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NATIONAL ASSOCIATION OF BROADCASTERS FILM AND PUBLICATIONS AMENDMENT BILL - PRESENTATION TO THE PORTFOLIO COMMITTEE ON HOME AFFAIRS 3 MAY 2007 NOLO LETELE CEO, MULTICHOICE JOHANN KOSTER Exec Director, NAB BRONWYN KEENE YOUNG Channel Dir, e-tv FAKIR HASSEN Policy and Reg, SABC

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national association of broadcasters

NATIONAL ASSOCIATION OF BROADCASTERS

FILM AND PUBLICATIONS AMENDMENT BILL -

PRESENTATION TO THE PORTFOLIO COMMITTEE ON HOME AFFAIRS

3 MAY 2007

nab 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

NAB DELEGATION

2

outline of presentation
Introduction

Regulatory Environment

Constitutional Concerns

Issues relating to subscription broadcasting

Conclusion

Questions

OUTLINE OF PRESENTATION

3

slide5
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

INTRODUCTION

5

introduction6
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

6

slide8
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

8

regulatory environment9
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

REGULATORY ENVIRONMENT

9

regulatory environment10
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 harm

REGULATORY ENVIRONMENT

10

regulatory environment11
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

REGULATORY ENVIRONMENT

11

regulatory environment12
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

REGULATORY ENVIRONMENT

12

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

CONCLUSION ON THE STATUS QUO

13

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

THREE ASPECTS OF THE BILL ARE UNCONSTITUTIONAL

15

negative 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

NEGATIVE EFFECTS ON BILL’S LEGITIMATE AIMS

16

the 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

THE PROBLEM

18

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

ENCROACHMENT ON ICASA

19

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

FPB IS NOT “INDEPENDENT”.

20

conclusion 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

CONCLUSION – CLAUSE 22(C)

21

the problem23
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

THE PROBLEM

23

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

THIS IS IMPRACTICAL

24

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

THIS WILL PREVENT PROPER NEWS COVERAGE

27

this 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

THIS WILL PREVENT ALL LIVE COVERAGE

28

this 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

THIS IS UNPRECEDENTED

25

this 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

THIS IS UNCONSTITUTIONAL

26

proposed 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

PROPOSED CLASSIFCATION CRITERIA

29

overbroad 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

OVERBROAD EFFECT: PROGRAMMES BANNED

30

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

PROVISIONS ARE UNCONSTITUTIONALLY VAGUE

32

conclusion 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

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

CONCLUSION – CLAUSE 16

33

the 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

THE PROBLEMS

35

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

EXAMPLE 1 – BROADCASTING NON-CLASSIFIED FILM

36

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.

EXAMPLE 2 – FILMS CONTAINING SEXUAL CONDUCT

37

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.

EXAMPLE 3 –FILMS DEPICTING ABUSE OF CHILDREN

38

conclusion clause 24
The clause is unconstitutional:

Violates freedom of expression in a series of respects

Overbroad

Irrational

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

CONCLUSION – CLAUSE 24

39

conclusion
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

CONCLUSION

40

way 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

WAY FORWARD?

41

introduction43
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

INTRODUCTION

43

proposed subscription code
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

44

proposed subscription code45
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”

PROPOSED SUBSCRIPTION CODE

45

proposed subscription code46
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

PROPOSED SUBSCRIPTION CODE

46

proposed subscription code47
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”)

PROPOSED SUBSCRIPTION CODE

47

proposed subscription code48
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

PROPOSED SUBSCRIPTION CODE

48

packaging 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

PACKAGING OF CHANNELS AND BOUQUETS

49

multichoice
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

MULTICHOICE

50

compliance 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

COMPLIANCE IMPOSSIBLE

51

compliance impossible52
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

COMPLIANCE IMPOSSIBLE

52

offences
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

OFFENCES

53

offences54
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

OFFENCES

54

exemption 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

EXEMPTION FROM PROSECUTION

55

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

SELF REGULATION

56

conclusion58
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

CONCLUSION

58

conclusion59
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

59