Ordinary citizens ignored again in magazines constitutional court case

Public must now go to extraordinary lengths to act against sexually explicit magazines

By Africa Christian Action Network

Ordinary citizens have been put ‘on the back foot’ yet again in the recent Constitutional Court Ruling (28 September) on Section 16 of the Film and Publications Act dealing with sexually explicit magazines (Print Media South Africa and Another v Minister of Home Affairs), believes Taryn Hodgson, International Co-ordinator of the Christian Action Network.

“This ruling follows the e-toll ruling in which the man and woman in the street has to foot the bill. This ruling means that ordinary citizens will have to go to extraordinary lengths to take action against sexually explicit magazines.”

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Before the ruling, if a magazine contained ‘sexual conduct’ as defined by the Act, it was required to be submitted to the Film and Publications Board for classification prior to publication. The Constitutional Court has now severed that portion of the Act (Section 16(1) and (2)).

“This means that a magazine could get away with publishing, without any classifications, extremely degrading and exploitative sexually explicit material, even condoning rape,  (including X18 material which should be restricted to adult shops and XX which may be possessed but not sold), and could sell it at a local supermarket. It would not be required to be classified until a member of the public complains. By then the damage (especially to children) has been done. Will the public now need to ask for every single edition of sexually explicit magazines to be classified?

“Unless the Film and Publications Board classifiers are required to classify within a few days, the magazine’s next monthly edition could already be published before the classification is even made – making the classification process meaningless.

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“There are numerous rights protected by classification, apart from the stereotypical person with religious convictions wanting to be warned about content. Some include negative gender stereotyping, misogyny, sexism, hate speech against women and the physical abuse of women.

“Pornography often depicts women in degrading, humiliating ways and as sex objects – existing only for men’s sexual pleasure. Women are also often called derogatory names and subject to violent acts.

“Complaints against magazines and newspapers subject to the Press Code need to be made to the Press Ombudsman – a biased body, paid by the media they represent, with no legal teeth. Most magazines that publish sexually explicit material are not subject to this code anyway.

“It appears that the Constitutional Court judges have ignored the public interest in favour of publishers. The CC judges only mentioned in passing that children’s rights are paramount and have failed to justify how their ruling upholds these rights. Pre-publication classification did not amount to censorship but was a way to ensure that the constitutional protections for children were complied with.

“The limitations to freedom of speech (Section 36 of the Constitution) – especially with regards to human dignity and equality – have largely been ignored. The judges appear to have confused political speech with material produced for prurient, sensational appeal – which is what the pre-submittable clause was aimed at. We don’t want control on news, what is at issue here is sexual material, especially sexual visuals that are utterly gratuitous.

“It is disappointing that no X18 and XX material was submitted as evidence by the Film and Publications Board advocates, or debated by the judges in this case. It is doubtful therefore, that the judges had any real sense of the kind of material that Section 16 of the FP Act was aimed at.

“The ruling mentions that an interdict can be obtained via the courts against an offending publication. What mother from Khayelitsha, Plumstead or Bellville has the know-how to apply for a court interdict? The average person is already daunted by the process of lodging a complaint against inappropriate material. An interdict is reactive not preventative. The judges failed to consider the immense harm of sexually explicit material to children and how an interdict would protect them from such harm.

“No mention was made of how other countries such as Australia deal with magazines or International Protocols (such as African Charter on Human Rights and Peoples’ Rights on the Rights of Women in ratified in 2005)  that SA is signatory to. Australia operates a system of pre-distribution classification and is a recognised well-functioning democracy. This was spelled out in the arguments put forward by one of the amicus curiae (friend of the court).

“The African Charter not only gives recognition to a woman’s right to dignity but also obliges state parties to adopt and implement measures to ensure the protection of every woman’s right to respect for dignity. Article 12(b) says ‘State parties must eliminate all stereotypes in… the media that perpetuate such discrimination.’ Article 13(m) says ‘States Parties shall take effective legislative and administrative measures to prevent the exploitation and abuse of women in advertising and pornography.’

“The judges’ decision is also inconsistent with Section 19 of the Sexual Offences Act 2007 which criminalises the display of pornography – as defined by the Act – to children. The definition, though broader, is roughly consistent with the definition of ‘sexual conduct’ in the Film and Publications Act and broadly amounts to X18 material. So, although it is illegal to show pornography(X18) to children, it is now not necessary to submit said material for classification to the Board. If the same visual material appears in a film, it has to be submitted for classification.

“We agree with Van Der Westhuizen’s separate judgement that many parts of the Film and Publications Act are vague and confusing – but this is why the Act needed to be sent back to Parliament to be clarified.

“Ordinary citizens will now need to be extra vigilant and pro-active. If members of the public need help or advice to make a complaint about a magazine, they can contact the Christian Action Network,” says Hodgson.

Contact: Christian Action Network International Co-ordinator, Taryn Hodgson: (021) 689 4480 or 072 215 4801 or E-mail: info@christianaction.org.za.