Press freedom under threat

The proposed Films and Publications Amendment Bill, recently tabled in Parliament by the Minister of Home Affairs, is a threat to our constitutionally guaranteed freedom of expression, which includes the freedom of the press and other media. Our courts have long recognised the centrality of these freedoms for the success and sustenance of our democratic order.

The proposed amendments seek to bring print and broadcast media, which were previously exempted, under the jurisdiction of the Films and Publications Act. Fortunately the enactment of this bill into law has been stalled.

In a recent pronouncement Justice O’Reagan held that, “freedom of expression is integral to a democratic society for many reasons. It is constitutive of the dignity and autonomy of human beings. Moreover, without it, the ability of citizens to make responsible political decisions and to participate effectively in public life would be stifled. The print, broadcast and electronic media have a particular role in the protection of freedom of expression.”

The bill, which has the intention of protecting our children from pornographic and other unsuitable material, requires pre-publication permission from the Film and Publications Board for the printing or broadcasting of anything that is considered to be pornographic or covers prohibited acts such as may degrade persons or constitute incitement to cause harm. The Publications Board will be appointed by and therefore accountable to the minister. However, good legislative intentions are not enough, the practical implementation and the ramifications of the legislation are what matters.

This bill will prove very costly for our media. Given the volume of both print and broadcast media in our country it is impossible to see how this will be applied without tampering with the freedom of our press. This is reminiscent of the apartheid era censorship.

Sanef, FXI and Misa-Sa have rightly pointed out that, “Media will probably be forced to expunge large amounts of their news coverage from their pages or broadcasts and submit to procedures that will prevent papers from being distributed on a daily or weekly basis and result in broadcasters having to delay news broadcasts”.

Unnecessary complexity in the law governing freedom of expression will follow if this bill should be adopted. Our constitution already has in-built limitations to these freedoms, including the limitations clause contained in section 36 of the constitution. It is hard to see how the limitations imposed by the proposed amendments to the Films and Publications Act will be found to be ‘reasonable and justifiable in an open and democratic society’.

There are already adequate institutions and measures to deal with media transgressions, which increases the undesirability of the proposed amendments. We have the Press Ombudsman, The Independent Broadcasting Authority and the Independent Communications Authority of South Africa (ICASA). These institutions were established with a view to having media morals adjudicated by independent bodies. Compare this much-desired independent adjudication with the fact that the Films and Publications Board will be accountable to a cabinet minister who is part of the executive branch of government and therefore not independent.

One cannot decipher the true intention of the government in introducing these amendments. There is an assumption in law that all legislation is intended to remedy a particular situation and there is no clear indication as to what situation these new proposed laws seek to remedy.

Any average follower of the print and broadcast media in South Africa will attest to the fact that our children are not exposed to the ills mentioned by the bill in materials emanating from the print and broadcast media. What then is the true intention of the government? What the bill will do is to subject the media to the constant uncertainty they endured under the apartheid government, a situation the government surely does not wish to recreate.

Author: Langa Bodlani is a researcher with the Law Review Project. This article may be republished without prior consent but with acknowledgement to the author. The views expressed in the article are the author’s and are not necessarily shared by the members of the Free Market Foundation.

FMF Feature Article/15 May 2007