FILMS AND PUBLICATIONS AMENDMENT BILL 2006

1. FILMS AND PUBLICATIONSAMENDMENT BILL2006 Presentation to National Council of Provinces 12 September 2007 Caring, compassionate and responsive

2. BACKGROUND The purpose of the Films and Publications Amendment Bill, 2006 is to amend the Films and Publications Act, 1996 (Act No. 65 of 1996), hereinafter referred to as “the Act”, in order to insert and delete certain definitions, to establish and provide for the powers and duties of a Council, to provide for the appointment and functions of compliance officers, to provide for the composition, functions and management of the Board and to repeal certain Schedules to the Act. Caring, compassionate and responsive 2

3. Clause 1Amendment of Section1 • To amend the definition of “child pornography” in order to include any image or description of a person who is or who is depicted, made to appear, look like, represented or described as being under the age of 18 years. • To define “game”, “identifiable group characteristic” and “matters of public interest” as introduced into the Act by the Amendment Bill. • To define “newspaper” in order to include the on-line publication of a newspaper. Caring, compassionate and responsive 3

4. Clause 2 Amendment of Section 2 Clause 2 amends section 2 by including the regulation of the creation, production, possession and distribution of films, games and certain publications by means of classification with the aim of protecting children from exposure to disturbing, harmful or age-inappropriate materials. It further aims to protect children against the exposure to pornography by making the use of children in and exposure of children to pornography punishable. Thank You Caring, compassionate and responsive Caring, compassionate and responsive 4

5. Clause 3Amendment of Section3 • Clause 3 amends section 3 of the Act in order to establish the Films and Publication Board (which is defined in the Act as “the Board”), Council and Appeal Tribunal. • Section 3 is further amended in order to provide that the Board and the Appeal Tribunal shall be independent and shall function without any bias. • The seat of the Board shall be determined by the Council in consultation with the Minister. Caring, compassionate and responsive 5

6. Clause 4Amendment of section 4 • Section 4 is amended in order to provide for the composition of the Council that is established in clause 3of the Amendment Bill. • The Council shall consist of a chairperson and deputy chairperson (appointed by the Minister), as well as such number of members as the Minister may appoint, not exceeding seven, and the chief executive officer. Caring, compassionate and responsive 6

7. Clause 5Insertion of section 4A • Clause 5 inserts section 4A into the Act after section 4 in order to provide for the powers and duties of the Council. Most importantly, the powers of the Council include the appointment of the chief executive officer in consultation with the Minister and to appoint such number of classifiers with the necessary experience and qualifications as may be required, having regard to the likely volume of applications and submissions made in terms of this Act. Caring, compassionate and responsive 7

8. Clause 6Amendment of the heading to section 5 The amendment seeks to substitute the heading of section 5 with “Composition of Appeal Tribunal”. Clause 7Amendment of section 6 The amendment seeks to substitute reference to “Review Board” for “Appeal Tribunal” in the heading and the contents of the section and provides that a member of the Council shall be appointed by the Minister by notice in the Gazette. Caring, compassionate and responsive 8

9. Clause 8 Amendment of section 7 The amendment seeks to amend the heading to section 7, as well as the contents of the section in order to provide for disqualifications with regard to membership of the Council or Appeal Tribunal. Clause 9Amendment of section 8 The amendment seeks to substitute reference to “Board” for “Council” and “Review Board” for “Appeal Tribunal” in the heading and substitutes subsection (1) in order to provide that the period of office of the members of the Council and Appeal Tribunal shall be five years. Caring, compassionate and responsive 9

10. Clause 10Amendment of Section 9 • This section substitutes “Board” for “Council” and “Review Board” for “Appeal Tribunal” and provides for the removal from office. • This section is further amended in order to align it with the generally accepted drafting principles. Caring, compassionate and responsive 10

11. Clause 11 Insertion of section 9A • The new section 9A, inserted after section 9, provides for the composition, functions and management of the Board. • The Board shall consist of the CEO, who shall be responsible for all matters relating to administration and management, and such number of officers as may be determined by the Council. The CEO is empowered to delegate any power conferred on him or her. Caring, compassionate and responsive 11

12. Clause 12 Amendment of section 10 • Section 10(1) is amended in order to provide that the Board shall appoint classification committees as may be prescribed. • Section 10(2) is amended in order to provide that the decisions of the classification committees shall be taken by a majority of votes. Where there is an equality of votes, the Board shall appoint an additional member to such committee to come to a majority decision. Caring, compassionate and responsive 12

13. Clause 13 Amendment of section 11 The heading to section 11, as well as the contents, is amended to substitute reference to “Board” and “Review Board” for “Council” and “Appeal Tribunal” respectively and provides for administrative support. Clause 14 Amendment of section 12 The heading to section 12, as well as the contents, is amended to substitute reference to “Board” and “Review Board” for “Council” and “Appeal Tribunal” respectively and provides for remuneration. Caring, compassionate and responsive 13

14. Clause 15 Amendment of section 13 • Subsection (1) is amended by substituting references to “Board” and “Review Board” for “Council” and “Appeal Tribunal” respectively. • Clause 15 further seeks to remove the words “in respect of all money referred to in subsection (1)” as they appear in subsection (2). • This will clearly emphasize the accountability of the CEO in respect of all functions assigned to him or her, without limiting the accountability to money. Caring, compassionate and responsive 14

15. Clause 16 Amendment of section 14 • Clause 16 amends section 14 in order to provide that the Council shall prepare a report on all the activities of the Council and the Appeal Tribunal at the end of each financial year. • The annual report, together with the audited balance sheet and accounts pertaining to the funds of the Council and the Appeal Tribunal shall be submitted to the Minister for tabling in Parliament. • Reference to “Board” and “Review Board” is substituted for “Council” and “Appeal Tribunal” respectively. Caring, compassionate and responsive 15

16. Clause 17 Repeal of section 15 • Clause 17 repeals section 15 of the Act which deals with the functions of the chief executive officer. • The chief executive officer’s functions have been included in the new section 9A that is inserted by clause 11. • The chief executive officer shall be responsible for all matters relating to the administration and management of the Board. Caring, compassionate and responsive 16

17. Clause 18 Insertion of section 15A • Clause 18 inserts section 15A after section 14 of the Act to provide for the functions of compliance officers. • The powers of compliance officers include entry to any premises for purposes of advising distributors and exhibitors of films and games of the requirements of the Act regarding distribution and exhibition of films and games. • Furthermore, to examine or inspect any premises and to instruct that films and games that do not comply with the requirements of the Act or the decision of the Board be removed from any display or offer for sale or hire. • The Act can not authorise compliance officers to seize films or games as compliance officers have not been declared as Peace Officers by the Minister of Justice in terms of the Criminal Procedure Act, 1977 (Act No. 51 of 1977). Compliance officers may therefore, in terms of section 15A(3), request the assistance of a police official of the South African Police Service. THANK YOU Caring, compassionate and responsive 17

18. Clauses 19 and 20 Amendment of sections 16 and 17 • Sections 16 and 17 of the Act provide for the classification of publications and must be read together with Schedules 1, 2, 3, 4 and 5 to the Act. • The effect of the proposed substitution for section 16 by clause 19 is to bring the contents of the Schedules within the classification section of the Act. • Section 16(1) provides that any person may, in the prescribed manner, request that a publication which is to be distributed in South Africa, be classified. However, a newspaper that is published by a member of the Newspaper Association of South Africa (“NASA”), is exempted from such request. The effect would thus be that newspapers not published by a member of the NASA would be subject to classification. • Section 16(2) include reference to the categories of unprotected speech, listed in section 16(2) of the Constitution, 1996. Caring, compassionate and responsive 18

19. Clauses 19 and 20 Amendment of sections 16 and 17 (continued) • Another effect of the amendment of section 16(2) is that the publisher of a newspaper who is also a member of the NASA, is exempted from the obligation to submit such newspaper for classification. • In terms of section 16(2) a newspaper published by someone who is not a member of the NASA would be obliged to submit such newspaper for classification if it contains visual presentations, descriptions or representations amounting to any of the items listed in paragraphs (a) to (d). • Section 17 is repealedby clause 15. • The new section 16 contains the provisions of sections 16 and 17 of the Act. Caring, compassionate and responsive 19

20. Clause 21 Amendment of section 18 Clause 21 substitutes section 18 (which must be read with Schedules 6, 7, 8 and 9) of the Act in order to ensure effective application of the Act by bringing the contents of the relevant Schedules and also the categories of unprotected expressions (listed in section 16(2) of the Constitution, 1996) within the scope of the classification section. Caring, compassionate and responsive 20

21. Clause 22 Insertion of sections 18A and 18B • Clause 22 inserts section 18A in order to lay down the requirement for, and the form of, display of certain information relating to a film, game or publication that has been classified or exempted from classification in terms of the Act. • This clause further empowers the Board to make regulations prescribing the format and the manner of the display of certificates of classification on films, games and publications approved for distribution. Caring, compassionate and responsive 21

22. Clause 22 Insertion of sections 18A and 18B (continued) Section 18B deals with re-classification and it provides that a film, game or publication that was first examined and classified in terms of the Act may, upon application, be re-classified after two years for a less restrictive classification. Caring, compassionate and responsive 22

23. Clause 23 Amendment of section 19 • Section 19 deals with the right to appear, to be represented, to adduce evidence, to address the committee, to have a case and arguments properly considered and to be informed of the grounds of a decision. • Clause 23 amends section 19 in order to align its contents with the other amendments contained in the Amendment Bill. Caring, compassionate and responsive 23

24. Clause 24 Amendment of section 20 • The amendment seeks to make the appeal procedure available to any person who applied for classification of a film, game or publication or lodged any complaint with the Board by appealing against any decision or finding of the Board, to the Appeal Tribunal in the prescribed manner. • The amendment further removes reference to the Schedules to the Act in subsection (3). • The amendment also provides in subsection (4) for the issuance of a certificate of registration or exemption by the CEO in the case of a successful appeal. Caring, compassionate and responsive 24

25. Clause 25 Repeal of section 21 • Clause 25 repeals section 21 of the Act which provides for appeal to the Supreme Court. • The Act already provides for an appeal procedure in instances where a complainant is not satisfied with a decision of the Board, to appeal to the Appeal Tribunal. • The Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000) in itself provides for judicial review of administrative actions in a court of law when all internal remedies have been exhausted. It is therefore not necessary for the Act to contain a clause in this regard. Caring, compassionate and responsive 25

26. Clause 26Amendment of Section 22 • This amendment re-aligns section 22 with the amendments effected by clauses 30 and 32 which delete sections 25, 27 and 28 referred to in section 22. • Subsection (3) that exempts newspapers from compliance with the Act, is further repealed by this amendment. However, the exemption from having to submit a newspaper that is published by a member of NASA for classification, is now contained in section 16(2). Caring, compassionate and responsive 26

27. Clause 27 Amendment of Section 23 • This amendment re-aligns section 23 with the amendment effected by clause 30 which repeals section 26 referred to in section 23. • This amendment further seeks to exempt games from the prohibition contemplated in section 24A(1), (2)(a) and (3). • Subsection (3), which exempts the holder of a broadcasting license from the duty to apply for the classification of a film or game is amended to provide that only a broadcaster who is subject to regulation by the Independent Communications Authority of South Africa (“ICASA”) shall be exempt from the duty to apply for classification of a film or game for the purposes of broadcasting. • However, any broadcaster (including broadcasters who are subject to regulation by the ICASA) wishing to distribute a film or game (i.e. on DVD or video cassette) would still have to submit such film or game for classification. Caring, compassionate and responsive 27

28. Clause 28 Amendment of Section 24 This clause amends section 24 of the Act in order to delete certain superfluous words and to include the regulation of films and games. Caring, compassionate and responsive 28

29. Clause 29 Insertion of sections 24A, 24B and 24C • The new sections 24A and 24B deal with the prohibitions, offences and penalties on distribution, exhibition and possession of films, games and publications. • In terms of section 24A(2)(b) and (c) and 24A(3)broadcasters regulated by the ICASA may not broadcast any film or game which has been classified by the Board as a “refused classification”, “XX”, or “X18”. • In terms of section 24A(2)(a) newspapers published by a member of the NASA and broadcasters regulated by the ICASA may thus publish and broadcast materials that have not been classified by the Board and shall not be guilty of an offence in terms of this Act but will still be subject to regulations by the NASA and the ICASA in relation thereto. • The new section 24C creates obligations for internet access on service providers who provide child-oriented service, including chat-rooms. Caring, compassionate and responsive 29

30. Clause 30 Repeal of Sections 25, 26 and 27 • Clause 30 repeals sections 25, 26 and 27. • The contents of section 27 has been retained in the new section 24B. • The new section 24B thus now deals with certain prohibitions and creates certain offences and penalties in the possession of films, games and publications. Caring, compassionate and responsive 30

31. Clause 31 Amendment of Section 27A Section 27A, which deals with the registration and other obligations of internet service providers, is amended by the substitution of subsection (4) in order to provide for a penalty for failure to comply with the provisions of this section. Caring, compassionate and responsive 31

32. Clause 32 Repeal of Sections 28 and 29 • Section 28, which prohibits distribution of certain publications and section 29, dealing with advocating war, violence and hatred, are repealed by clause 32. • The contents of section 29 is contained in the new section 16. • It should be noted that although the reference to categories of unprotected speech have been aligned with those listed in section 16(2) of the Constitution, 1996, an additional category has been inserted (i.e. “sexual conduct”) and the category of “advocacy of hatred” has been extended in order for it to be based on “any identifiable group characteristic and that constitutes incitement to cause harm”, and not only “based on race, ethnicity, gender or religion...” as provided for in section 16(2) of the Constitution, 1996. • The effect of this amendment is to align the Act not only with section 16(2) of the Constitution, 1996, but also with section 9 of the Constitution, 1996 which deals with equality. Caring, compassionate and responsive 32

33. Clause 33 Amendment of Section 30 • This amendment deletes subsections (1), (1A), (2) and (3). • This amendment re-aligns section 30 with the amendments effected by clause 30 which deletes section 26 referred to in subsection 4(a). Caring, compassionate and responsive 33

34. Clause 34 Amendment of Section 30B Clause 34 includes the regulation of games. Caring, compassionate and responsive 34

35. Clause 35 Substitution of Section 31 • Clause 35 contains the amendment of the Minister’s authority to make regulations regarding fees, the nomination of persons as candidates for the Council or Appeal Tribunal and to make regulations relating to inter alia forms and certificates. Caring, compassionate and responsive 35

36. Clauses 36 and 37 Repeal of section 32 and Schedules to the Act • Clause 36 repeals section 32, which deals with the review of certain decisions with regard to publications and films. • Clause 37 repeals Schedules 1 to 10. • The substance of Schedules 1 to 10 is contained in the new sections 16 and 18. Caring, compassionate and responsive 36

37. Clause 38 Substitution of words Clause 38 provides for the substitution for the words “Review Board”, wherever they occur in the Act, of the words “Appeal Tribunal”. Caring, compassionate and responsive 37

38. Clause 39 Transitional Provisions Clause 39 provides for transitional provisions in order to allow for the implementation of the Act with its current provisions pending the commencement of the Bill. The proposed amendment will take effect once the Amendment Act has been promulgated. Caring, compassionate and responsive 38

39. Clause 40 Short title and commencement Clause 40 identifies the title by which the proposed amendments shall be called and furthermore provides for the date on which the proposed amendments will come into operation. Caring, compassionate and responsive 39

40. THANK YOU Caring, compassionate and responsive 40