2007 national association of broadcasters film and publications amendment bill - presentation to the...

2007

NATIONAL ASSOCIATION OF BROADCASTERS

FILM AND PUBLICATIONS AMENDMENT BILL -

PRESENTATION TO THE PORTFOLIO COMMITTEE ON HOME AFFAIRS

3 MAY 2007

2007NAB DELEGATION

• NOLO LETELE CEO, MULTICHOICE• JOHANN KOSTER Exec Director, NAB• BRONWYN KEENE YOUNG Channel Dir, e-tv• FAKIR HASSEN Policy and Reg, SABC• KAREN WILLENBERG Reg Affairs, M-NET• KWEZI MTENGENYA Reg Affairs,

MULTICHOICE

• DAN ROSENGARTEN Attorney• FAYEEZA KATHREE Advocate• STEVEN BUDLENDER Advocate

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2007OUTLINE OF PRESENTATION

• Introduction• Regulatory Environment• Constitutional Concerns• Issues relating to subscription

broadcasting• Conclusion• Questions

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2007

INTRODUCTION

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• NAB is the representative of the South African broadcasting industry

• Members include public, commercial and community television and sound broadcasters

• At the outset, the NAB wishes to confirm that:

– the NAB and its members share the Committee’s concerns regarding protection of children

– the NAB and its members are supportive of any attempt to eradicate the scourge of child pornography

– the NAB and its members are committed to responsible broadcasting

INTRODUCTIONINTRODUCTION

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• All members of the NAB are unanimous in their concern about the extent of the proposed amendments and the consequences for the independent regulation of broadcasting

• Television broadcasting members of the NAB will be directly affected - SABC, e-tv, M-Net and Multichoice have joined the NAB today to convey the concerns of the broadcasting community

• It is hoped that this joint presentation will:– assist the Committee by avoiding repetition of the

same issues; and– confirm that the concerns raised are shared by all the

broadcasters present today.

INTRODUCTION

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2007

REGULATORY ENVIRONMENT

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2007

• The stated intention of this Bill is to deal with child pornography

• Under the existing Act, “child pornography” is defined as:persons under the age of 18 engaging or participating in sexual conduct or showing the body of a person under the age of 18 in a manner that can be used for sexual exploitation

• S. 27(1)(a) of the Act already makes it a criminal offence to possess, create, produce, distribute or broadcast child pornography – up to five years imprisonment

• This already applies to all broadcasters – it is currently illegal for any broadcaster to broadcast child pornography

BROADCASTING CHILD PORNOGRAPHY IS ALREADY CRIMINALISED BY THE ACT

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• For any broadcaster to operate, it must be licensed by ICASA• The Electronic Communications Act already requires that all

licensed broadcasters comply with: The Code of Conduct of Broadcasters prescribed by ICASA; or Another Code of Conduct approved by ICASA – eg: the BCCSA

Code These two codes are practically identical

• The NAB has in addition and at the request of ICASA submitted a proposed Code of Conduct for subscription broadcasters

• All programming content broadcast by NAB members is also governed by: Individual license conditions of each broadcaster as set by

ICASA Internal editorial policies of each broadcaster

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2007


• The Codes prohibit the broadcast of materials which, judged within context, contains scene/s of child pornography bestiality, incest or rape explicit violent sexual conduct explicit sexual conduct which violates the right to human dignity

of any person or which degrades a person and which constitutes incitement to cause harm

explicit infliction of or explicit effects of extreme violence which constitutes incitement to cause harm

• The Codes prohibit broadcasters from knowingly broadcasting material which, judged within context amounts to propaganda for war incites imminent violence advocates hatred that is based on race, ethnicity, gender or

religion and which constitutes incitement to cause harm10

2007REGULATORY ENVIRONMENT

• Licensees are required to –– avoid broadcasting material, including promotional

material, which is unsuitable for children and/or contains nudity, explicit sexual conduct, violence or offensive language before the watershed period

– classify the programmes they intend to broadcast indicating appropriate age restrictions and whether contains nudity, sexual conduct, violence and offensive language

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• Broadcasters are required to report regularly to ICASA on their compliance with these codes and obligations

• The Code of Conduct is administered by the Broadcasting Complaints Commission of South Africa (BCCSA) which regularly submits reports to ICASA on broadcasters’ compliance.

• The Codes of Conduct and editorial policies balance the free speech provisions of the Constitution and the obligation to protect minors.

• They are underpinned by concept of adequate viewer information, public awareness and sensitivity in scheduling.

• Broadcasters already rely on and respect the classification guidelines of the FPB with regard to movies

• ICASA has just sworn in its Complaints and Compliance Committee as required by the ECA

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CONCLUSION ON THE STATUS QUO

• The broadcast of child pornography is already illegal and can be punished by up to five years imprisonment

• No licensed broadcaster has broadcast any child pornography

• All licensed broadcasters must comply with codes of conduct approved by ICASA

• All licensed broadcasters are monitored by ICASA to ensure compliance with these codes

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CONSTITUTIONAL CONCERNS

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THREE ASPECTS OF THE BILL ARE

UNCONSTITUTIONAL

• Clause 22(c) – subjecting broadcasters to the jurisdiction of the FPB

• Clause 16 – provisions dealing with classification of films

• Clause 24 – provisions dealing with the creation of offences

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2007NEGATIVE EFFECTS ON BILL’S LEGITIMATE AIMS

• The aims of preventing child pornography and preventing children from being exposed to harmful materials are laudable and important

• But if the Bill is enacted in its present form this will result in constitutional challenges and sections of the Bill will be declared unconstitutional

• This could have the consequence that important provisions which pursue the critical aim of preventing child pornography and hate speech are declared invalid because of their substantially overbroad effect

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CLAUSE 22(C) – SUBJECTING BROADCASTERS TO THE

JURISDICTION OF THE FPB IS UNCONSTITUTIONAL

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2007THE PROBLEM

• Current provision: Section 23(3) of the Act provides that broadcasters who have a broadcasting licence are not subject to the classification mechanisms of the FPB

• Proposed change: Clause 22(c) of the Bill proposes deleting section 23(3) of the Act in its entirety

• Consequence: Licensed broadcasters will have to submit all programmes to the FPB for classification and approval before broadcast

• Effect: The FPB will be required to regulate broadcasting

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ENCROACHMENT ON ICASA

• The independent authority established in terms of s192 of the Constitution is ICASA - not the FPB

• The Constitution only allows ICASA to regulate broadcasting

• The current Act respects this by exempting broadcasters from jurisdiction of the FPB

• The Bill destroys this carefully crafted position by giving FPB jurisdiction over broadcasters

• The Bill is in direct conflict with s.192 of the Constitution

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2007

FPB IS NOT“INDEPENDENT”.

• Section 192 requires any institution that regulates broadcasting to be “independent”

• The Constitutional Court has held that an institution is only “independent” if:

–The executive does not control the appointment of members of the institution; and

–The executive does not have the power to itself remove members of the institution; and

–Members of the institution have financial security free from interference by the executive

• The FPB does not satisfy any of these requirements - the Minister has almost complete control over the appointment, removal and salaries of members of the FPB.

• The Bill therefore conflicts with the Constitution by giving the FPB jurisdiction over broadcasters

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2007CONCLUSION –

CLAUSE 22(C)

• The clause is unconstitutional:– It subjects broadcasters to the jurisdiction of a

body other than ICASA– The FPB lacks the required level of independence

• If enacted the clause will likely be declared invalid by the Constitutional Court

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2007

CLAUSE 16 – THE PROVISIONS RELATING TO CLASSIFICATION OF FILMS ARE UNCONSTITUTIONAL

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2007THE PROBLEM

• Proposal: Clause 16 would require any person who intends to distribute or exhibit “any film” to submit that film for examination and classification by the FPB

• Problem: The Act defines “film” very broadly:“any sequence of visual images recorded on any substance, whether a film, magnetic tape, disc or any other material, in such manner that by using such substance such images will be capable of being seen as a moving picture”

• Effect: Therefore, any program broadcast on TV is a “film” in terms of the Act

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2007 THIS IS IMPRACTICAL

• The following programmes will have to be submitted to the FPB for classification and approval before they are broadcast-– Every movie– Every news bulletin– Every episode of every drama and series– Every current affairs programme– Every sports event

• Result: On average approx 96 hours of programming to be approved every day – excluding satellite

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2007 THIS WILL PREVENT

PROPER NEWS COVERAGE

• The effect of the Bill on news and current affairs programmes will be particularly devastating

• It will mean a delay in the broadcasting of every news bulletin

• Denying the public the right to hear what has happened even for a few hours is plainly undesirable and plainly violates freedom of expression

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2007THIS WILL PREVENT ALL LIVE COVERAGE

• Proposal: Every broadcast would have to be submitted to the FPB for classification and approval before broadcast

• Effect: All live broadcasts would cease

• Consequences:– No live news– No live parliamentary coverage– No live current affairs– No live sport– No live music

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2007THIS IS

UNPRECEDENTED

• The NAB and its members are unaware of any democratic country anywhere in the world that requires any news bulletin, documentary and sports event to be submitted to a pre-screening board for approval

• But the Bill proposes requiring every news bulletin, documentary and sports event being submitted to the FPB

…/2

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2007THIS IS

UNCONSTITUTIONAL• Section 16(1) of the Constitution guarantees the right to

freedom of expression• Courts in all democratic countries take the view that “prior

restraints” and “pre-publication censorship” of expression by the government or its institutions are generally unconstitutional

• The Constitutional Court takes the same approach to censorship:

“Having regard to our recent past of thought control, censorship and enforced conformity to governmental theories … we should be particularly astute to outlaw any form of thought control, however respectably dressed.”S v Mamabolo 2001 (3) SA 409 (CC) para 37

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2007PROPOSED

CLASSIFCATION CRITERIA

• Proposed s. 18(3)(a) requires that the FPB must classify a film as a refused classification if the film

“(i) contains depictions or sequences of child abuse, propaganda for war or incites imminent violence

(ii) advocates hatred based on any identifiable group characteristic unless the film, judged within context, is a bona fide documentary or film of scientific merit on a matter of public interest”

• A refused classification means that the film or programme could not be broadcast at all

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2007OVERBROAD EFFECT:

PROGRAMMES BANNED

• Almost every movie or documentary regarding the history of World War II contains a “depiction” or “sequence” of “propaganda for war” - banned

• News reports of comments by US President George W Bush might often be said to contain a “sequence” of “propaganda for war” - banned

• Legitimate movies demonstrating the suffering of children contain a “depiction” or “sequence” of “child abuse” - banned

• No defence of artistic merit available to avoid banning

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2007

Constitution restrictions: s16(2)

Bill restrictions: refused classifications and XX

Propaganda for war “contains depictions or sequences of propaganda for

war”

X

None “contains depictions or sequences of child abuse”

XNone “depicts explicit sexual conduct

which violates or shows disrespect for the right to human

dignity”

X

None “depicts conduct or an act which is degrading of human beings”

X

BILL’S RESTRICTIONS DO NOT ACCORD WITH CONSTITUTION’S

RESTRICTIONS

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PROVISIONS ARE UNCONSTITUTIONALLY

VAGUE• Proposed s. 18(3) so vague that they would be almost impossible for FPB to apply– What is explicit sexual conduct that “shows disrespect

for the right to human dignity”?– What is “an act which is degrading of human

behaviour”?– What is an act which “promotes harmful behaviour”?

• Constitutional Court has repeatedly made clear that overly vague legislation is unconstitutional

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2007CONCLUSION –

CLAUSE 16• The clause:

– Is impractical

– Would prevent proper news coverage

– Would prevent all live coverage

– Is unprecedented

– Is unconstitutional in a series of respects


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CLAUSE 24 – THE PROVISIONS DEALING WITH THE CRIMINAL OFFENCES ARE UNCONSTITUTIONAL

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2007THE PROBLEMS

• The criminal offences in the Bill have three main problems:– They violate freedom of expression– They are overbroad – prohibit far too much

legitimate expression– They are irrational – operate even if FPB has

approved film for broadcast• These problems affect most of the criminal

prohibitions in the Bill• Three examples follow

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2007

EXAMPLE 1 – BROADCASTING NON-

CLASSIFIED FILM

• Proposed s 24A(2)(a) - criminal offence to broadcast a film that has not been classified by the FPB

• Up to 5 years imprisonment

• Effect: A broadcaster must pre-submit every news bulletin, documentary, episode, movie, sports programme to the FPB for classification or face conviction

• As demonstrated above, this is unconstitutional

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EXAMPLE 2 – FILMS CONTAINING SEXUAL CONDUCT

• Proposed s.24A(4) and s24B(3) - criminal offence to distribute film containing “depictions, descriptions or sequences of sexual conduct” to person under 18

• Up to 5 years imprisonment• Sexual conduct defined as including “sexual intercourse”• Effect: No movie containing a scene of sexual intercourse

may be broadcast on television, because television is accessible to persons under 18

• This is so even if the movie has been approved by FPB for broadcast to persons under 18!

• The provision is unconstitutional – violates freedom of expression and is irrational.

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2007

EXAMPLE 3 –FILMS DEPICTING

ABUSE OF CHILDREN• Proposed s 24B(1) – criminal offence to broadcast any film containing

“depictions, descriptions or sequences” of the “abuse of children”• Up to ten years imprisonment• Effect: Broadcasting any film showing children being abused or

sexually exploited means committing a criminal offence• This is so even if:

• The whole point of the movie is to condemn the sexual exploitation of children

• The film plainly has serious dramatic, artistic and/or scientific merit

• The film has been submitted to the FPB and has been approved for broadcast or screening with or without an age restriction

• Provision is unconstitutional – violates freedom of expression and is irrational.

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2007CONCLUSION –

CLAUSE 24

• The clause is unconstitutional:

– Violates freedom of expression in a series of respects

– Overbroad

– Irrational


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2007CONCLUSION

• Three parts of the Bill are therefore unconstitutional• Clause 22(c) which subjects broadcasters to the

jurisdiction of the FPB• Clause 16 which deals with classification of films• Clause 24 which deals with criminal offences

• If enacted the clauses will likely be declared invalid by the Constitutional Court

• This could have the consequence that important provisions which pursue the critical aim of preventing child pornography and hate speech are declared invalid because of their substantially overbroad effect

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2007WAY FORWARD?

• Leave current exemption for broadcasters in place

• The current exemption still allows broadcasters to be prosecuted for broadcasting child pornography

• All other concerns are covered by ICASA in terms of the Electronic Communications Act, licence conditions and obligatory Codes of Conduct

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SPECIFIC ISSUES RELATING TO SUBSCRIPTION BROADCASTERS

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2007INTRODUCTION

• Subscription broadcasters such as MultiChoice and Sentech have additional concerns which will have a direct impact upon their ability to – Operate subscription broadcasting services Comply with the proposed amendments to the Act

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• Members of the NAB adhere and subscribe to the BCCSA Code of Conduct

• More recently at the request of ICASA, the NAB o.b.o the broadcasting sector submitted to ICASA a Code of Conduct for Subscription Broadcasting Licensees

• The Code takes into account the particular nature of subscription broadcasting services which is based on a direct contractual relationship between the service provider and the subscriber

• Subscription broadcasting services give subscribers freedom of choice and the ability to determine the content which they wish to view or listen to, or which the subscriber deems appropriate for his/her family

PROPOSED SUBSCRIPTION CODE

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2007PROPOSED

SUBSCRIPTION CODE• NAB has sought to ensure that, where appropriate, the

proposed Code of Conduct is consistent with – the legislative framework on broadcasting and the Films

and Publications Act with s16(2) of the Constitution and the Films and

Publications Act as regards content which may not be broadcast

• The definitions of words and phrases used in the Code of Conduct accord with those in the broadcasting legislation and where appropriate are identical to certain definitions in the Films and Publications Act – e.g the definitions of “child pornography” and “sexual

conduct”

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2007PROPOSED

SUBSCRIPTION CODE

• Where a Films and Publications Board classification exists such classification may be used by a subscription broadcasting service licensee

• All programmes on channels packaged outside South Africa, other than those which would be classified as family viewing in the country in which it is packaged, must also be classified

• The classification must indicate the appropriate age restriction for viewing or listening to a programme

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PROPOSED SUBSCRIPTION CODE

• Subscription broadcasting licensees are required to – provide clear and consistent information to its audience about

the classification thus enabling the audience to select programming they do not wish to view or they do not wish their children to view

implement adequate mechanisms to enable a subscriber, using a mechanism such as a pin number, to block a programme, based on the classification of the programme or a channel included in its service

ensure that any decoders which it promotes or sells are capable of allowing a subscriber to block any programme, based on the classification of the programme, or channel included in its service

inform all its subscribers of the parental control mechanism available and provide the subscriber with a step-by-step guide on how to use it (“parental control guide”)

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2007PROPOSED

SUBSCRIPTION CODE• The proposed Code of Conduct was drafted with reference to

s23(3) of the Films and Publications Act which exempts broadcasters from the requirement of classification

• Its dovetailing with certain provisions of the Act will adequately protect children from being exposed to the broadcasting of disturbing, harmful and age inappropriate material

• The proposed code, as far as broadcasters are concerned, will prevent the sexual exploitation of children and exposing children to pornography

• It is therefore not necessary to amend the current Act in relation to the broadcasting sector

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2007PACKAGING OF CHANNELS

AND BOUQUETS• Subscription broadcasters package channel bouquets which

may broadcast across multiple territories: content of pre-packaged channels cannot be altered to suit

individual territories not able to edit or interfere with business models or

programming that constitutes these channels channel suppliers do not allow content changes or

insertions to a channel without consent has no control over content of channels it acquires

• However, subscribers have the ability to prevent the viewing of, or listening to, content on the service and to block content which they deem inappropriate

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2007MULTICHOICE

• Provides subscription broadcasting services in South Africa to about 1.3m subscribers and to over 50 other African countries

• Acquires channels from South Africa and international channel suppliers. MultiChoice cannot tamper with the content of these channels which include:

– CNN, BBC, SkyNews

– Hallmark, BBC Prime, Discovery, Disney

• Channels packaged for a number of territories spanning five time zones

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2007COMPLIANCE IMPOSSIBLE

• Accordingly, compliance with a number of the proposed amendments to the Bill is impossible; and will have a direct negative impact on ability of MultiChoice

to provide a subscription satellite broadcasting service• Why?

Definition of film covers all audio-visual broadcasting content of MultiChoice including news, documentaries and movies on channels received from outside the country, eg: CNN, BBC

s18 requires all films not classified, exempted or approved in terms of Films and Publications Act to be submitted for examination and classification

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2007

COMPLIANCE IMPOSSIBLE

• If film approved for exhibition in public, then broadcaster required in terms of new s18A to display classification, consumer advice, or any other condition imposed by Board with respect to exhibiting film in public on all advertisements and all illustrated exhibitions associated with the film This is impossible on pre-packaged channels

• If film not approved, s20 provides for appeal to the Appeal Board Appeal Board may refuse appeal, allow appeal, wholly or

in part, and give such decision as the Film and Publications Board should, in its view have given

Appeal Board may also amend classification of the film and impose conditions in respect of exhibition thereof

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2007OFFENCES

• By virtue of repeal of s24A and s24B, should a subscription broadcaster – exhibit film without registering with Board broadcast or advertise film which has not been classified advertise film in any medium without indicating age

restriction, consumer advice and any other conditions imposed on the film advertised

without prior approval of the Film and Publications Board, exhibit in public during same screening session a trailer advertising film with a more restrictive classification

• then it will be guilty of an offence and liable upon conviction to a fine or imprisonment for period not exceeding 5 years or to both a fine and imprisonment

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2007OFFENCES

• Proposed amendments therefore impose a harsh sanction for failure to comply with proposed s18

• Given the particular nature of a digital subscription broadcasting service such as MultiChoice, it is clear that it would be impossible to comply. Why?– It has no control over the content of the channels it acquires – Therefore compliance with classification, age-restrictions and

audience advice requirements of proposed amendments would be impossible

– Resultant consequences of such non-compliance could be far reaching and serious

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2007EXEMPTION FROM

PROSECUTION• s22 of proposed amendment to Act provides Board with

discretion to exempt broadcasters from prosecution

• If Board decides to exempt film, it has powers to impose “such conditions as it deems fit”– s18 grants extremely wide powers to the Board to impose

conditions– Because MultiChoice has no control over the content of

the channels that it broadcasts, this would still be unachievable

• The exemption provisions do not address concerns raised by MultiChoice and other broadcasters as they still constitute prior approval of what may be broadcast

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2007 SELF REGULATION

• It is precisely for this reason that the regulatory / legislative framework for licensed broadcasters sanctions self-regulation in relation to broadcasting content

• The Bill does not take into account self-regulation in the broadcasting sector

• It fails to recognise the protections against children being exposed to disturbing, harmful and age-inappropriate material that have been put in place under the BCCSA Code, the proposed subscription Code of Conduct and the role of ICASA and the BCCSA in enforcing these Codes

• It also fails to recognise efforts made by the broadcasting industry to comply with these Codes

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2007

CONCLUSION

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2007CONCLUSION

• With regard to broadcasting, there are a number of statutory and self-regulatory measures in place to protect children from being exposed to disturbing, harmful and age-inappropriate material as well as from pornography and sexual exploitation

• The Government has stated that the primary purpose of the Bill is “to protect children from potentially harmful, age-inappropriate material” and from “exposure to violence and sexual abuse.”

• Unfortunately, the Bill does not allow for this purpose to be effectively achieved since it attempts to amend the current dispensation applicable to broadcasting service licensees– when this is unnecessary given existing regulation; and– to do so will be to create serious constitutional difficulties

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2007

• We thank the Committee for the opportunity to appear before you today

• The NAB and its members wish to re-affirm their support for the work of the Committee in protecting children against harmful content

• The concerns raised by the broadcasting community do not seek to frustrate the goals of the Committee, but to ensure a dynamic broadcasting sector which, as guaranteed by the Constitution, is subject to independent regulation.

• We trust our concerns will be addressed by the Committee in your deliberations on this Bill

CONCLUSION

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2007

THANK YOU

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