Classification of sexually explicit magazine content considered in Constitutional Court

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The handling of sexually explicit magazine content was in the spotlight in the Constitutional Court this week. Editors and publishers fought for greater self regulation.The State fought for the right to protect children by preventing the unrestricted publication of degrading pornography.
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The constitutional validity of sections of the Film and Publications Act that deal with pre-publication classification  of  certain sexual content in magazines, was argued in the Constitutional Court in Johannesburg this week.

The hearing on Tuesday, March 13, followed  a declaration by the South Gauteng High Court, on October 26, that amendments to sections 16(1), (2) and 24(2)(a) of the Film and Publications Act are inconsistent with the Constitution. The Department of Home Affairs and Film Publications Board (FPB) opposed the High Court declaration, while counsel for Print Media SA (PPMSA) and the SA National Editors Forum (SANEF) argued for the declaration to be confirmed.

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Pre-publication Classification
The contested provisions, introduced in 2010, require that magazines – excluding newspapers — are submitted to the FPB before publication if they contain sexual conduct that: violates or disrespects the right to human dignity, degrades a person, contains hate speech, advocates propaganda for war or incites violence.

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Home Affairs and the FPB argued that the pre-publication classification requirement is justifiable as it aims to educate consumers, protect children and eliminate child pornography.

PMSA and SANEF argued that pre-publication classification could hinder the free flow of information and possibly prevent the publication of articles or images that were in the public interest. They said that magazines adhering to the Press Code should be exempted from pre-publication classification, as newspapers currently were. They would be self-regulated and would thus not need to be classified.

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The Justice Alliance of South Africa (JASA), appearing as a Friend of the Court on behalf of Home Affairs and FPB, advanced a number of new points for consideration.

Reactive and Not Proactive
JASA said that if a magazine published offensive content the Press Ombudsman would only react to complaints from the public after the damage had already been done. Also, the Press Code was altered last year by the Press Council, watering down some of its provisions.

JASA argued that if the High Court ruling was upheld, the elimination of the sub-section of the Act dealing with the ‘submittability’ and not the sub-section on ‘classifiability’ of magazines, would create a nonsensical situation whereby a magazine could be classifiable but not submittable. This would effectively remove the requirement to classify any magazines with sexual conduct.

Preventing Delays
JASA further argued that delays caused by pre-publication classification could be reduced by reading in certain wording, with the effect that “only the material containing sexual conduct” (not the whole publication) need be submitted and that this could be sent electronically to the FPB. Furthermore a time limit could be written into the Statute to ensure that the Bord made its decision promptly so that publication of the magazine would not be delayed.

Awaiting judges’ ruling
The 11 Constitutional Court judges now need to issue a ruling by majority consensus. This could take around six months.

The Heads of Argument submitted by the Applicants, Respondents and by JASA can be read on the Constitutional Court website.

Taryn Hodgson, International Co-ordinator of the Christian Action Network (CAN), who attended this week’s hearing said CAN did not believe that the disputed provisions in the Act would amount to censorship.

“The purpose of this provision is to classify sexually explicit content that is gratuitous or prurient and that could be harmful to children. It is very rare that material containing sexual conduct would be in the public interest, and even if it is in the public interest, it could still be harmful to children, not to mention degrading or stereotyping women as sex objects. We must remember that children’s rights are of paramount importance in every matter that concerns children according to the SA Constitution. According to the Act, material with sexual conduct that is of artistic, literary or scientific merit can be given a lower classification.”

She said that if the High Court declaration invalidation the contested clauses was upheld, sexually explicit magazines that were currently restricted to sex shops could be sold in supermarkets.

“It is difficult to predict how the judges will rule. The best case scenario is if the Film and Publications Act is sent back to Parliament to ensure magazines with sexually explicit content are classified appropriately and to iron out any inconsistencies. This would give the public further opportunities to make submissions to Parliament,” Hodgson said.