Concern is mounting about attempts to deal with child pornography as a media, rather than a criminal issue.
The Film and Publications Board (FPB) and the Department of Communications have backtracked on an agreement reached almost two years ago to remove the criminalisation of child pornography from the Film and Publications Amendment Bill. This would allow the crime to be prosecuted under the Sexual Offences Act.
A September 2016 report of the Bill by the Department of Communications, titled DOC Responses to the Submissions by Stakeholders to the Film and Publications Amendment Bill,states that regional court magistrates, the National Prosecuting Authority and the South African Police Service all requested that the Department of Justice and Constitutional Development deal with child pornography coherently under one law: the Sexual Offences Act.
Despite this, the board and the Department of Communications appear determined to ensure that the criminalisation of child pornography is not left to the justice system alone. The department’s 2016 report, prepared by former acting director general Ndivhuho Munzhelele, is mostly a summary of agreements reached between the Departments of Communications and Justice during two meetings held in that year.
The report points out that South Africa is probably the only country in the world that deals with child pornography through a law that primarily relates to the classification of media.
“The current tendency to deal with child pornography in a law which does not specifically relates [sic] to the criminalisation of sexual offences hampers the further development of this important aspect and give [sic] rise to [a] fragmentary approach,” states the report.
It goes on to point out that in almost all other countries, this category of offence forms part of substantive criminal law, and that it has been agreed that the section of the Bill that criminalises child pornography be moved to the Sexual Offences Act. The document suggests that the Cybercrimes and Cybersecurity Bill could be used to do this.
Critics of the Amendment Bill from civil society and the legal fraternity accuse the board of “dramatic overreach”. They argue that the Bill has overlap with the Hate Crimes and Hate Speech Bill and the Cybercrimes and Cybersecurity Bill, both of which are better equipped to deal with crimes such as hate speech, revenge porn and cyber bullying.
They also argue that the Amendment Bill is in direct conflict with the South African Constitution and is likely to be challenged before the Constitutional Court. The Economic Freedom Fighters (EFF) has already threatened to take the Bill before the highest court in the land. The Bill has been approved by the National Assembly and is set to go before the National Council of Provinces next.
Critics question the stability of the board, arguing that it is an institution that is in crisis, with no chief executive or chief financial officer, and only an acting chairperson, following a spate of resignations and suspensions under questionable circumstances.
Critics are also concerned about the precedents set by the board’s controversial classification of South African feature films Inxeba (The Wound) and Of Good Report as pornography, as the Bill will give the board an even greater regulatory role.
It’s a criminal offence. Why is it the role of the FPB to deal with it? Where are the police in this?
William Bird, from the Media Development and Diversity Agency, agrees that there are many areas of overlap between the Amendment Bill and the Cybercrimes and Cybersecurity Bill. “They tread in very similar territory,” says Bird. “And they don’t speak to each other. There is dramatic overreach and overlap,” which, he says, seems completely unnecessary, citing examples of revenge porn and cyber bullying.
“Revenge porn is a big issue. It’s a criminal offence,” says Bird. “Why is it the role of the FPB to deal with it? Where are the police in this?”
A lawyer who New Frame spoke to on condition of anonymity says that many stakeholders hope that the Amendment Bill is held back and that the “far better law”, the Cybercrimes and Cybersecurity Bill, is the one that ends up regulating this area.
Bird says the Amendment Bill would take the board beyond its mandate to inform consumers to one in which it would play a regulatory role – from warning viewers what to expect and then letting them make their own decisions, to making decisions for them.
But, as Bird points out, this raises the question: “How do you classify the internet?” Bird admits that many cyber-related crimes require new laws to protect South Africans. “We have to do something about these things. There is a legitimate need for government to deal with our digital reality. You can’t just put whatever you want wherever you want, with no consequences.”
However, he says regulation of this nature needs a broad spectrum of role players. “Government can’t be the only player. The Facebooks and the Googles of the world also need to be sitting at the table. We need to figure out how we hold them to account. Who should be the body that does that?”
“The bill is too broad in its application,” says Bird. “It’s a lot better than the first draft, but by no means is it okay.”
Dominic Cull, head of Ellipsis, a company that provides legal advice mostly in the sphere of telecoms and broadcasting, says there is definitely a problem with hate speech online. “What’s going on online is completely unacceptable. There seems to be a case to make people aware that what is good for offline is also good for online.”
Many lawyers that New Frame spoke to queried the need for these new hate speech laws when South Africa’s crimen injuria law was recently used successfully to jail Vicki Momberg after her racist outburst in 2016 was caught on camera.
Legal consultant Justine Limpet-Law thinks it’s bad news that the Bill is attempting to criminalise hate speech. “It’s just crazy,” she says. “They don’t define hate speech properly. The definition is way too broad.”
The Constitution identifies race, ethnicity, gender and religion as identifiable group characteristics. The Bill attempts to expand the definition of hate speech to include sex, pregnancy, marital status, colour, sexual orientation, age, disability, conscience, belief, culture, language, birth and nationality.
Limpet-Law points out that under this new classification, criticism directed at paedophiles or racists could be considered illegal under the Bill, suggesting that the Bill is directly in conflict with the Constitution. She expects a number of parties to challenge the legislation, and says the Bill is in conflict with the Hate Crimes and Hate Speech Bill.
“They don’t speak to each other at all,” she says. “The penalties and the definitions are different. We should deal with hate speech in one bill and take it out of everywhere else,” says Limpet-Law.
When New Frame contacted the Department of Communications for comment, spokesperson Mlimandlela Ndamase referred the publication to the FPB, insisting it was driving the legislation process. However, when New Framecontacted the FPB, spokesperson Manala Botolo referred the publication back to the department, insisting the department was driving the legislation.
A week later, New Frame had still not received any answers from either party. After a last attempt was made to get comment from the department and the board, responses prepared in response to two other journalists, whose queries were unrelated to New Frame’s queries about the conflicts apparent in the three bills, were emailed.
Ndamase told New Frame that he could not speak to the 2016 agreement between the departments of justice and communications as he is new to the department, but said that the Bill had been before Parliament and Cabinet, where these issues could have been raised.
The Department of Justice did not respond to New Frame’s request for comment.