Journalists and others engaged in the vital function of communicating with the broader public should sit up and take careful note of the provisions of the Films and Publications Amendment Bill (FPA Bill). In recent times there has been an alarming proliferation of bills that have, as their goal, the restriction of free speech and the right to convey to the public information which is essential to the proper evaluation of the role and effi cacy of the executive of the country.
The latest offering, suitably sugar-coated and oblique, is the FPA Bill – hot on the heels of the appalling Protection of Information Bill (“The devil in the detail”, The Media, August 2008). The FPA Bill is yet another arrogant piece of legislation designed to raise the hackles of any creative person; its real objective neatly obscured by the knee-jerk homage to children’s rights.
It is a viperous assemblage of executive authoritarianism. The Publications Act of 1974 (1974 Act), which was replaced by the Films and Publications Act of 1996 (1996 Act), was based on wide-ranging banning of materials that were considered indecent, obscene and offensive to public morals. The 1974 Act was rejected as being archaic and not in keeping with our Constitution.
The purpose of the original 1996 Act was to regulate the distribution of certain publications and the exhibition of certain films, in the main by means of classification, the imposition of age restrictions and the provision of consumer advice. This objective recognised that the function of the Film and Publication Board was to set distribution standards for films and publications and not to tamper with the creation and possession of material. To do so would lead to the criminalisation of creativity.
In terms of the 1996 Act, a system of censorship was replaced by a system of classification, with only the narrowest range of materials being restricted for distribution. The prevention of harm was the basis upon which decisions would be made and not the protection of morality. This removed the element of subjectivity from the regulation of films and publications and went a long way towards stamping out arbitrary and politically loaded judgments about what morality, indecency and offensiveness meant.
Onwards and backwards
The Films and Publications Amendment Act of 1999 initiated a regression in the upholding of our constitutional right to free speech by its regulation of the creation and possession of material. The Bill now attempts to reintroduce the morality test for films and publications control, which is fundamentally unconstitutional.
Centre stage in this concoction of abuse of individual and corporate rights is a minister, endowed with omniscience and untrammelled rights to peer into private lives. One is of course expected to make allowances for this dazzling display of ministerial might which oozes from every subsection of the Bill and to respond with a salutary cheer on behalf of the many thousands of people who will be spared the offensiveness of the Venus de Milo, and other “disgusting” creations.
No matter. Our modern thought police have conspired to make the creation of your very own self-filmed, self-viewed, self-enjoyed enterprise the subject of their intrusive activities.
In a recent article, I lamented the constitutional violations of the Protection of Information Bill. Sadly, the current offering of the Legislature is nothing more than the extension of the trite and invasive mutterings of an anti-democratic administration. I am of course hopeful that, with the recent change in leadership of our country, a more thoughtful and freedom-loving genre of holders of office of high standing might present themselves.
A cursory examination of the FPA Bill will show that it was designed to place an extraordinary degree of power in the hands of the designated minister. All appointments to the serried ranks of those deemed bright enough to tell the rest of us what we may read, see, hear or do, has been placed in the mitts of the said minister and/or the minister in consultation with the Cabinet, and/or those appointed by the said minister.
Once more we are confronted with a piece of legislation, the sole purpose of which is to prevent individuals from enforcing their constitutional rights while the ostensible purpose is to prevent the ills of child pornography et al. The drafters of the Bill would have been better off confi ning themselves to specific offences and not descending to verbiage which simply clouds the legal landscape. This is simply a farrago of unrestricted waffl e which is truly nothing more than an abject exercise to create sinecures for party hacks.
The Bill centralises power in the hands of the minister, and allows the prohibition of the creation of certain ideas and attempts to justify all of this in the public interest. The interesting thing is that the public has no interest.
The minister is not obliged to request public nominations to the council, established by the Bill, nor is the minister obliged to convene an advisory panel. That is left to the minister’s discretion. In the event of deadlocks in respect of voting, these are resolved by the appointing of someone who is appointed by someone who is appointed by the minister.
Guilty until proven innocent
In terms of the Bill, creators and publishers are obliged to submit material to the Film and Publication Board for exemption or classification if it falls foul of the offending classifications provided for in the Bill. Material will fall foul of the Act if it contains, inter alia, presentations or even descriptions of sexual conduct and violence. This will introduce a culture of self-censorship, to the detriment of artistic freedom.
The attempt to grant exemptions based on criteria set out in the Bill pays nothing more than lip service to artistic integrity and freedom of expression. In any event, it is a fundamental violation of the legal precept of innocent until proven guilty.
What is even more ludicrous, are the provisions in the Bill which will make the non-disclosure of knowledge and mere suspicion of an offence in terms of the Act, an offence.
Journalists will be forced to reveal their confidential sources of information related to the commission of an offence. This will severely diminish the media’s ability to gather information and would in turn deter sources from confiding in journalists for fear of being exposed. It will create the perception that the media is an investigative tool of litigants instead of a neutral entity.
For serious people, this Bill represents nothing more than an attempt to bulldoze uninformed opinion, at the expense of a diversified vital and vibrant artistic society. Dealing firmly with violations of others’ rights is a constitutional obligation, but equally the defence of hard-won freedom of expression is quintessential to the survival and development of our fledgling democracy, and is equally vital to the development of legal constitutionality.
It is for these reasons that one should be concerned about the unfettered powers that are being granted to the minister and that have automatically, as a result of the minister’s political affiliation, a direct political overtone and are likely to lead to abuse by virtue of the majoritarian position in Parliament. Ultimately the public interest should be the determining factor and the absence of public participation in the selection, appointment and removal of persons who will be authorised to decide what you and I may read, see, hear or do constitutes a grave infringement of our individual rights. I fail also to see how any board member who is not accountable to the pubic at large, but solely accountable to the minister, can ever conduct him or herself in a fashion that is fair, just and equitable. This in itself raises serious questions about the integrity of the process and the decisions made by the Board.
In the immortal words of Lord Acton: “Power tends to corrupt and absolute power corrupts absolutely.”
Melissa Moore is the head of the Freedom of Expression Institute (FXI) Law Clinic.
- This article first appeared in The Media magazine (November 2008).