South Africa: Clear Danger in Vague Phrases

Regulation & Policy

Controversial proposed amendments to the Film and Publications Act have resulted in an outcry from media organisations and civil society institutions. While much of the debate has focused on the proposed removal from the act of sections exempting broadcasters and the press, the amendment bill in other ways significantly intensifies restrictions on the free flow of information.

The bill substantially increases the scope of publications required to be submitted for classification. The existing act requires that people intending to publish, distribute or exhibit publications with sexually graphic and violent scenes, descriptions and depictions must submit such publications to the Film and Publication Board. In terms of the act, all films must be submitted to the board for classification.

The bill requires that any film or publication containing any visual presentations, depictions or representations amounting to sexual conduct, propaganda for war, incitement to imminent violence or the advocacy of hatred based on any identifiable group characteristic must be submitted for classification by the classification office (a new body envisaged by the bill) before it may be distributed or exhibited.

The bill draws no distinction between graphic and subtle depictions or descriptions of sexual conduct. Accordingly, on the face of it, even the mildest erotica or a pamphlet on sexual health would be required to be submitted for classification. If enforced rigorously, this could stifle debate on public health issues such as HIV/AIDS.

In addition, what constitutes propaganda for war or incitement to imminent violence is inherently subjective and could be manipulated for political ends. The extension of the number and range of films and publications that will be required to be submitted for classification could lead to self-censorship and have an effect on the sociopolitical debates central to any functional democracy.

The bill also significantly alters the classification categories and classification criteria applicable to films and publications.

Under the act, films and publications can be classified as XX, X18 or have an age restriction applied to them. The exhibition and distribution of XX publications is illegal, while the distribution and exhibition of X18 publications is regulated. In general, X18 publications may only be distributed from or exhibited in licensed adult retail outlets. But the bill will establish a further classification category -- "refused classifications". Like XX films and publications, the distribution and exhibition of refused classifications will be banned altogether. The bill will thus result in a larger number of films and publications being banned outright.

The classification criteria set out in the bill are far more broadly framed than those in the act, which are more concrete and specific. For example, under the act, visual depictions or descriptions of explicit violent sexual conduct or bestiality, rape or incest will result in a film or publication being classified XX. However, in terms of the bill, films and publications containing descriptions or depictions of "explicit sexual conduct which violates or shows disrespect for the right to human dignity of any person", "conduct or an act which is degrading of human beings" and "conduct or an act which constitutes incitement to or encourages or promotes harmful sexual behaviour" will result in an XX rating. The broadness of these classification criteria , together with the fact that they are based on subjective and moralistic notions of what constitutes "harmful sexual behaviour" and "conduct which is degrading of human beings", will arguably result in a great many sexually explicit films and publications, which would previously have been classified as X18, being classified as XX.

The breadth and inherently subjective nature of the bill's classification concepts are also likely to result in the further stigmatisation of minority sexualities and minority sexual practices.

The proposed amendments to the act are being carried out purportedly to protect children from sexual exploitation. However, even if the exemption of broadcasters and the press from the provisions of the act is ultimately retained in the amended version, the proposed amendments are likely to erode freedom of expression by causing an unreasonably high number of films and publications to be banned from distribution altogether.

Business Day (Johannesburg), 28 May 2007