Print Media South Africa (PMSA) and the SANEF earlier this year brought an application to the High Court challenging the constitutionality of recent amendments to the Films and Publication Act. The amendments introduce a system of pre-publication classification for publications other than bona fide newspapers where such publication contains "sexual conduct which:
(i) violates or shows disrespect for the right to human dignity of any person;
(ii) degrades a person; or
(iii) constitutes incitement to cause harm".
The process is also backed up by a criminal penalty for non-compliance.
The specific complaints are that the compulsory submission to the Films and Publication Board of large numbers of mainstream publications dealing with matters of substantial public interest before distribution is unconstitutional, mainly because the said provisions are a limitation of the entrenched constitutional right to freedom of expression. The complaint is that the process will have severe negative consequences for the publication as well as the public.
Curiously the amendments exempt newspapers from this process but not magazines. The Minister of Home Affairs and the Board tried to justify this distinction on the basis that newspapers have a long history of responsible compliance with their code of conduct through self-regulation unlike magazines which are randomly published, sometimes by persons who do not fall within the codes of conduct that regulate members of Print Media South Africa and SANEF. The judge found these distinctions untenable especially considering publications such as the Mail & Guardian and Financial Mail, both of which are weekly publications, which deal with hard and sometimes sensitive issues manifestly in the public interest. They are also subject to the same system of self-regulation and comply with the code of conduct.
Sexual conduct is broadly defined by the Act and if a publication contains sexual conduct falling within the definition then submission for classification is required whether or not the article in question merely reports on the conduct or in fact advocates or promotes it. The classification committee is then required to examine the publication, page by page, from cover page to last page. Each page will have to be scrutinised by examining the visual presentation and text, allocate a rating for the publication and compile a report. That delay is potentially catastrophic for any publication.
It was argued by Print Media South Africa and SANEF that the practical implications of the section will lead to self-censorship by publishers, thus affecting freedom of expression. The court agreed that where one publication contains only one article that might contain sexual conduct then the entire publication must be submitted. The concern is that the resultant delay in publication caused by the classification requirements causes damages to freedom of expression and amounts to a limitation of section 16 of the Constitution.
The Court found that news is a perishable commodity and to delay even a short period may well deprive it of its value and interest. The consequences of this delay also affects magazines. Apart from fulfilling the public needs, the media usually provide full and detailed news coverage of topical, cultural, political and economic issues and this service is to the community as a whole rather than individual persons. It is for this reason that the public or citizenry should be fully aware of the advantages and disadvantages involved in free press.
The judge remarked that "it is probably no exaggeration to say that in all probability democracy cannot survive in the absence of freedom of expression".."I have no doubt that timeous communication is essential in a democratic system, for absent the right to receive, impart and give expression to information and ideas, there can be no meaningful talk or debates of liberal democracy. Consequently in a democratic society a system of prior restraint based on executive approval will operate as greater deterrent to freedom of expression and cause damage to fundamental democratic rights".
A further factor that resonated with the judge was that he was not referred to any example of any democracy where a mainstream publication has to be submitted to a censor or a classification committee before publication. The judge accordingly found that the amendments are unconstitutional and that to remedy the defect, the section can only be applied where a publication advocates or promotes sexual conduct as opposed to merely containing it. The court also held that the amendments are inconsistent with the Constitution and thus invalid to the extent that they exclude magazines from the protection afforded to newspapers. The orders made by the Court in this matter must now go to the Constitutional Court for confirmation. Finally the Minister of Home Affairs and the Board were ordered to pay the costs of the application.
Hoosain Karjieker, President of PMSA, said that the industry was pleased with the positive outcome of the court challenge which was the culmination of five years of engagement with this piece of legislation. “It is not only a win for the print media industry but also for freedom of expression and democracy”.
For further comment please contact:
Hoosain Karjieker PMSA President 011 250 7302
Ingrid Louw PMSA CEO 011 551 9600
Issued by Print Media South Africa (PMSA)