So…let’s talk about the FPB…Again.
People are rightly up in arms with the FPB changing the classification of #InxebaTheWound from a 16 rating to X18. X18 is usually reserved for hardcore pornography, as it amounts to an effective ban on the film, since it can now only be legally distributed through licenced adult entertainment stores (which they are unlikely to do). A lot of people are starting to question whether the FPB’s mandate or system of operation is even constitutional. The thing is, it probably is, and our Constitutional Court has even ruled as much.
I’ve previously talked about the FPB and specifically the recent Films and Publications Amendment Bill and what it means for content published on the internet. But I’d like to go back to 2016 when the bill first became open for public comment. On behalf of @IESAorg I submitted a response, the crux of which was that based on the constitutional court’s ruling in Print Media South Africa and Another v Minister of Home Affairs and Another 2012 (12) BCLR 1346 (CC), that the entire Act needed to be redrafted since the core mechanism of how classification happens is unconstitutional.
So what was the Print Media Case all about?
Many assume that the Films and Publications boards’ mandate is to classify films and games, but what you may not know is that the FPB is a rebranding of the old Apartheid Governments Censorship board, and the FPB inherited a lot of its powers. In terms of s16 of the FPB Act the FPB has the authority to classify any “other publication” which includes (among other things) artworks, statutes, poetry, and even books. One of these other things was newspapers and magazines. Print Media South Africa rightly contested these powers (specifically that a government entity could prevent news media being published, and more so that publishers had a responsibility to submit works for classification prior to publishing it). In this case the court spent a great deal of time examining how the FPB’s classification system works. Ultimately they found that the Act’s “administrative prior classification” system was unconstitutional, some choice excerpts from the case are:
At para 45 “In my view the respondents have failed to demonstrate that the Act’s administrative prior classification system is constitutionally defensible”
At para 51 “Because freedom of expression, unlike some other right, does not require regulation to give effect, regulating the right amounts to limiting it. The upper limit of regulation may be set at an absolute ban, which extinguishes the right totally. Regulation to a lesser degree constitutes infringement to a smaller extent, but infringement nonetheless.”
“As I see it, the free flow of constitutionally protected expression is the rule and administrative prior classification should be the exception.”
At para 63 “On analysis of the statutory scheme, there is little doubt that section 16(2)(a) is not the exclusive means through which the Act’s purposes and its own purposes may be achieved. In fact, prohibiting the publication and creation of child pornography and the exposure of children to pornography are already governed by two other sections of the Act, which are altogether independent of the classification system. Consequently section 16(2)(a) is not necessary to achieve the Act’s purpose insofar as they pertain to children”
At para 72 “In my view, the central constitutional deficiency lies in the administrative and compulsory nature of the Act’s prior classification scheme, in circumstances where there are less restrictive alternatives for achieving important legislative purposes”
At para 73 “As the applicants correctly pointed out, the lamentable reality is that sexual offences, besting our communities, are perpetrated with alarming frequency and cruelty. The need for redress is immediate and crucial. It is, however, difficult to conceive of how section 16(2)(a) might contribute to solving this problem.”
Print Media South Africa won their case and the court ordered that the FPB Act be amended so that it no longer applied to print media, and that the system of administrative prior classification should not apply to “other publications”. However because the sections relating to the classification of games and films was never raised, these sections, and the administrative prior classification of these media was never dealt with.
It is my contention that the courts logic would apply equally to administrative prior classification of films and games as I truly don’t believe that they are so different to other forms of media that they should be the exception.
This formed the basis of our submission to Parliaments Communications Sub-Committee who was tasked with dealing with the amendments to the Act.
The FPB was asked to respond or justify their amendments to the act given the submission made. Their full response can be seen here.
How did they respond to our submission? And specifically that we were concerned with the constitutionality of the classification system in its entirety?
Unfortunately, due to how the parliamentary process works we were never given the opportunity to respond to these statements. But let’s have a look at them in turn:
The FPB claims that the De Reuck case shows that the Constitutional Court has already ruled that the prior classification of films and games IS constitutional. Except… De Reuck never deals with this. At all. What De Reuck does say is that child pornography is not protected by the constitutional right to freedom of speech. The words “administrative prior classification” is never mentioned in the case, and the arguments raised where never around the constitutionality of this system, this case was solely about whether one could claim that the right to freedom of expression protects the creation and distribution of child pornography. You can read the full De Reuck judgement here.
The claim that our reading of the case is selective, or misleading is never expanded on. We state in the submission that we recognise that the Print Media case was only asked to deal with s16, and specifically as it relates to news media. We did raise that given the statements of the court should the constitutionality of the remaining sections re: classification not be considered and changed. Though this statement by the court seems pretty unequivocal:
“In my view the respondents have failed to demonstrate that the Act’s administrative prior classification system is constitutionally defensible”
The notion that the games industry could be trusted to do self-classification is, in fact, not absurd. The two largest games classification systems currently used in the world (PEGI and ESRB) are run by industry bodies, and they seem to function very well. The FPB has even been given the opportunity to join IARC (the International Age Ratings Coalition) which would ensure that nearly all games made available online would have their ratings system applied to it. The FPB has refused to join, primarily on the basis (as it appears from my discussions with IARC) that they would be unable to charge the platforms who use IARC a fee to have their content classified (which is a requirement to join the system). As a side note, it is very interesting to see how these fees are determined and what is motivating them. One would think that the opportunity to have classification done to their standard applied in a worldwide system would be welcomed.
The FPB usually responds to calls to adopt international systems or at least recognise them with an argument that international classification system are not “ in line with South Africa’s societal values and norms”. I’d like to finish reflecting on this. The #InxebaTheWound debacle perhaps highlights this best, the FPB shouldn’t be classifying content that is in line with what our social morals are, but rather what they should be. Hopefully the media storm that this will create will bring the FPB and its classification system back in the spotlight and we can discard this relic of an old regime that has no place in our constitutional democracy.