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By James Linscott

Controversial proposed amendments to the Films and Publications Act 65 of 1996 (FPA) have resulted in an outcry from media organisations and civil society institutions. While much of the debate surrounding the Films and Publications Amendment Bill has been focused on the proposed removal from the FPA of sections which currently exempt broadcasters and newspapers from the provisions of the FPA, the Bill in other ways significantly intensifies restrictions on the free flow of information.

The Bill significantly increases the scope of publications which are required to be submitted for classification. The existing FPA requires that persons intending to publish, distribute or exhibit publications which contain sexually graphic and violent scenes, descriptions and depictions must submit such publications to the Film and Publication Board. In terms of the FPA, all films must be submitted to the Board for classification.

The Bill greatly extends the nature and scope of the publications that must be submitted for classification by requiring that any film or publication containing any visual presentations, depictions or representations amounting to sexual conduct, propaganda for war, incitement to imminent violence or the advocacy of hatred based on any identifiable group characteristic must submit such publication for classification by the classification office (a new body envisaged by the Bill) before such publication may be distributed or exhibited.

The Bill does not draw any distinction between graphic and subtle depictions or descriptions of sexual conduct. Accordingly, on the face of it, even the mildest erotica or a pamphlet on sexual health would be required to be submitted for classification. If enforced rigorously, it is possible that this provision could stifle debate on important public health issues such as HIV/Aids. This provision is also likely to impede efforts by civil society institutions to address and ameliorate the prevailing high levels of sexual violence against women and children in South Africa.

In addition, what constitutes propaganda for war or incitement to imminent violence is inherently subjective and could be manipulated for political ends. For example, a publication disseminated by a trade union calling for workers to engage in mass action could possibly be construed as incitement to imminent violence. The extension of the number and range of films and publications that will be required to be submitted for classification could lead to self-censorship and have a chilling effect on the important socio-political debates that should be central to any functional democracy.

The Bill also significantly alters the classification categories and classification criteria applicable to films and publications. Under the FPA, films and publications can be classified as XX, X18 or have an age restriction applied to them. The Board may also impose conditions pertaining to the distribution and exhibition of films and publications, such as a requirement that a film or publication may only be distributed in a sealed, opaque wrapper containing a warning that the publication is not suitable for persons below a certain age.

In terms of the FPA, the exhibition and distribution of XX publications is illegal, while the distribution and exhibition of X18 publications is regulated. In general, X18 publications may only be distributed from or exhibited in licensed adult retail outlets. However, the Bill will establish a further classification category – "refused classifications". Like XX films and publications, the distribution and exhibition of refused classifications will be banned altogether. The Bill will thus result in a larger number of films and publications being banned outright.

The classification criteria set out in the Bill are far more broadly framed than those in the FPA, which are more concrete and specific. For example, under the FPA visual depictions or descriptions of explicit violent sexual conduct or bestiality, rape or incest will result in a film or publication being classified XX. However, in terms of the Bill, films and publications which contain descriptions or depictions of "explicit sexual conduct which violates or shows disrespect for the right to human dignity of any person", "conduct or an act which is degrading of human beings" and "conduct or an act which constitutes incitement to or encourages or promotes harmful sexual behaviour" will result in an XX rating.

The broadness of the classification criteria set out in the Bill, together with the fact that they are based on subjective and moralistic notions of what constitutes "harmful sexual behaviour" and "conduct which is degrading of human beings", will arguably result in a great many sexually explicit films and publications which would previously have been classified as X18 being classified as XX. The breadth and inherently subjective nature of the classification concepts set out in the Bill are also likely to result in the further stigmatisation of minority sexualities and minority sexual practices.

The proposed amendments to the FPA are being carried out purportedly to protect children from sexual exploitation. However, even if the exemption of broadcasters and the press from the provisions of the FPA is ultimately retained in the amended version of the FPA, the proposed amendments are likely to erode freedom of expression in South Africa by causing an unreasonably high number of films and publications to be banned from distribution altogether