NATIONAL ASSOCIATION OF BROADCASTERS

1. NATIONAL ASSOCIATION OF BROADCASTERS FILM AND PUBLICATIONS AMENDMENT BILL - PRESENTATION TO THE PORTFOLIO COMMITTEE ON HOME AFFAIRS 3 MAY 2007

2. 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

3. Introduction Regulatory Environment Constitutional Concerns Issues relating to subscription broadcasting Conclusion Questions OUTLINE OF PRESENTATION 3

4. INTRODUCTION 4

5. 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

6. 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

7. REGULATORY ENVIRONMENT 7

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. CONSTITUTIONAL CONCERNS 14

15. 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

16. 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

17. CLAUSE 22(C) – SUBJECTING BROADCASTERS TO THE JURISDICTION OF THE FPB IS UNCONSTITUTIONAL 17

18. 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

19. 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

20. 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

21. 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

22. CLAUSE 16 – THE PROVISIONS RELATING TO CLASSIFICATION OF FILMS ARE UNCONSTITUTIONAL 22

23. 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

24. 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

25. 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

26. 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

27. 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

28. 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

29. 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

30. 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

31. BILL’S RESTRICTIONS DO NOT ACCORD WITH CONSTITUTION’S RESTRICTIONS 31

32. 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

33. 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

34. CLAUSE 24 – THE PROVISIONS DEALING WITH THE CRIMINAL OFFENCES ARE UNCONSTITUTIONAL 34

35. 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

36. 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

37. 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

38. 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

39. 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

40. 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

41. 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

42. SPECIFIC ISSUES RELATING TO SUBSCRIPTION BROADCASTERS 42

43. 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

44. 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

45. 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

46. 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

47. 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

48. 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

49. 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

50. 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