ASHLEY SLAMAT

• ATTORNEYS AT LAW •

Success. Understood™

Media Law Fulcrum for Free Speech

Media Law Fulcrum for Free Speech

by | Jul 6, 2021 | Media Law

MEDIA LAW – THE FULCRUM FOR FREE SPEECH

ASHLEY SLAMAT ATTORNEYS  – no games, Just Law™

Media law is that branch of South Africa’s substantive law which deals with the various aspects of the legality of the media, also known as the press.

Cursorily, media law involves the following aspects of the law in regard to freedom of speech (and freedom from censorship) in the context of the Constitution:

  1. print media;
  2. digital media;
  3. broadcasting and telecommunications;
  4. the Film and Publications industry including the regulation of pornography;
  5. court reporting duties of the media and it’s concomitant responsibilities;
  6. delictual or tort liability of the media for defamation, insult or crimen injuria;
  7. advertising law and the promotion of fair competition via the media;
  8. interception and monitoring of communications by the media;
  9. disclosure of information and whistle-blowing in the media;
  10. restrictions of the information pertaining to state security.

Obviously, media law is vital and essential in any constitutional democracy as it protects the rights of citizens to freedom of speech and also their freedom to unpopular speech. George Orwell once said that “if freedom of speech means anything, then it means that right to tell a man something which he does not want to hear”. Consequently, unpopular speech is absolutely vital for the health of any free nation.

Furthermore, media law is imperative in the protection and promotion of the right not be subjected to censorship by the will of the State (or it’s agents) in permitting it’s citizens to know only what it wants citizens to know. In this context, the right to decide for oneself (and not to be regarded as a sheep) is an absolute inherent human right. Undoubtedly, media law is the fulcrum of free speech.

In South Africa, certain pieces of legislation (in whole or in part) may be regarded as an infringement of the right to freedom of speech (including its other inherent rights), these laws being, inter alia, the following:

  1. Official Secrets Act 16 of 1956;
  2. Protection of Information Act 84 of 1982;
  3. Internal Security Act 74 of 1982;
  4. Petroleum Products Act 120 of 1977;
  5. National Supplies Procurement Act 89 of 1970;
  6. National Key Points Act 102 of 1980;
  7. Post Office Act 44 of 1958
  8. Interception and Monitoring Prohibition Act 127 of 1992;
  9. Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002 (RICA)

While the following laws may be regarded as forms of protection of the rights of freedom of speech (including its other inherent rights) and the right not be censored:

  1. Protected Disclosures Act 26 of 2000;
  2. Telegraph Messages Act 44 of 1963;
  3. Criminal Procedure Act 51 of 1977 (sections 189(1), section 205(1) and (4);
  4. Promotion of Access to Information Act 2 of 2000;
  5. Public Protector Act 23 of 1994 (formerly known as the Ombudsman in terms of the Ombudsman Act 118 of 1979 and the Advocate General in terms of the Advocate General Act 118 of 1979;
  6. Explosives Act 26 of 1956;
  7. Conservation of Agricultural Resources Act 43 of 1983;
  8. Human Tissue Act 65 of 1983;
  9. Electronic Communications & Transactions Act 25 of 2002;
  10. Electronic Communications Act 36 of 2005;
  11. Films and Publications Act 65 of 1996;
  12. Copyright Act 98 of 1978;
  13. Electoral Act 73 of 1998;
  14. Competition Act 89 of 1998;
  15. Mental Health Act 17 of 2002;
  16. Correctional Services Act 111 of 1998;
  17. South African Police Service Act 68 of 1995.

Consequently, in South Africa it is vital that all aspects of media law should be protected and advanced to the utmost degree in any constitutional democracy while advocating that it is useless to argue taste and even more useless to litigate it.

www.slamatlaw.co.za ASHLEY SLAMAT ATTORNEYS – COPYRIGHT

The Films and Publications Act No 65 of 1996

The Films and Publications Act No 65 of 1996

by | Mar 17, 2021 | Media Law

The Films and Publications Act 65 of 1996 (“the Act”) was enacted to provide for the regulation and control of certain films and publications by means of a system of classification and to that end to establish a Films and Publications Board (FPB) and a Films and Publications Review Board (“FPRB”).

The Films and Publications Act 65 of 1996, which came into operation on 01 May 1996, repealed the Publications Act 42 of 1974. Since coming into operation the Act has been subject to, inter alia, the following amendment acts which has substantially amended the Act in its original form:

  • Films and Publications Amendment Act 34 of 1999;
  • Films and Publications Amendment Act 18 of 2004;
  • Films and Publications Amendment Act 3 of 2009.

The Act defines certain terms, such as:

– classification,
– computer software,
– distribute,
– distributor,
– film,
– in public,
– publication,
– visual presentation.

The Act is comprised of eight chapters and various schedules.

Summary

In terms of the Films and Publications Act 65 of 1996, a “classification” means any decision taken by the FPB in terms of this Act.

Chapter 3 deals with complaints and applications concerning publications.

Chapter 4 deals with the applications for the classification of films and the classification of films by the FPB.

Chapter 5 deals with certain procedural rights, including the right to appear before the FPB and the right to appeal to the FPRB and the High Court.

Chapter 6 deals with various exemptions which are afforded to persons in respect of publications and films.

Chapter 7 deals with the prohibition of conduct which is contrary to classifications.

Chapter 8 deals with the regulations, amendments and the repeal of certain acts.

The Schedules

Films or publications are classified by assigning to each a specific mark or sign which indicates the content of the film or publication.

Schedule 1 deals with XX classifications for publications.

Schedule 2 deals with F18 classifications for publications.

Schedule 3 deals with R18 classifications of publications.

Schedule 4 of the Act deals with F18 classification for periodical publications.

Schedule 5 of the Act deals with the artistic and scientific exemptions in respect of publications.

Schedule 6 deals with XX classifications of films.

Schedule 7 deals with X18 classification for films.

Schedule 8 deals with age restrictions for films.

Schedule 9 deals with artistic and design exemptions for films.

Schedule 10 deals with hatred.

Schedule 11 deals with sexual conduct.

Schedule 12 deals with repeals.

Object/Purpose of the Act

To understand the Films and Publications Act 65 of 1996, the definitions assigned by the Act to the words such as “film”, “publication” and “distribution” is important.

In terms of chapter 2, the object of the Act is to regulate or control:

  • the distribution of certain publications; and
  • the exhibition and distribution of certain films

primarily by means of classification (including classification guidelines) and the imposition of age restrictions and the giving of consumer advice with due regard being had to the fundamental rights enshrined in the Bill of Rights.

Two juristic persons have been established in terms of the Act, namely, FPB (“the Board”) and the FPRB which operates independently of the former.

In terms of s10 of the Act, the Executive Committee established by the Board shall appoint classification committees as often as may be necessary.

Chapter 3 of the Act sets out the means by which any person may lodge a complaint against any type of publication distributed in the Republic which has not been classified.

A complaint so lodged shall be referred to a classification committee for a decision and classification in terms of s17.

Any person may, after the expiry of a period of two years from the date upon which a classification was published in the Gazette, lodge an application with the Board, applying for the imposition of more lenient conditions relating to the distribution of that publication or that such distribution be freed from all restrictive conditions.

The Chief Executive Officer (CEO) of the Board shall refer a complaint, under s1 and 2, to a classification committee for examination and classification.

In terms of the Act, no decision shall be taken on any complaint or application lodged in terms of s1 or 2 unless the publisher of that publication has been given a reasonable notice of the place where, the date, and time when the application will be heard provided that if a periodical publication is a subject of an application and notice which is received by the publisher concerned three days prior to the date of such hearing, such notice shall be regarded as reasonable notice.

In terms of s17 of the Act, a classification committee shall upon submission to it of a complaint or an application in terms of s16 examine and consider the content of the publication in the question and shall with reference to schedules 1, 2, 3, and 4 read with schedule 5, or with reference to schedule 10, classify the publication as

a) XX if schedule 1 or 10 applies;
b) X18 if schedule 2 applies;
c) R18 if schedule 3 applies; or
d) F18 if schedule 4 applies.

The classification committee shall:

  • in the case of an F18 publication, impose any or both of the conditions referred to in schedule 3 and shall inform the CEO of its decision, the reason therefore and of the classification;
  • in the case of a XX classification shall inform the CEO of its decision, of the particular clause of schedule 1 upon which the decision is based and in the case of R18 or F18 classification of the conditions imposed.

In terms of s17(2), the CEO shall, if a publication to which an application submitted in terms of section 61 relates has in terms of a decision of a classification committee been classified as being XX, X18, R18 or F18, cause the decision to be published in the government gazette.

Download PDF