association. So newspapers not regulated by the association would not be exempt. Her understanding had been that the FPB would not regulate newspapers provided they self regulated. If newspapers did not belong to any association, they would not be regulated and could publish whatever they wanted and still be exempt.

Mr S Swart pointed out that it would be necessary to find out who Newspaper Press Union of South Africa’s successor in title was.

Mr Sebelemetja wondered whether, if the association were specified, newspapers not belonging to it would have to be classified.

The Chairperson asked whether each time the name of an association changed, the legislation would have to be amended.

Ms Mathabathe explained that should an association change its name, the Interpretation Act catered for the successor, which would then be read into the legislation.

The Chairperson was perplexed as to why the legislation had included the association to begin with.

Mr M Swart suspected that the reason for the inclusion had probably been to address the gap the parliamentary legal advisors had identified.

Adv Erasmus warned that should the reference to an association be included, those newspapers that did not belong to the association would feel that they were being forced to submit to classification.

The Chairperson agreed that there were a number of newspapers that did not necessarily fall under the Newspaper Press Union of South Africa. During the public hearings it had been said that that association was actually outdated and needed to be updated. Taking heed of Adv Erasmus concern he wondered how newspapers outside of the association would be catered for. He requested a proposal that would bring everyone under the same umbrella.

Adv Vassen reminded members that newspapers felt that being regulated by Government constituted interference. They preferred self-regulation. At the moment the Press Association and the Press Ombud addressed matters related to the newspapers belonging to the association. He warned that newspapers that fell outside of any kind of press self-regulatory arrangement would be free to publish any material even if that material was harmful to children.

Mr S Swart felt that the parliamentary legal advisors were raising a valid concern. One could not allow newspapers to go about their business without any kind of regulation. He suggested that someone should find out whether there was a body that included all newspapers. The Newspaper Association of South Africa (NASA) included mainstream as well as community newspapers. If a newspaper did not want to join the association, it meant that it wanted to be classified. He acknowledged that he had argued for the press exemption, but he could now see that a limitation of that exemption would be necessary.

Adv Erasmus pointed out that part of the problem was that there was no clarity on what the newspaper association was called.

The Chairperson wondered whether the parliamentary legal advisors had verified the proposal they were now making.

Adv Vassen responded that they had identified a gap and were merely trying to close it. The press claimed that that they were self-regulatory, but there were still bodies that existed outside that regulation. He felt that they needed to find out what the self-regulating body would be, or was presently called. The Interpretation Act would then provide for the successor in title.

Ms Mathabathe recalled that the PMSA President, Mr Trevor Ncube, had indicated that the Newspaper Press Union of South Africa was now known as NASA.

The Chairperson requested that greater clarity was sought. Realising that there was a journalist present, he asked whether she could perhaps provide such clarity.

The journalist responded that as far as she knew the Printmedia SA (PMSA) was the association newspapers belonged to.

Ms Mars wondered whether the Committee could request the advisors to research the matter very thoroughly, so that Members could have all their answers by the following Tuesday.

The Chairperson was adamant that the matter should be resolved that day and that there would be no further delays in finalising the Bill.

The Committee adjourned for a few minutes so that information around the press association could be verified.

On resumption, the Chairperson noted that the Committee had received a submission from Printmedia SA, which spoke to the partial or entire exemption of newspapers, but that it had not been considered earlier. He requested the DHA’s legal advisors to consider the submission while the Committee discussed another matter. He then gave Ms Mathabathe opportunity to explain a proposal she had made during the break.

Ms Mathabathe proposed that ‘broadcasters’ in Section 24A(2)(a) be qualified. She suggested that the clause could read “except with respect to broadcasters licensed by ICASA, not been classified by the board”. She thought that that way everyone would know that broadcasters were exempt. She would have argued that all broadcasters should be exempt, but the DHA had explained to her that there were also people, nor regulated by ICASA, who broadcast via cellphones. She added that at present broadcasters were also not defined, so defining it would be another way of addressing the concern.

The Chairperson said that they had dealt with the matter at some point, but the draft clause did not address the concerns. He wondered whether the best option would not be to delete broadcasters altogether.

Ms Mathabathe thought that it might be better to qualify what broadcasters referred to so that they could cater to those broadcasters, such as cell phone users, who were not regulated by ICASA. If the ones regulated by ICASA were exempted, cellphone broadcasters could still be regulated.

Mr S Swart suggested that the clause should follow the wording used in Section 22(3). He felt that the benefit of the qualification would address any concerns around constitutionality too.

The Committee accepted the proposal.

The Chairperson suggested that the Committee now debate the concern the parliamentary legal advisors had raised around the lack of definition for ‘newspaper’. He wondered what the DHA’s thoughts were on the Printmedia SA submission.

Adv Erasmus did not agree with PMSA’s proposal to retain Section 22(3) of the principal act. He felt that the definition of ‘newspaper’ should be defined in Section 1.

Mr S Swart thought it necessary that he drew the Committee’s attention to the fact that the PMSA’s proposal had also been the ACDP’s first preference. He accepted however that the Committee had decided to rather redefine ‘newspaper’ in Section 1.

Adv Vassen felt that where the definition was placed did not really matter. All that was important was that the definition be made.

Adv Erasmus said that should the definition be included, newspapers would be forced to become part of certain associations. There were certain financial implications that also had to be taken into consideration. It was his understanding that joining such an institution required financial backing that many smaller newspapers simply did not have. The implication would be that one either had to join an association or submit to pre-publication classification.

The Chairperson said that the Committee did not want to be seen as using the law to mobilise membership for associations.

Mr Sebelemetja said that the question was whether those who belonged to NASA enjoyed fewer freedoms than those who did not.

Mr M Swart said that the Committee would not be limiting a newspaper’s freedom to choose registering with an association or not. If it chose not to register with an association, they could of course publish undesirable material. Newspapers could choose registration and know that they were exempt from having to submit for classification, or could choose not to register in the full knowledge that they might “be in for the high jump”.

Ms Mathabathe said that a newspaper would still have to submit for pre publication classification if that newspaper fell within the grounds tabulated in Section 16.

Mr S Swart’s understanding was that at present only newspapers belonging to the Newspaper Press Union of South Africa were exempt. Other newspapers could apply for an exemption in terms of Section 22(1). He firmly believed that there was a need to limit the exemption to members of the NASA, else it would be too broad. Those, who for whatever reason chose not to register, had to ensure that what they published was in line with the legislation or could apply for an exemption.

Mr Skhosana recalled that there had been a suggestion that newspapers containing undesirable material had to be classified and distributed within certain conditions. He stressed that it was important that all role players knew the rules according to which they had to publish.

Mr Sebelemetja pointed out that Section 22(1) did not apply to classification but to the provisions and could thus not be used.

Adv Erasmus added that newspapers could not use Section 22(1) to acquire an exemption. Subsection 1 dealt with Sections 24A, 24B, 24C which dealt with the penal provisions in the act. Section 16 dealt with classification.

Adv Erasmus pointed out that if they were going to define newspapers there might be an extent of discrimination in that people might feel forced to join an association. A small newspaper might of course also publish undesirable material, but they would then have to apply for classification.

Ms Mathabathe said that the object of the Bill was to protect children from exposure to pornography. To say that newspapers would be subject to a penal provision should they publish undesirable material was a reactive approach that did not protect children.

Mr M Swart felt that only newspapers registered with the NASA could be exempt.

The Chairperson wondered if one could then assume that all along the newspapers not registered with the Newspaper Press Union of South Africa had not been exempt. He wondered how the broadening of the definition would assist.

Adv Erasmus responded that to be exempted, newspapers would have to become a member of NASA.

The Chairperson wondered if newspapers would then be forced to join the association.

Mr S Swart explained that at the moment, the exemption applied only to newspapers that were registered. Newspapers that were not registered did not enjoy the exemption. At the moment the wording was wide because it did not make mention of NASA. Broadcasters that were regulated with ICASA had been exempted. He was not sure whether newspapers that were not registered were even subject to the Press Ombud or a code of conduct.

The Chairperson asked whether the two options available were either to add NASA, or to define newspapers.

Mr S Swart said that he would include one of those as that would narrow the definition and in the end protect children.

The Chairperson was concerned that newspapers would then be forced to register with NASA in order to escape classification.

Adv Erasmus said that currently only newspapers belonging to the Press Union of South Africa were excluded. Mr S Swart’s suggestion was now to simply change that provision to read that those newspapers registered with the NASA would be exempt. This basically retained what was contained in the principal Act. His suggestion was to include a definition of newspaper that read: “the publisher of newspaper who is a member of the NASA and includes an online publication of such a newspaper”.

Ms Mathabathe was concerned that a publication was then being defined as a newspaper and a whole lot of other things. This meant that those who did not belong to the association would be excluded from the meaning of publications, which also mentioned newspapers. They would then not have to submit for classification because they would not be a publication.

The Chairperson wondered whether Clause 16(1) could not merely indicate which publications were exempted.

Ms van Aswegen felt that that would work because it meant retaining what was said in the principal Act.

Adv Vassen said that then there would be self-regulation.

Adv Erasmus felt that a newspaper be defined as above and keep Section 16(1) as it was. Changing the definition would cause problems in his view.

Ms Mathabathe said that her concern then remained. She wondered what a newspaper not belonging to NASA would be seen as, because it would not be defined as a publication.

Mr M Swart felt that if 'newspaper' were to be defined in the definitions, the concerns would be addressed.

Mr S Swart could understand Ms Mathabathe’s concern. He felt that the problem would lie in the definition of publication.

The Chairperson pleaded with the lawyers on both sides to arrive at a solution that would assist in taking the process forward and not to merely disagree for the sake of disagreeing with each other.

Mr Sebelemetja said that after conferring with his colleagues, they understood the reservations Ms Mathbathe had raised.

Adv Erasmus proposed that the definition of newspaper in Clause 1(l) remain the same, and that Section 16(1) would read “Any person may request, in the prescribed manner, that a publication, other than a newspaper that is a member of the Newspaper Association of South Africa, which is to be or is being distributed in the Republic, be classified in terms of this section.”

Mr S Swart pointed out that the use of publisher in Section 16(2) should be consistent with its use in Section 16(1).

Mr Sebelemetja did not think that it would be necessary to change subsection 2, because subsection 1 would have to be read with it.

The Chairperson wondered whether Section 22(3) of the principal act would be repealed.

Adv Erasmus confirmed that that specific subsection would be repealed but it would be provided for in the new Section 16(1).

Ms Mathabathe requested that, to be safe, Section 16(2) made reference to Section 16(1).

Mr Sebelemetja explained that Section 16(1) exempted the publication and not the person. The following paragraph spoke about the person.

Ms Mathabathe felt that the effect would then be that the person publishing a newspaper containing any of the undesirable material would still have to submit for classification. The newspaper would then be exempt, but not the publisher. A NASA member’s publication would thus be exempt according to Section 16(1) but Section 16(2) read that any newspaper was exempt. The latter provision was thus broader.

Mr S Swart wondered why Section 16(2) could not include a rider saying “except the publisher of a newspaper contemplated in subsection 1”.

Mr Sebelemetja did not think that that was necessary considering that the two subsections ought to be read together. Ms van Aswegen thought that the suggestion had merit.

Mr M Swart agreed that a reference to the first subsection should be included in the second one. It did not make sense that a newspaper could be exempt but that the publisher of that newspaper would have to submit for classification.

Mr Sebelemetja conceded “for the sake of progress”.

The Chairperson amiably pointed out that failure to adequately engage with the legislation would impact on generations of South Africans. In addition the Committee would have to defend whatever decisions would be taken in relation to the legislation. He added that the legal advisors had all worked together very well through out the process and it was only now in the final stages of the process that he saw their “true colours” and realised that lawyers could not always work together. He encouraged Mr Sebelemetja, if he still had reservations, to advance his argument.

Mr Sebelemetja requested members to consider what the purpose of subsection 1 was.

Ms de la Hunt assisted by pointing out that subsections 1 and 2 presented two different processes. In Section 16(1) a member of the public could request that a publication be classified. The second subsection spoke to a different process in which the onus was on the newspapers and the publishers. A person wanting to complain about a newspaper that was part of NASA could only complain to the Ombudsman and not the FPB. She thought that it was also important to point out that only a certain group of newspapers would be exempt should they apply for leave to publish propaganda for war, etc. She too felt that reference to subsection 1 should be made in subsection 2.

The Committee agreed to the change.

The Chairperson, addressing Mr M Swart of the DA, said that it was important to attend committee meetings. To which, Mr Swart good-naturedly responded that if the Chairperson insulted him he would keep walking out.

The Chairperson recalled that in 1994 and 1995 the then National Party and the Democratic Party always walked out when they disagreed with the ANC. He pointed out that the DA’s more than 2 million voters had mandated then to debate issues and not to walk out when there were disagreements.

Mr M Swart reminded him that the DA had now submitted its proposals.

The Chairperson shared that he was very pleased that they had decided to do so and applauded them for it. The Committee had now heard the final proposals and he requested the drafters to prepare the final version of the Bill, so that it could be adopted on Thursday, 31 May.

The meeting was adjourned.