South Africa - Broadcasters Weigh In With Objections To New Media Law In South Africa

Regulation & Policy

Electronic media players yesterday joined their print colleagues in criticising provisions in the Films and Publications Amendment Bill as unconstitutional and “of such severity that they would make broadcasting almost impossible”.

The bill is designed to crack down on child pornography and abuse but the removal of the exemptions would compel self-censorship or lengthy applications for classification of reports concerning sexual abuse, among other things.

Last week the National Association of Broadcasters (NAB), which counts among its members all three television broadcasters in SA as well as all licensed commercial radio stations, pointed out that the removal of the exemptions introduced self-censorship. They said it also “places an impossible duty” on broadcasting in the categories mentioned. Its submission said this was incompatible with the constitution.

The NAB said broadcasting of child pornography was already illegal and amounted to irresponsible broadcasting. It said all the members of the organisation condemned child porno graphy and had also worked closely with statutory bodies, including the Film and Publications Board, to self regulate the broadcast of adult content.

The NAB also raised the issue that broadcasting in SA was regulated by the Independent Communications Authority of SA (Icasa) as provided for in the constitution. It said the self-regulation bodies such as the Broadcasting Complaints Commission operated in terms of Icasa’s sole jurisdiction to regulate broadcasting, and with its sanction. “This renders any intervention in terms of the Films and Publications Act constitutionally invalid as no body other than Icasa or those duly authorised by Icasa has a constitutional mandate to regulate broadcasting content,” the body said.

This view was supported by Icasa in its submission to the committee — “Any intervention in broadcasting by the Films and Publications Board in terms of the Films and Publications Act would, with respect, be constitutionally incompatible. “Only one state organ is authorised by the constitution to regulate broadcasts and that is the Independent Communications Authority”.

It said the code of conduct for broadcasters meant that licensed broadcasters were forbidden to broadcast scenes of sexual conduct or nudity involving people under 18 years of age or even those depicted as being under that age. Explicit violent sexual conduct was also forbidden, as was bestiality and degrading sexual conduct. These provisions were far stricter than those envisaged in the bill under discussion.

Under the guise of clamping down on child pornography, key clauses that exempt the news media from getting approval for the publication of certain material have been removed. On Wednesday a swathe of print media and media freedom organisations complained to Parliament’s home affairs committee that the removal of exemptions to the news media offended the constitutionally guaranteed press freedom and freedom of expression.

The Media Institute of SA (Misa), the South African National Editors’ Forum (Sanef), Print Media SA (the owners of newspapers), the Publishers’ Association of SA, the Magazine Publishers’ Association and the Media Monitoring Project have argued that the removal of the exemptions for news media was unconstitutional, and called for them to be reinstated.

From the various submissions made to the committee it was clear that should the amendments be passed into law without any changes, a Constitutional Court challenge would be almost a certainty.

ANC committee chairman Patrick Chauke told the committee that there was no intention from either the cabinet or Parliament to limit media freedom, but took aim at the South African tabloid market. He pointed specifically to the publication of pictures depicting the rape of children by drug dealers in a Cape tabloid.

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