Internet Service Providers' Association

Advisory 3: The Film and Publications Act, No. 65 of 1996 and the Film and Publications Amendment Act, No. 34 of 1999

Release date: 22 May 2000
Author: Tracy Cohen

Relevance

Although the abovementioned legislation has been operative for some time, ISPA has recently been requested to participate in a series of meetings and a workshop hosted by the Film and Publications Board, on the combatting of Child Pornography on the Internet. As this issue contains numerous controversial and complicated constitutional and legal issues, this advisory has been prepared to assist ISPA members understand the legislation and the impact of the amendments.¹ Full copies of the legislation can be found at http://www.gov.polity.org.za

Introduction

The Film and Publications Act ("The Act") became operational on 8 November 1996 is the primary source of legislation regarding the classification of films and publications in South Africa. It repeals all other previous relevant legislation in this regard, most notably The Indecent or Obscene Photographic Matter Act, No. 37 of 1967 and The Publications Act, No. 42 of 1974. It also repeals all previous "homeland" publication laws and all consequent amendments.

The aim of the Film and Publications Act is to provide for the classification of certain films and publications; to establish a Film and Publication Board and a Film and Publication Review Board. On 30 April 1999, the Film and Publications Amendment Act No. 34 of 1999 ("The Amendment Act") was passed which made certain important changes to the principal Act from the Internet industry perspective.

What follows is an overview of both Acts and an indication of the important changes and questions that the Amendments raise for ISPs.

Overview

The structure and large parts of the substantial provisions of the Act bear a strong resemblance to the Publications Act of 1974, at least with regards to the kinds of material that can be banned or subject to serious restrictions in terms of distribution.

How does it work?

The Act sets up a Film and Publication Board and a Review Board. The Board is empowered to appoint classification committees consisting of a chief examiner, designated by the executive committee of the Board and at least one examiner to classify films and publications referred to them by the chief executive officer of the Board. The decisions of these committees are deemed to be decisions of the Board.

All films have to be classified before distribution. As in the past certain excisions can be ordered before a film can be publicly distributed. Publications will be assessed only on complaint, as under the previous Act.

"Publication", for the purposes of this Act, is defined very broadly, and was amended by the 1999 Act to include "any message or communication, including a visual presentation, placed on any distributed network including, but not confined to, the Internet." Appeals of decisions by the Board can be made to the Review Board and, with materials classified as XX or X18 to the High Court. A number of exemptions apply on XX and X18 classifications. Exemptions to restrictions on the distribution of films rated X18 apply to businesses classified as "adult" under the Businesses Act 1991.

An attached list of Schedules note the requirements for a publication or film to be classified in a particular way. Schedule 1 and 6 contains a list of criteria to classify a film and publication XX, respectively. These are a portrayal of child pornography; explicit violent sexual conduct; bestiality; sexual conduct which degrades a person and constitutes incitement to cause harm; or the explicit infliction of extreme violence or the explicit effects of extreme violence which constitutes incitement to cause harm. In terms of Schedules 2 and 7, an X18 rating will be given to a film or publication containing a "visual presentation, simulated or real, of explicit sexual conduct which, in the case of sexual intercourse, includes an explicit visual presentation of genitals". An R18 classification, in terms of Schedule 3, will apply to publications where it is deemed necessary to protect children against certain material and conditions for that publication's distribution will be imposed. Schedule 8 contains age restriction criteria on the same grounds as Schedule 3, although does not appear to have a rating. Schedules 5 and 9, list artistic and scientific exemptions for publications and films respectively. The exemptions do not however cover the ban on child pornography or depictions of such.

The Act has two sections dealing with the advocacy of war, violence and hatred, (section 29 and Schedule 10), the former creating an offence in this regard, the latter setting out criteria for classification of a publication or film as XX. In terms of these provisions it is an offence to exhibit, distribute or advertise unclassified films or films classified as XX. It is an offence to broadcast or distribute or exhibit films, plays and publications that advocate war or incite people to "imminent violence", or advocate hatred based on race, ethnicity, gender or religion and constitute incitement to cause harm. It is an offence to produce, import or be in the possession of child pornography or which is depicted as being child pornography.

The Act sets out the procedures for applications for classification of material, the rights and procedures with regard to appearances, and appeals to the Review Board and the High Court; and the exemptions to classification as well as to certain persons.

Offences

Chapter 7 sets out the offences for conduct contrary to classification. In such cases, the onus is on the State to prove the classification or that the Board has not given a decision which is to the effect that the film or publication does not fall within a particular Schedule or does not meet the criteria for classification. Penalties can be imposed on people who possess, distribute or exhibit such material contrary to classification, violate age restrictions, or exhibit films which have not been classified by the Board.

The Act also sets out the procedures for promulgating various regulations, a list of the schedules and repealed laws.

What's new in the Amendment?

Chapter 1

The following definitions have been added:

• "child pornography" includes any image, real or simulated, however created, depicting a person who is, or who is shown as being under the age of 18 years, engaged in sexual conduct or a display of genitals which amounts to sexual exploitation, or participating in, or assisting another person to engage in sexual conduct which amounts to sexual exploitation or degradation of children.

This definition is not in essence new. It is effectively the terms used in Schedule 1 and 6 of the Act.

• "publication" means-
  1. any newspaper, book, periodical, pamphlet, poster or other printed matter;
  2. any writing or typescript which has in any manner been duplicated;
  3. any drawing, picture, illustration or painting;
  4. any print, photograph, engraving or lithograph;
  5. any record, magnetic tape, soundtrack, except a soundtrack associated with a film, or any other object in or on which sound has been recorded for reproduction;
  6. computer software which is not a film;
  7. the cover or packaging of a film; and
  8. any figure, carving, statue or model;
     "any message or communication, including a visual presentation, placed on any distributed network including, but not confined to the Internet.
• "visual presentation" means
  1. a drawing, picture, illustration, painting or image, or
  2. drawing, picture, illustration, painting or image or any combination thereof, produced through or by means of computer software on a screen or a computer printout. (Deleted Photograph)

These two definitions taken together, clearly place the Internet within the investigative jurisdiction of the FPB, should a complaint in this regard be received.

Chapter 2

This sets out the objects of the Act and establishes the Film and Publication Board2 and theFilm and Publications Review Board 3 to reconsider the formers decisions. There is no restriction on membership of both Boards, but they are intended to be politically independent4. The objects of the Act have been substantially amended as follows:

2. The object of this Act shall be to:

1. regulate the creation, production, possession and distribution of certain publications and certain films, in the main by means of classification, the imposition of age restrictions and the giving of consumer advice, due regard being had in particular to the protection of children against sexual exploitation or degradation in publications, films and on the Internet; and
2. make the exploitative use of children in pornographic publications, films or on the Internet, punishable.

What has been deleted from the principal Act is the object qualifier, with "Due regard being had to the fundamental rights enshrined in the Constitution of the Republic." Whilst this does not per se make the Act unconstitutional, it does raise cause for concern as to the effect on enforcement of other fundamental rights.

Until the enactment of the Amendment, the President acting on the advice of an advisory panel appointed members to both Boards. The Act provided for a public nomination procedure designed and formulated in order to ensure that the public will be afforded the opportunity to take part in the process of finding suitable candidates in an open and transparent manner. Persons who could be considered were required to represent a broad cross-section of the South African community.

A substantial amendment here is the deletion of the clause that the public nomination procedure was to be designed and formulated to ensure that the public will be afforded the opportunity to take part in the process of finding suitable candidates in an open and transparent manner ⁵.

This section also sets out the disqualification with regard to membership of both Boards and sets the period of office for the Board and Review Board members⁶.

The section dealing with removal from office has also been amended. Prior to the amendment members could be removed from office by the President on account of misconduct or inability to properly perform the functions and duties of his or her office, provided that the member was afforded the opportunity, to state his or her case. The Amendment now enlarges the grounds for removal and provides that the Minister may remove a member of the Board or Review Board from office.

The rest of Chapter 2 remains unamended and makes provision for the establishment of Classification committees to deal with complaints or applications for classification. The administrative staff of Board and Review Board, Remuneration, Expenditure, the Annual Report and Functions of chief executive officer.

Chapter 3 - Publications

Chapter 3 sets out the provisions regarding complaints and applications for classification and re-classification of publications.

Classification of publications is done via a classification committee who upon submission to it of a complaint or an application, must examine and consider the content and with reference to Schedules 1⁷ , 2⁸ , 3⁹ and 4¹⁰ , read with Schedule 5¹¹, or with reference to Schedule 10¹² classify the publication as-

1. XX, if Schedule 1or 10 *
2. X18, if Schedule 2 *
3. R18, if Schedule 3, or *
4. F18, if Schedule 4 * Periodical publications
   *Publication (including soundtracks, but excluding films)

In the case of an F18 classification, the committee shall impose any or both of the conditions referred to in Schedule 3 (age restrictions and opaque wrappers) and shall inform the chief executive officer of its decision and the reasons therefor and of the classification (if any).

Chapter 4 - Films

This Chapter sets out the procedure for the applications for and classification of films. The classification committee shall examine a film referred to it and shall classify that film as-

1. XX if it falls under Schedule 6¹³ or 10¹⁴;
2. X18 if it falls under Schedule 7¹⁵;
3. R18 if it falls under Schedule 8¹⁶.

This section provides for the classification committee to order excision of portions of the film, place age restrictions on films or advise consumers of its material/content if it would place the film under another Schedule. The same exemptions apply for films as for publications.

Chapter 5

This chapter deals with the administrative provisions such as the right to appear, to be represented, to adduce evidence, to address the Boards, to have a case and arguments properly considered, and to be informed of the grounds of a decision made by the Board or Review Board.

Section 19 has been amended by including the Minister as a party who can lodge a complaint with the Board.

The remainder of the section is unchanged setting out the rights of parties in respect of hearings, representations and decisions¹⁷.

Section 20 is similarly amended to include the Minister as a party who may appeal in the prescribed manner against any decision of the Board.

Section 21 has been similarly amended to include the Minister as a party who may appeal against an XX or X18 classification in the High Court.

Chapter 6

This Chapter sets out the exemptions to the Act, namely:

• The exemption of certain persons from the offences sections of the Act f it has good reason to believe that bona fide purposes will be served by such an exemption¹⁸.
• Newspapers published and publishers who are members of the Newspaper Press Union of South Africa.
• The exhibition of films in the course of business as a distributor of films¹⁹.
• The executive committee of the Board has a discretion to exempt from any particular film, class of films, or any film intended for exhibition to a particular group of persons or under any particular circumstances, subject to conditions that the Board deems fit. This exemption may be withdrawn at any time following due process.
• Broadcasting licensees are exempt from the duty to apply for classification of films and are not subject to any classifications made or any condition impose in relation to the exhibition of the film by the Board.
• The holder of a licence to conduct the business of adult premises duly issued in terms of the Businesses Act, 1991 as long as such exhibition or distribution takes place within premises forming part of a building. This exemption can be suspended if various conditions are not met.

Chapter 7

This Chapter deals with conduct contrary to classifications and creates offences in this regard.

Persons will be guilty of an offence if they knowingly:

• Distribute or advertise for distribution material classified as XX, X18, R18 or F18 in conflict with a condition imposed, or publish any publication without having printed in such publication his or her name and the prescribed particulars of his or her business address.
• Exhibits in public or distributes a film which has not been classified or which has been classified as XX or X18; does not indicate a classification, age restriction and consumer advicein terms of a decision of the Board; exhibits in public or distributes any film without having been registered with the Board as an exhibitor or distributor of films; advertises a trailer for an X18 film without permission on a film or video that may not be exhibited or distributed to persons under the age of 18; exhibits in public or distributes a film in conflict with any condition imposed.
• Fail to issue the required certificate regarding a film which has been classified.
• Broadcasts a film which has been classified as XX, or has not been classified but which falls within Schedule 6 read with Schedule 9, or Schedule 10. However, the State must prove the classification concerned, or that the Board has not given a decision which is to the effect that the film referred to in that paragraph does not fall within Schedule 6 read with Schedule 9, or Schedule 10. No prosecution shall be instituted in terms of this section without the written authority of the Attorney-General concerned.

The only section of the offences which has been amended is section 27 regarding possession of certain publications and films. It provides that:

A person shall be guilty of an offence if he or she knowingly -

1. creates, produces, imports or is in possession of a publication which contains a visual presentation referred to in paragraph (a) of clause (1) of Schedule 1, read with Schedule 5; of child pornography; or
2. creates, distributes, produces, imports or is in possession of a film which contains a scene or scenes referred to in clause (I) of Schedule 6, read with Schedule 9, of child pornography.

The state must prove however that the Board has not given a decision which is to the effect that the publication or film referred to in that subsection does not contain a representation or a scene or scenes referred to in subsection (1). No prosecution on this provision shall be instituted and no search warrant shall be issued, without the written authority of the Attorney-General concerned.

Offences remain for knowing distribution of classified and restricted material in terms of Schedule 1 and 2 read with Schedule 5; material which, judged within context amounts to propaganda for war; incites to imminent violence; or advocates hatred that is based on race, ethnicity, gender or religion, and which constitutes incitement to cause harm. The same pertains to broadcasts, films and any entertainment or play in public which meets the criteria just listed. There are exemptions for a bona fide scientific, documentary, dramatic, artistic, literary or religious publications, films, entertainment or plays, or any part thereof which, judged within context amounts to a bona fide discussion, argument or opinion on a matter pertaining to religion, belief or conscience; or on a matter of public interest.

Prosecution for a contravention of this section shall be instituted only in the Supreme Court, and only under the written authority of the Attorney-General.

In terms of the penalties prescribed in the act, any contravention regarding distribution, public exhibition, broadcasting, production, importing, or possession; failure to excise content or meet conditions regarding an XX, X18, R18, F18 and Schedule 10 classification, can be sentenced to a fine or imprisonment not exceeding five years. A fine and/or imprisonment for twelve months can be imposed in terms of offences regarding the failure to notify of a classification, age restriction or consumer advice; failure to be registered as a distributor; advertises classified films inappropriately or fails to furnish certification of classifications.

Chapter 8

This Chapter deals with the making of regulations pertaining to the Act, its amendment and the repeal of laws, as well as the review of publications or films which prior to the commencement of this Act were subject to any prohibition or condition in terms of other legislation repealed by this Act.

Implications of the Amendment Act for ISPs

1. The implication of defining the Internet as "a publication" raises a myriad of issues. The main one being that any complaints pertaining to material or content prohibited by this Act, can be investigated, on complaint, by the FPB. That is, the FPB has jurisdiction for investigations of this nature.
2. The Act now defines "child pornography" but that definition is wide enough to be construed as targeting pornography that may in other circumstances be acceptable. For example, portraying someone to look as being under 18 years of age may impact on a large amount of acceptable pornography.
3. Pornography involving children is clearly illegal and if an ISP is aware of this material on their networks, or of a subscriber posting such material, it should be removed or stopped.
4. Further, the Act does not define "creator, producer, distributor," etc. to enable certainty as to the role of ISPs for content disseminated by third parties.
5. Definitional ambiguities and uncertainty as to who is a disseminator of information raises questions pertaining to privacy and freedom of expression.

SCHEDULES

Schedule 1 and schedule 6 have been amended to include the term "child pornography".

SCHEDULE 1
XX Classification for Publications

A publication shall be classified as XX if, judged within context
(1) it contains a visual presentation, simulated or real of-

1. child pornography;
2. explicit violent sexual conduct;
3. bestiality;
4. explicit sexual conduct which degrades a person and which constitutes incitement to cause harm; or
5. the explicit infliction of or explicit effect of extreme violence which constitutes incitement to cause harm;

(2) it or any independent part thereof, describes predominantly and explicitly the acts defined in clause (1)(a).

SCHEDULE 2
X18 Classification for Publications

A publication shall be classified as X18 if, judged within context-

1. it contains a visual presentation, simulated or real, of explicit sexual conduct which, in the case of sexual intercourse, includes an explicit visual presentation of genitals;
2. it describes, otherwise than in the case provided for in Schedule 1(2), predominantly and explicitly any or all of the acts described in Schedule I or clause (1).

SCHEDULE 3
R18 Classification for Publications

A classification committee or the Review Board shall classify as RI 8 and impose any or both of the following conditions on the distribution of a publication if it is of the opinion that judged within context, it is necessary to protect children in the relevant age group against harmful or disturbing material in the publication-

1. that it shall only be distributed to persons older than 18 years of age, or older than a specified younger age and that the publication shall bear a distinct notice of such restriction;
2. that it shall only be distributed in a sealed and, if necessary, opaque wrapper which shall also, if applicable, bear the notice referred to in clause (1).

SCHEDULE 4
F18 Classification for Periodical Publications

A periodical publication shall be classified as F 18 if the following six issues of such periodical publication are likely to contain material which falls within the scope of Schedule 3 and the publisher or his or her representative consents to such an order.

SCHEDULE 5
Art and Science Exemption for Publications

The XX or X18 classification shall not be applied in respect of a bona fide scientific, documentary, literary or, except in the case of Schedule 1(1)(a), an artistic publication, or any part of a publication which, judged within context, is of such a nature.

SCHEDULE 6
XX Classification for Films

A film shall be classified as XX if, judged within context, it contains a scene or scenes, simulated or real, of any of the following:

1. Child pornography;
2. explicit violent sexual conduct;
3. bestiality;
4. explicit sexual conduct which degrades a person and which constitutes incitement to cause harm; or
5. the explicit infliction of extreme violence or the explicit effects of extreme violence which constitutes incitement to cause harm.

SCHEDULE 7
X18 Classification for Films

A film shall be classified as X18 if it contains a scene or scenes, simulated or real, judged within context, of explicit sexual conduct which, in the case of sexual intercourse, includes an explicit visual presentation of genitals.

SCHEDULE 8
Age Restriction for Films

An age restriction may be imposed only if the classification committee or the Review Board is of the opinion that, judged within context, it is necessary to protect children in the relevant age group against harmful or disturbing material in the film.

SCHEDULE 9
Art and Science Exemption for Films

The XX or X18 classification shall not be applicable to a bona fide scientific, documentary, dramatic or, except in the case of Schedule 6(1), an artistic film or any part of a film which, judged within context, is of such a nature.

SCHEDULE 10
Promotion of Religious Hatred

1. A publication or a film which, judged within context, advocates hatred that is based on religion, and that constitutes incitement to cause harm, shall be classified as XX.
2. Clause (1) shall not apply to-
1. a bona fide scientific, documentary, dramatic, artistic, literary or religious publication or film, or any part thereof which, judged within context, is of such nature;
2. a publication or film, which amounts to a bona fide discussion, argument or opinion on a matter pertaining to religion, belief or conscience; or
3. a publication or film, which amounts to a bona fide discussion, argument or opinion on a matter of public interest.

SCHEDULE 11
Sexual Conduct

For the purpose of these Schedules "sexual conduct" means genitals in a state of stimulation or arousal; the lewd display of genitals; masturbation; sexual intercourse, which includes anal sexual intercourse; the fondling, or touching with any object, of genitals; the penetration of a vagina or anus with any object; oral genital contact; or oral anal contact.

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FOOT NOTES

1. This overview has been prepared to outline the operation of these laws. As it has been paraphrased and excludes certain sections of the Act, it is in no way to be interpreted as a legal opinion, article or a complete analysis of the abovementioned Act. It is an internal ISPA document for informational purposes.
2. To be comprised of a Chief Executive Officer and a number of personnel and examiners to be determined. Quorum is half the amount of members on the board.
3. To be comprised a Chairperson, plus eight members. Five comprises a quorum.
4. Section 3(2) The Board and Review Board shall function without any bias and shall be independent.
5. Section 6(2)(b)
6. Section 8(1) An examiner shall be appointed for a period of three years, and any other member of the Board or Review Board shall be appointed for a period of five years. All members are eligible for reappointment. Broadly speaking, XX is content which involves minors, explicit violent
7. Broadly speaking, XX is content which involves minors, explicit violent sexual conduct, bestiality, sexual conduct which degrades, or violent conduct which constitutes incitement to cause harm.
8. Broadly speaking, X18 contains or describes explicit sexual conduct, simulated or real, and includes an explicit visual presentation of genitals.
9. R18 is intended to protect children against harmful or disturbing material and will impose a condition that it is only distributed to persons older than 18 and bears a distinct notice of the restriction. Further, that it be distributed in a sealed and if necessary, opaque wrapper and also bear notice of the restriction.
10. This pertains to periodical publications, which shall be classified as F18 if the following six issues are likely to contain material which falls within the scope of Schedule 3 and the publisher consents to such an order.
11. Schedule 5 excludes the application of the XX or X18 classification in respect of bona fide scientific, documentary, literary or an artistic publication. There is no exemption for materials that involves minors and fits the description as set out in Schedule 1(1)(a) - which now forms the essence of the newly included definition of "child pornography".
12. Promotion of religious hatred.
13. Corresponds to Schedule 1.
14. Promotion of religious hatred.
15. Corresponds to Schedule 2
16. Corresponds to schedule 3, but only provides for an age restriction.
17. S 19 - The Minister or any person who has lodged a complaint with the Board that any publication be referred to a classification committee for a decision and classification, in terms of section 17 and any person who applies for a classification of a film, or the reclassification of a film or publication, or for a permit, exemption or licence, or who is the publisher of a publication which is the subject of an application for classification, or whose financial interests could be detrimentally affected by a decision of the Board on such application, or with regard to an exemption or permit, the withdrawal of which is being considered, or who appeals to the Review Board against a decision with regard to such an application, shall have the right- (a) to appear in person before the executive committee, classification committee or Review Board, or to be represented or assisted by a legal practitioner or by any other person of his or her choice, to adduce oral or written evidence and, subject to a reasonable time-limit imposed by the chairperson concerned, to address that committee or board, in the language of his or her choice; and (b) to have his or her case and arguments duly considered and to be informed, in writing, of the decision of the Review Board or committee, of the reasons for and grounds upon which such decision is based, which shall include, in the case of an XX classification of a publication or film, a reference to the particular clause of Schedule 1 or 6 which forms the basis of the decision, and of the names of the members of that board or committee who took part in rendering the decision of that board or committee
18. Sections 25, 27 and 28.
19. This applied to films that have not been classified as yet, or films that have been classified as X18.