CASE NO: CCT 113/2011
In the matter between:
PRINT MEDIA SOUTH AFRICA First Applicant
SOUTH AFRICAN NATIONAL EDITORS FORUM Second Applicant
and
MINISTER OF HOME AFFAIRS First Respondent FILM AND PUBLICATIONS BOARD Second Respondent
and
JUSTICE ALLIANCE OF SOUTH AFRICA First Amicus Curiae
SECTION 16 Second Amicus Curiae
__________________________________________________________________
APPLICANTS’ WRITTEN ARGUMENT IN RESPONSE TO THE JUSTICE ALLIANCE OF SOUTH AFRICA
__________________________________________________________________
TABLE OF CONTENTS
INTRODUCTION ... ERROR! BOOKMARK NOT DEFINED.3
THE CONSTITUTIONALITY OF SECTION 16(2)(A) OF THE ACT ... 5
The relationship between sections 16(2) and 16(4) of the Act ... 6
JASA’s section 36 analysis ... 10
THE REMEDY IN RELATION TO SECTION 16(2)(A) OF THE ACT ... 21
The appropriateness of the High Court remedy ... 21
JASA’s proposed alternative remedies ... 23
JASA’s reading-in remedy ... 24
Suspension ... 27
THE EXCLUSION OF MAGAZINES ... 29
The necessity of both sets of relief ... 29
The adequacy of self-regulation under the Press Code ... 31
CONCLUSION ... 37
INTRODUCTION
1 These supplementary written submissions are filed in response to the contentions raised by the first amicus curiae, the Justice Alliance of South Africa (“JASA”). JASA was admitted as an amicus curiae by this Court on 20 February 2012, and did not partake in the High Court proceedings.
2 It appears that JASA opposes the confirmation of two findings of constitutional invalidity made by Mathopo J in the South Gauteng High Court in respect of the Film and Publications Act 65 of 1996 (“the Act”), namely:
2.1 The finding that the requirement of compulsory, pre-publication classification under section 16(2)(a) of the Act is an overbroad and unjustifiable limitation on the right to freedom of expression (paragraph 1 of the High Court order);1 and
2.2 The finding that the exclusion of bona fide and self-regulated magazines from the protection afforded to similar newspapers under sections 16(1), 16(2) and 24A(2)(a) of the Act is inconsistent with the Constitution (paragraph 2 of the High Court order).
1 The order of the High Court appears at vol.5, pp. 476-478 of the Record.
3 In the alternative, and in the event that this Court confirms the declarations of invalidity made by the High Court, JASA contends that the remedies adopted by the High Court were inappropriate.
4 JASA does not oppose confirmation of the declaration of invalidity made in respect of section 24A(2)(a) of the Act. Accordingly, we do not address this provision in these submissions.
5 We address JASA’s arguments in the following order:
5.1 The constitutionality of section 16(2)(a) of the Act;
5.2 The remedy in relation to section 16(2)(a) of the Act; and
5.3 The exclusion of magazines.
THE CONSTITUTIONALITY OF SECTION 16(2)(a) OF THE ACT
6 JASA challenges the finding that section 16(2)(a) of the Act is an overbroad and unjustifiable limitation on the right to freedom of expression. JASA accepts that the requirement of mandatory pre-publication classification infringes the right to freedom of expression, but submits that such infringement is justifiable under section 36 of the Constitution.
7 At the core of JASA’s contentions is an assertion that there is a “very close correlation” between the materials which fall to be submitted for classification in terms of section 16(2), including section 16(2)(a), and the materials which fall to be given to “refused classification” or “XX” classification in terms of section 16(4) of the Act. JASA therefore submits that where a publication has to be submitted under section 16(2), there is a “strong probability” that it has to be classified as “refused classification” or “XX”. 2
8 We demonstrate below that this contention is patently incorrect.
9 Moreover, we demonstrate that the same flawed contention underlies JASA’s limitations analysis. This includes, for example, JASA’s contention that where publications have to be submitted under section 16(2)(a), the expression they contain “will not lie at the core of the right [to freedom of expression] and will not be essential to the functioning of a democracy”.3 JASA suggests, quite
2 JASA’s written submissions, paras 21 - 22.
3 JASA’s written submissions, para 36.
remarkably, that this applies even to the publications annexed to the founding papers.
The relationship between sections 16(2) and 16(4) of the Act
10 Section 16(2) of the Act deals with which publications are required to be submitted for pre-publication classification. Section 16(4) of the Act deals with how publications are to be classified.
11 The Applicants readily accept that there should be a close correlation between the two provisions. This is precisely in order to prevent the situation at issue – where publications which almost certainly would not receive classifications under section 16(4) are nevertheless required to be submitted for pre- publication classification in terms of section 16(2), with all the negative consequences involved.
12 However, it is not correct that there is in fact a “very close correlation” between the publications covered by section 16(2)(a) and the publications that must receive classifications in terms of section 16(4). Rather, the scope of section 16(2)(a) significantly exceeds that of sections 16(4)(b)(i) and (ii). This is so in two main respects.
13 First, the provisions do not apply to the same publications:
13.1 Section 16(2)(a) provides that a submitable publication is any publication that:
“contains sexual conduct which –
(i) violates or shows disrespect for the right to human dignity of any person;
(ii) degrades a person; or
(iii) constitutes incitement to cause harm.”
13.2 By contrast, sections 16(4)(b)(i) and (ii) provide as follows:
“The classification committee shall, in the prescribed manner, examine a publication referred to it and shall ... classify the publication as ‘XX’ if it contains –
(i) explicit sexual conduct which violates or shows disrespect for the right to beings;
(ii) bestiality, incest, rape or conduct or an act which is degrading of human beings”.
13.3 The most obvious difference then is that section 16(2)(a) applies to any publication that contains “sexual conduct”, while section 16(4)(b)(i) defines as classifiable as ‘XX’ only those publications that contain
“explicit sexual conduct”. This distinction is of considerable importance because “explicit sexual conduct’ is defined in section 1 of the Act as
“graphic and detailed visual presentations or descriptions of any conduct contemplated in the definition of ‘sexual conduct’ in this Act”. It is far narrower and more specific than the term “sexual conduct” used in section 16(2).
14 Second, and even more critically, the classification categories under section 16(4)(b) are all subject to the following qualification:
“unless, judged with context, the publication is, except with respect to child pornography, a bona fide documentary or is a publication of scientific, literary or artistic merit or is on a matter of public interest in which event the publication shall be classified ‘X18’ or classified with reference to the guidelines relating to the protection of children from exposure to disturbing, harmful or age-inappropriate materials.”
(emphasis added.)
14.1 The qualification in section 16(4)(b) must be read with the Guidelines,4 which contain the following clause:
“4.5 ‘NO CLASSIFICATION NECESSARY’
If the overall impact of a publication is not potentially disturbing, harmful or inappropriate for children, the publication will not be subject to any restrictions and no classification will, therefore, be necessary.” (Emphasis added.)
14.2 The import of the qualification in section 16(4), read with clause 4.5 of the Guidelines, is that where a publication contains even the explicit sexual conduct of the kind contemplated in section 16(4), it will not receive any restriction or classification if it is a “publication of scientific, literary or artistic merit or is on a matter of public interest” and if its overall impact is not disturbing, harmful or inappropriate for children.
14.3 This is starkly different from the effect of section 16(2)(a) of the Act. It requires that a publication be submitted for pre-publication classification even if:
14.3.1 it only contains the relevant sexual conduct (as opposed to explicit sexual conduct); and
4 Guidelines to be Used in the Classification of Films, Interactive Computer Games and Certain Publications, published under GN 887 in GG 32542 of 1 September 2009.
14.3.2 it is a publication of scientific, literary or artistic merit or is on a matter of public interest; and
14.3.3 its overall impact is not disturbing, harmful or inappropriate for children.
14.4 Thus, section 16(4) of the Act read with the Guidelines, properly distinguishes between publications in need of classification (for example violent, hard-core pornography) and publications not in need of such classification (for example the items attached to the founding affidavit as Annexures 8-22 and 24-30).5
14.5 Yet, section 16(2)(a) of the Act draws no such distinction and requires that all of the above publications be submitted for pre-publication classification under section 16(2)(a). This is what gives rise to the present constitutional difficulty.
15 JASA’s contention that all of the publications attached to the Applicants’
founding affidavit are publications that ought presumptively to be classified as
‘XX’ is therefore plainly incorrect.
16 It is notable also that JASA’s view is directly at odds with the attitude of the Films and Publications Board, the Second Respondent. In their answering papers, both Respondents contend that, save for one article, none of the
5 Record, vol. 1 & 2, pp. 99-173; 177-290.
articles attached by the Applicants ought to be subject to pre-publication classification – let alone actual classification under section 16(4).6
JASA’s section 36 analysis
17 JASA’s limitations analysis is squarely based on its erroneous assertion that all section 16(2)(a) publications are prima facie ‘XX’ publications. As a result of this assumption, JASA wrongly presumes –
17.1 that the expression restricted under section 16(2)(a) “will not lie at the core of the right and will not be essential to the functioning of a democracy”,7 and thus that the nature and extent of the limitation is not severe;
17.2 that the limitation by section 16(2)(a) goes no further than serving the important purpose of restricting the publication of classifiable ‘XX’
publications;8 and
17.3 that there is no less restrictive means of achieving the purpose thus construed without creating a ‘statutory fissure’ between sections 16(2) and 16(4) that would result in the “unclassified publication of classifiable materials”.9
18 On this basis alone, JASA’s limitations analysis falls to be rejected.
6 First and Second Respondents’ answering affidavit, paras 27-46, Record, vol. 4, pp. 374-394.
7 JASA’s written submissions, para 36.
8 JASA’s written submissions, para 44.
9 JASA’s written submissions, para 68.
19 In paragraphs 21 to 52 of our main written submissions, we present an alternative section 36 analysis based on a proper appreciation of the scope of section 16(2)(a). We stand by those submissions, but do not repeat them here.
Instead, we emphasise the following further flaws in JASA’s section 36 analysis.
20 With regard to the nature and extent of the limitation of section 16(2)(a) on the constitutional right to freedom of expression, JASA argues that the limitation “is neither severe nor particularly intrusive”10 in that–
20.1 Section 16(2)(a) publications, including those of the kind attached by the Applicants to its founding application, are not the kind of ‘news’ whose value depreciates appreciably over time;11
20.2 Any difficulties the publishers may experience construing section 16(2)(a) will be ameliorated over time as a body of precedent is developed by the Classification Committee;12
20.3 Publishers and distributors can avoid the criminal sanctions imposed under section 24A(2)(a) (for publishing or distributing section 16(2)(a) submitable publications without prior classification) by abiding the decision of the Film and Publications Board (the Board) and paying an administrative penalty in terms of section 30(4) of the Act.13
10 JASA’s written submissions, para 37.
11 JASA’s written submissions, para 39.
12 JASA’s written submissions, para 40.
13 JASA’s written submissions, para 41.
20.4 The extent of the infringement is not analogous to that in the Islamic Unity case,14 since the requirement of pre-publication classification is not as severe a restriction as an outright prohibition.15
21 We address these submissions in turn.
21.1 First, many publications caught under section 16(2)(a) are indeed
‘newsworthy’ and dependant on speedy and unhindered publication. For instance, the reportage in magazines on cases and incidences of rape and sexual abuse (see Annexures 8, 9, 10, 11, 12, 16 and 17 to the founding affidavit)16 are crucial to alerting society at large to such dangers and social ills that ought to be addressed with the utmost urgency in any healthy society. Reportage is an essential means of creating public awareness, and of exerting public pressure on those responsible for, or capable of, addressing the problem. Such exposure is particularly important in matters of rape and sexual abuse, where victims are often reluctant to speak out. Far from being harmful, the reportage on such matters promotes public safety.
21.2 Second, the suggestion by JASA that the impact of section 16(2)(a) on publishers will be ameliorated as a body of precedent is developed by the Classification Committee misses the fundamental point: The primary difficulty lies not in the unpredictability of the Classification Committee’s application of the classification categories under section 16(4) (although
14 Islamic Unity Convention v Independent Broadcasting Authority and Others 2002 (4) SA 294 (CC).
15 JASA’s written submissions, para 42.
16 Annexure 8 appears in vol 1. of the Record at pp. 99 – 100. Annexures 9-12, 16 & 17 appear in vol.
2 of the Record at pp.101-102; 103-104; 105-106; 107-111; 120-121; and 122-128 respectively.
this may be cause for concern), but in the fact that section 16(2)(a) is overbroad in the first instance. Accordingly, the concern is that publishers will be obliged to submit all publications falling under section 16(2)(a) prior to publication, whether or not they are ultimately classified under section 16(4). This aside, administrative tribunals do not operate on a system of precedent.
21.3 Third, the fact that publishers and distributors who publish or distribute section 16(2)(a) publications without submitting them for prior classification can avoid the criminal sanctions imposed under section 24A(2)(a) by facing the administrative penalties imposed by the Board does little, we submit, to ameliorate the extent of the limitation of section 16(2)(a).
21.3.1 For one thing, the permissive wording of section 30(4) (“may”,
“where applicable”) seems to imply that the Board retains a discretion to impose a criminal sanction after conducting an enquiry under section 30(4).
21.3.2 For another, this Court has already held that the absence of criminal penalties does not avoid the chilling effect on legitimate expression and cannot save an overbroad restriction on freedom of expression.17
21.4 Fourth, we submit that this Court’s finding that the prohibition on certain broadcasting in the Islamic Unity case was unconstitutional is indeed
17 Islamic Unity Convention v Independent Broadcasting Authority and Others 2002 (4) SA 294 (CC) at para 48.
instructive for the present matter. In particular, we submit that the ultimate effect of the overbroad requirement of pre-publication classification under section 16(2)(a) may well be akin to that of an outright prohibition for many non-classifiable publications. The concern is not simply that non-classifiable publications will be banned or restricted by erroneous classification, but that the very requirement of pre- publication submission will encourage self-censorship on the part of publishers, and is likely to undermine the sustainability of certain publications, and magazines in particular. The effect is therefore not dissimilar to an outright prohibition.
22 On the next leg of the section 36 enquiry, the importance of the purpose of the limitation, we reiterate that:
22.1 The Applicants do not dispute the paramount importance of protecting children’s rights, the right to human dignity, and gender equality.
22.2 The Applicants also do not dispute that publications that fall properly to be classified as refused classification or XX under section 16(4) must be submitted for classification and classified accordingly.
22.3 Accordingly, there is no dispute that the circulation of, for example, hard- core violent pornography should be subjected to pre-publication classification and appropriate restrictions.
23 The problem therefore is not the importance of the purpose of the limitation, but rather the relationship between the limitation and its purpose and the question of a less restrictive means.
23.1 JASA contends that the threshold for classification ought to be very low, to ensure that even ‘inoffensive’ and ‘extremely moderate’ publications containing certain sexual conduct are submitted for classification.
23.2 We submit that this approach can never be reasonable and justifiable having regard to the deleterious effects for freedom of expression and the availability of a less restrictive means.
23.3 In this regard, JASA has failed to demonstrate that section 16(2)(a) could not be more tightly drawn, as the Applicants have suggested. Its attempt to suggest that this creates “a statutory fissure” between sections 16(2) and 16(4) is not viable given that, as we have demonstrated, section 16(4) is far narrower than the existing section 16(2)(a).
23.4 In particular, it cannot be said that narrowing the scope of section 16(2)(a) in the manner adopted by the High Court will result in
‘classifiable materials’ being published without classification. Rather, the effect of the High Court order is to ensure that non–classifiable materials are published without having to be submitted for classification.
23.5 Moreover, we emphasise that, no matter how tightly section 16(2) is drawn, there remains available a parallel complaints mechanism under section 16(1). That leaves it open to any member of the public – including an organisation such as JASA – to request the classification of
any publication. This avoids any possible difficulty in relation to the
“statutory fissure”.
24 Lastly, JASA submits that the adoption of a pre-publication classification system is congruent with “other open and democratic societies”.18 JASA offers a single example in support of this contention – the position in Australia.19
25 The reliance on Australia is unhelpful.
25.1 Australia has no justiciable Bill of Rights nor any general constitutional right to freedom of expression.
25.2 Accordingly, its censorship laws are subject only to a very narrow constitutional test: they are measured against the implied constitutional freedom of ‘political communication’.
25.3 The Australian constitutional test, as formulated in Coleman v Power,20 is:
“(1) Does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect?
(2) If so, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the system of government prescribed by the Constitution?”
(emphasis added)
18 JASA’s written submissions, para 80.
19 JASA’s written submissions, paras 69-79.
20 (2004) 220 CLR 1. See also Brown v Classification Review Board (1998) 154 ALR 67; and NSW Council for Civil Liberties Inc v Classification Review Board (No 2)[2007] FCA 896 at para 180 read with para 205.
25.4 This constitutional test is plainly entirely different to the approach under our Constitution. For this reason alone, Australia’s endorsement of a pre- publication classification system cannot support any argument for constitutional validity in South Africa.21
26 Moreover, the approach in Australia appears entirely out of kilter with the approach in the overwhelming majority of open and democratic societies. Pre- publication classification is a form of prior restraint or censorship, which is widely regarded as a drastic interference with freedom of speech. It is accordingly a mechanism used in democracies only with the utmost caution and the strictest circumscription.
27 Thus, for example, in the United Kingdom:
27.1 The ‘rule against prior restraint’, as it came to be known, was first authoritatively articulated by the jurist, Sir William Blackstone in his Commentaries on the Law of England (1765):
“The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publication and not in freedom from censure for criminal matter when published.”
27.2 With the enactment of the Human Rights Act in 1998, the British Government acknowledged media concern about prior restraint (particularly in the form of pre-trial injunctions against publications) by
21 See, for example, in the context of assessing the value of the jurisprudence of the European Court of Human Rights, S v Makwanyane and Another 1995 (3) SA 391 (CC) at para 109 and National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC) at para 41.
including a provision giving special protection in cases involving freedom of speech issues. Section 12(3) requires that before issuing an injunction that will affect the right to freedom of expression the court must be
“satisfied that the applicant is likely to establish that publication should not be allowed”.
27.3 It is notable that the UK does not adopt a prior restraint model with regard to ‘obscene publications’. Instead, the UK imposes criminal sanctions ex post facto for the publication of obscene material under the Obscene Publications Act, 1959.22
28 In the United States:
28.1 Prior restraint on publication is strictly curtailed under the First Amendment. The US Supreme Court has emphatically pronounced that
“the chief purpose” of the First Amendment guarantee of free speech was
“to prevent previous restraints upon publication".23
28.2 The federal US government does not employ a pre-publication classification system for sexually-explicit material, but rather imposes
22 Section 1(1) of the Obscenities Act, 1959 (c. 66) defines a publication as ‘obscene’ where “the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it”.
23 Near v. Minnesota, 283 U.S. 697, 713 (1931). See also: Nebraska Press Association v Stuart 427 U.S. 539, 559 (1976).Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971); Freedman v.
Maryland, 380 U.S. 51, 57, 58 (1965); New York Times Co. v. United States, 403 U.S. 713, 714 (1971).
restrictions on the publication of obscene material24 under threat of ex post facto criminal sanctions.25
29 The American Convention on Human Rights, adopted in 1969, emphatically bans all forms of prior censorship.
29.1 Paragraphs 1 and 2 of Article 13 read:
“1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.
2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:
(a) respect for the rights or reputations of others; or
(b) the protection of national security, public order, or public health or morals.”
29.2 The Convention has been ratified by 24 of the 35 member states of the Organisation of American States. It accordingly reflects the consensus position in Central and South America.26
30 In Mosley v United Kingdom,27 the European Court of Human Rights recently reaffirmed its approach to prior restraint under Article 10 of the European Convention on Human Rights:28
24 ‘Obscenity’ was defined in Miller v California 413 U.S. 15, 27 (1973) as material that “depicts or describes patently offensive ‘hard core’ sexual conduct.”
25 The principal federal obscenity laws are 18 U.S.C. §§ 1460-1470.
26 The list of signatories is available at http://www.oas.org/juridico/english/Sigs/b-32.html.
27 (2011) 53 E.H.R.R. 30, paras 116-117. See also Observer v United Kingdom (1992) 14 E.H.R.R.
153 at para 60 (the ‘Spycatcher case’).
“ . . . [T]he Court must exercise the utmost caution where measures taken or sanctions imposed by the national authorities are such as to dissuade the press from taking part in the discussion of matters of legitimate public concern.
. . .[T]he Court has emphasised that while art.10 does not prohibit the imposition of prior restraints on publication, the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest.” (Emphasis added.)
31 The above survey, albeit not comprehensive, is indicative of the general aversion of democracies around the world to prior restraint on publication, particularly where the media is concerned. Where prior restraint is not banned completely, it is permitted only with the “utmost caution” and subject to the strictest standards of necessity. The present provisions do not comply with this standard.
28 Article 10(1) of the European Convention on Human Rights, 1950 enshrines the right to freedom of expression in the following terms:
"Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers."
THE REMEDY IN RELATION TO SECTION 16(2)(a) OF THE ACT
32 On finding that section 16(2)(a) is unconstitutional, the High Court adopted the remedy proposed by the Applicants. The remedy, as set out in paragraphs 1.2 and 2.2 of the High Court order, is in two parts:
32.1 the word “contains” is deleted and the words “advocates or promotes” are read-in to remedy the over-breadth of section 16(2)(a); and
32.2 the words “or magazine” are read-in after the word “newspaper” to extend the protection afforded newspapers to magazines under section 16(2).
33 JASA submits that, in the event that this Court confirms the declaration of invalidity in respect of section 16(2)(a), the remedy chosen by the High Court ought not to be confirmed. JASA argues that the High Court remedy is unsatisfactory on several grounds, and proposes that this Court adopt the alternative remedy it proposes.
34 We begin by addressing JASA’s criticisms of the High Court remedy, and thereafter consider its proposed remedy.
The appropriateness of the High Court remedy
35 JASA submits that the High Court remedy is unsatisfactory because the words
“advocates or promotes” are vague and imprecise.29 Moreover, it contends that
29 JASA’s written submissions, paras 87-89.
limiting the scope of section 16(2)(a) to any publication that “advocates or promotes” sexual conduct in a particular manner does not serve the objectives of the Act, in that even neutral portrayals of sexual conduct can cause harm to readers.30
36 We submit that these contentions are without merit.
37 The Act itself uses the word “advocates” in many instances, including in sections 16(2)(b) and (d).
38 In any event, there is no mystery or imprecision in the meaning of the verbs “to advocate” or “to promote”. Given that the definitional sections in the Act and Guidelines do not accord any special meaning to the term “advocates”, the ordinary meaning of the word must apply. The Oxford English Dictionary (online edition) defines the words, in relevant part, as follows:
38.1 “to advocate” means “to publically recommend or support”;
38.2 “to promote” means “to attempt to sell or popularise by advertising or publicity”; “to advocate”, “to contribute to the progress or growth of, or to further”.
39 It is clear that the import of these words, in contrast to the word “contains”, is that they require a contextual determination of the meaning and impact of the publication in question.
30 JASA’s written submissions, paras 90-92.
40 This is in any event precisely what the Act and the Guidelines mandate in determining whether any classification is necessary. Thus, for example, section 16(4) expressly requires that publications containing explicit sexual conduct will not result in classification when “judged within context” the publication is a publication of scientific, literary or artistic merit or is on a matter of public interest.
41 There is thus no basis for the contention that section 16(2)(a) ought to extend to
‘neutral portrayals’ of sexual conduct or, apparently, vehement condemnation of such conduct. Such an approach could not be a reasonable and justifiable limitation under the Constitution.
JASA’s proposed alternative remedies
42 JASA proposes an alternative, 3-part remedy in relation to section 16(2)(a):31
42.1 Replacing the word “publication” in section 16(2)(a) with the words
“material intended for publication” to obviate the need for the whole publication to be submitted for classification;
42.2 Reading-in the words “as soon as practicable, but not later than five days after a request in terms of subsection (1) or a submission in terms of subsection (2)” after the word “shall” in section 16(4) to mandate classification within a reasonable time; and
31 JASA’s written submissions, para 95.
42.3 Replacing the words “contains sexual conduct which” in section 16(2)(a) with the phrase “contains a visual presentation of sexual conduct which, judged within context – ” to limit the application of the section to visual presentations which JASA submits is “the more accessible, pervasive and deleterious” form of description of sexual conduct.
43 In the event that this Court is reluctant to remedy section 16(2)(a) of the Act by means of reading-in, JASA submits that the Court ought to suspend the declaration of invalidity for a period of 18 months to give Parliament an opportunity to remedy the defects in the Act.32 JASA contends that this Court may suspend the declaration of invalidity without providing interim relief.33 In the alternative, JASA argues that any interim relief should follow the reading-in proposal it advances.34
JASA’s reading-in remedy
44 We submit that, although the reading-in remedy proposed by JASA would go part of the way to address the unconstitutionality of section 16(2)(a), it would remain inadequate.
45 A requirement that only the relevant parts, as opposed to the whole of a publication, must be submitted under section 16(2)(a) for classification would not resolve the logistical and financial problems associated with mandatory pre-
32 JASA’s written submissions, paras 96-97.
33 JASA’s written submissions, para 98.
34 JASA’s written submissions, para 99.
publication classification. The finalisation of the publication would still be delayed for no good reason where the parts required to be submitted do not in fact fall to be classified under section 16(4). Where the ‘submitable part’ is a feature article in a magazine, corresponding advertising will also be affected.
46 Similarly, placing a five-day limit on the classification period would not address the concerns over delay.
46.1 This is explained in the affidavits of Silke Wollenhaupt, the Business Manager at the Magazines Division of Avusa (Annexure 31)35 and Linda Pietersen, the Acting Editor of You Magazine (Annexure 32).36 Ms Wollenhaupt makes it clear at paragraph 8 of her affidavit that,
“These difficulties would apply even if it is assumed that the Board would be able to complete its approval process within a time period which does not exceed five calendar days.” 37
46.2 Furthermore, there is no reason to assume that the inhibiting effect on the distribution of foreign publications would be any less severe if only a part of the publication was required to be submitted for classification, or if the consequent delay was limited to five days.
47 In respect of the proposal that section 16(2)(a) be made applicable only to
‘visual presentations’, it is notable that this accords with the Respondents’
submissions in the High Court. The Respondents’ submissions prompted the
35 Record, vol. 3, pp. 291-300.
36 Record, vol. 3, pp. 301-306.
37 Record, vol. 3, p. 294. See also: Record, vol. 1, p. 33.
Applicants to amend the Notice of Motion to include prayer 2A as an alternative prayer.
47.1 The Applicants acknowledge that narrowing section 16(2)(a) to apply only to visual presentations of sexual conduct would significantly address their concern of over-breadth. However, the Applicants do not support this approach as a primary form of relief. This is because such an amendment to section 16(2)(a) would likely undermine the achievement of the important objects of the Act.
47.2 In some instances, textual and verbal descriptions of sexual conduct may indeed be of such a nature to require classification. The explanatory note on the meaning of ‘impact’ under clause 4.5 of the Guidelines makes the point:
“Verbal expressions are usually of lower impact than the same expressions in visuals. Verbal references to sexual conduct are, generally, of less impact than visual depictions of the same activities. However, the effect of IMITABLE ACTS, CRIMINAL TECHNIQUES and INSTRUCTIONAL DETAILS may not be very different in so far as verbal, textual and visual representations are concerned.”
47.3 Yet, adopting the visual presentation approach of JASA would exclude all forms of non-visual expression – no matter how graphic and detailed, and no matter how much they advocate or promote the activities concerned.
48 For all the above reasons, the Applicants persist in seeking confirmation of the High Court order.
Suspension
49 We submit that a suspended declaration of invalidity is neither necessary nor appropriate in this case.
50 It is trite that unless the interests of justice and good government dictate otherwise, the Applicants are entitled to the remedy they seek because that will effectively vindicate the rights have been violated. This court may decline to grant it only if there are compelling reasons for withholding the requested remedy and the discretion conferred on the courts by section 172(1) of the Constitution must be exercised judiciously.38
51 In this matter, no party, including the Respondents, made out a case for suspension on the papers. Yet this is what this Court’s jurisprudence requires:
“[A]s a general rule, a government organ or other party wishing to keep an unconstitutional provision alive should at least indicate the following:
what the negative consequences for justice and good government of an immediately operational declaration of invalidity would be; why other existing measures would not be an adequate alternative stop-gap; what legislation on the subject, if any, is in the pipeline; and how much time would reasonably be required to adopt corrective legislation. Parties interested in opposing such an order should be given an opportunity to motivate their opposition.”39
52 Moreover, the remedy adopted by the High Court is simple and narrowly- tailored. It preserves the core elements of the Act and ensures that publications which need to be submitted for pre-publication classification are indeed
38 Mvumvu and Others v Minister of Transport and Another 2011 (2) SA 473 (CC), at paras 45-46.
39 Mistry v Interim Medical and Dental Council of South Africa and Others 1998 (4) SA 1127 (CC) para 37. See also Chief Lesapo v North West Agricultural Bank and Another 2000 (1) SA 409 (CC) para 33.
submitted. At the same time, it avoids the substantial harm to the rights of the media and the public that would result from a suspension.
53 Moreover, the immediate reading-in and the absence of suspension would not prevent Parliament from crafting an alternative legislative scheme if it so chose.
Parliament could still intervene at any time.40
40 Johncom Media Investments Ltd v M and Others 2009 (4) SA 7 (CC) at para 43; South African Liquor Traders' Association and Others v Chairperson, Gauteng Liquor Board, and Others 2009 (1) SA 565 (CC) at para 44.
THE EXCLUSION OF MAGAZINES
54 JASA contests the finding by the High Court that the exclusion of bona fide and self-regulated magazines from the protection afforded such newspapers under sections 16(1), 16(2) and 24A(2)(a) of the Act is inconsistent with the Constitution on two bases:
54.1 The relief is unnecessary if section 16(2)(a) is remedied.41
54.2 The system of self-regulation under the Press Code is inadequate to address the objects of the Act – i.e. to ensure that children are protected from exposure to disturbing and harmful materials and premature exposure to adult experiences, and to provide consumer advice to adults.42
55 We address these submissions in turn.
The necessity of both sets of relief
56 Without both sets of relief, we submit that the impugned provisions would remain unconstitutional.
41 JASA’s written submissions, para 106.
42 JASA’s written submissions, para 107.
57 On the one hand, reading in the words “advocates or promotes” would substantially resolve the difficulty in relation to the pre-publication classification required by that section.
57.1 However, it would not affect section 16(1) of the Act. The consequence of this would be a situation whereby:
57.1.1 Newspapers subject to the self-regulatory mechanisms are exempt from having any person submit their publications to the Board for classification.
57.1.2 But magazines which are subject to the identical self-regulatory mechanism have no such exemption and can still have any person submit their publications to the Board for classification.
57.2 Resolving only the section 16(2)(a) difficulty would therefore neither render the distinction between newspapers and magazines rational, nor resolve it from a practical point of view.
58 On the other hand, if the only relief granted is to extend the exemption to magazines, this would not resolve the over-breadth and impermissibility of section 16(2)(a) in relation to the publications that are not newspapers or magazines subject to the self-regulatory regime. Those publications still affected by section 16(2)(a) would include:
58.1 foreign newspapers and magazines;43
58.2 all books;44
43 For example, Annexures 17 to 22. Record, vol. 2, pp. 122-173.
58.3 all academic articles and journals;45 and
58.4 all law reports.46
The adequacy of self-regulation under the Press Code
59 JASA’s submissions on the application of the Press Code cannot be relied on by this Court.
59.1 First, they are inconsistent with the common cause facts on the papers.
At no stage did the Respondents ever suggest that the self-regulatory mechanisms were inadequate. Indeed, they acknowledged in their affidavit that “It is indeed the attitude of the legislature that self-regulation is to be encouraged to the extent that it affords effective protection and sensitive adult readership”.47
59.2 Second, they are inconsistent with the express choice of Parliament, in enacting sections 16(1) and (2) of the Act, to recognise the adequacy of the Press Ombudsman as an alternative system of regulation.
59.3 Third, they in no way answer the Applicants’ constitutional attack. That attack is that it is irrational and unjustifiable to allow newspapers subject to a self-regulatory regime to be exempt from the Act and then refuse to allow magazines subject to the identical regime the same exemption.
Nothing in JASA’s submissions deals properly with this issue.
44 For example, Annexures 24 to 27. Record, vol. 1-3, pp. 177-218.
45 For example, Annexures 28 and 29. Record, vol.3, pp. 219-268.
46 For example, Annexure 30. Record, vol. 3, pp. 269-290.
47 First and Second Respondents’ answering affidavit, para 18.5. Record, vol. 4, pp. 369.
60 Moreover, and in any event, we emphasise that, on a proper reading of its provisions, it is clear that the Press Code does meet the protective objects of the Act. The following provisions are relevant:48
60.1 Clause 1.7 regulates sexual content, and provides that:
“1.7 Reports, photographs or sketches relative to matters involving indecency or obscenity shall be presented with the due sensitivity towards the prevailing moral climate.
1.7.1 A visual presentation of sexual conduct may not be published, unless a legitimate public interest dictates otherwise.
1.7.2 Child pornography shall not be published.”
60.2 Clauses 2.1 and 2.2 regulate degrading, disrespectful and discriminatory content. They provide:
“2.1 The press should avoid discriminatory or denigratory references to people’s race, colour, ethnicity, religion, gender, sexual orientation or preference, physical or mental disability or illness, or age.
2.2 The press should not refer to a person’s race, colour, ethnicity, religion, gender, sexual orientation or preference, physical or mental illness in a prejudicial or pejorative context except where it is strictly relevant to the matter reported or add significantly to readers’
understanding of that matter.”
60.3 Clause 8 regulates the reportage of violence. It provides:
“8. Due care and responsibility shall be exercised by the press with regard to the presentation of brutality, violence and atrocities.”
48 See Part A of the South African Press Code, attached to the founding affidavit as ‘Annexure 6’, Record, vol. 1, pp.90-93.
61 Comparing these provisions against the Act reveals that, in crucial respects, the Press Code imposes greater restrictions on the publication of sexual content than the classification provision – section 16(4) – of the Act:
61.1 Both the Press Code and the Act impose an absolute ban on child pornography.
61.2 Both the Press Code and the Act render the restrictions on publication subject to public interest considerations. However, the Act permits the publication of depictions of sexual conduct even where the public interest is not served by the publication where, for example, the sexual conduct is not of the sort described under section 16(2)(a) or 16(4). By contrast, clause 1.7.1 of the Press Code prohibits the publication of visual presentation of any sexual conduct where a legitimate public interest is not thereby served.
62 In light of the above, the Applicants submit that there is simply no basis for JASA’s submission that the Press Code is inadequate.
63 The remainder of JASA’s submissions pertain to the effectiveness of the complaints procedure provided for under Part B of the Press Code, and the independence of the enforcement bodies, the Press Ombudsman and the Press Appeals Panel.49
64 We submit that this contention:
49 Annexure 7, Record, vol. 1, pp. 94-97.
64.1 is irrelevant in light of the acceptance by Parliament and the Respondents of the self-regulatory mechanisms concerned; and
64.2 constitutes no answer to the rational challenge in relation to the distinction between newspapers and magazines.
65 Moreover, no proper factual basis has been laid for such submissions. Having chosen not to seek to adduce evidence, JASA cannot now make such submissions. Allowing it to do so would be especially unfair in that the Applicants have never been afforded the opportunity to address such issues by adducing their own evidence.50
66 Moreover, it is noteworthy that the vast majority of press councils in the world are self-regulatory. A review carried out by the New Zealand Press Council in 2007 found that the overwhelming majority – fully 86% – of press councils in its survey were non-statutory. A press council is set up by statute, or otherwise controlled by the government, in only 14% of the press councils for which there is information.51
67 Similarly, overwhelmingly international consensus is in favour of self-regulation of the press:
67.1 In May 2011, UNESCO marked the 20th anniversary of its Windhoek Declaration by issuing the 2011 Washington Declaration which outlined the importance of freedom of speech. The 2011 Declaration calls on
50 See: In re Certain Amicus Curiae Applications: Minister of Health and Others v Treatment Action Campaign and Others 2002 (5) SA 713 (CC) at para 10.
51 Barker I & Evan L. 2007. Report on the Review of the New Zealand Press Council, p. 16.
governments to respect media freedom, and calls on the media “to promote and strengthen forms of voluntary and independent self- regulation that enhance and support high-quality ethical journalism and build public trust”.52
67.2 The African Union’s “Statement of Principles on Freedom of Expression”, which was accepted in Banjul in 2002, says: “Effective self-regulation is the best system for promoting high standards in the media.”53
67.3 In 2008, the Parliamentary Assembly of the Council of Europe adopted Resolution 1636 (2008), which called on Member States to assess their national media legislation bearing in mind the basic principle that there should be a system of media self-regulation and that journalists should set up and apply their own professional codes of conduct.54
67.4 In February 2010, the British Parliamentary Select Committee on Culture, Media and Sport reaffirmed the importance of self-regulation in the following terms:
“We do not believe that there is a case for a statutory regulator for the press, which would represent a very dangerous interference with the freedom of the press. We continue to believe that statutory regulation of the press is a hallmark of authoritarianism and risks undermining democracy. We recommend that self-regulation should be retained for the press, while recognising that it must be seen to be effective if calls for statutory intervention are to be resisted.”55
52 UNESCO. 2011. The Washington Declaration: 21st Century: New Frontiers, New Barriers.
Washington. UNESCO pp 3. Accessed at http://www.unesco.org/
53 AU. 2002. Statement of Principles on Freedom of Expression. Banjul. AU. Accessed at http://www.unesco.org/
54 Resolution 1636 (2008), Indicators for Media in a Democracy. Accessed at http://assembly.coe.int/
55 House of Commons Select Committee. Second Report: Press Standards, Privacy and Libel (first volume). Accessed at http://www.publications.parliament.uk/pa/cm/cmcumeds.htm.
68 As the above statements suggest, far from being ineffective, self-regulation of the press is widely favoured precisely because it has proven to be the surest way of promoting high-quality and independent journalism that serves the public interest.
CONCLUSION
69 In the circumstances, the Applicants persist in their application for confirmation of the High Court order.
GILBERT MARCUS SC STEVEN BUDLENDER Counsel for the Applicants
Chambers Johannesburg 6 March 2012
TABLE OF AUTHORITIES
South African cases
Chief Lesapo v North West Agricultural Bank and Another 2000 (1) SA 409 (CC) In re Certain Amicus Curiae Applications: Minister of Health and Others v Treatment Action Campaign and Others 2002 (5) SA 713 (CC)
Islamic Unity Convention v Independent Broadcasting Authority and Others 2002 (4) SA 294 (CC)
Johncom Media Investments Ltd v M and Others 2009 (4) SA 7 (CC)
Mistry v Interim Medical and Dental Council of South Africa and Others 1998 (4) SA 1127 (CC)
Mvumvu and Others v Minister of Transport and Another 2011 (2) SA 473 (CC) National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC)
S v Makwanyane and Another 1995 (3) SA 391 (CC)
South African Liquor Traders' Association and Others v Chairperson, Gauteng Liquor Board, and Others 2009 (1) SA 565 (CC)
Foreign cases
Brown v Classification Review Board (1998) 154 ALR 67 Coleman v Power (2004) 220 CLR 1
Freedman v. Maryland, 380 U.S. 51, 57, 58 (1965) Miller v California 413 U.S. 15, 27 (1973)
Mosley v United Kingdom (2011) 53 E.H.R.R. 30 Near v Minnesota, 283 U.S. 697, 713 (1931)
Nebraska Press Association v Stuart 427 U.S. 539, 559 (1976) New York Times Co v United States, 403 U.S. 713, 714 (1971)
NSW Council for Civil Liberties Inc v Classification Review Board (No 2)[2007] FCA 896
Observer v United Kingdom (1992) 14 E.H.R.R. 153
Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971)
Other
Barker I & Evan L. 2007. Report on the Review of the New Zealand Press Council.
New Zealand. NPA, EPMU, MPA. pp 16.
UNESCO. 2011. The Washington Declaration: 21st Century: New Frontiers, New Barriers. Washington. UNESCO pp 3. Accessed at http://www.unesco.org/
AU. 2002. Statement of Principles on Freedom of Expression. Banjul. AU. Accessed at http://www.unesco.org/
Resolution 1636 (2008), Indicators for Media in a Democracy. Accessed at http://assembly.coe.int/
House of Commons Select Committee. Second Report: Press Standards, Privacy and Libel (first volume).
Accessed at http://www.publications.parliament.uk/pa/cm/cmcumeds.htm
