Sex gag on media struck down

2012-09-29 00:00

AN Orwellian amendment to the Film and Publications Act, which required publishers to get prior approval from “big brother” before publishing material of a sexual nature, has been declared unconstitutional.

The Constitutional Court yesterday ruled that the requirement of prior approval limited the right to freedom of expression that was vital to a democracy.

The amendment introduced in 2010 said publishers — with the exception of newspapers — had to submit material of a sexual nature to the Film and Publications Board for approval before publication.

It was not clear why newspapers were not included, but commentators at the time felt this was because they are controlled by the Press Ombudsman.

The amendment said failure to submit the material for prior approval amounted to a criminal offence.

Print Media South Africa took the Department of Home Affairs to court over the amendment. The Film and Publications Board falls under Home Affairs.

The South Gauteng High Court ruled that the amendment was unconstitutional. The ruling was reviewed by the Constitutional Court.

In majority judgment, Judge Thembile Skweyiya said the requirement of compulsory submission with the sanction of a penalty limited the right to freedom of expression.

Skweyiya said the act’s purpose of controlling publications of this kind would be equally well served in a less restrictive manner.

He said publishers could be allowed to get an opinion from the board on the material prior to publication.

The court also held that the unequal treatment of magazines compared to newspapers offended the right to equality.

In a separate judgment, Judge Johann van der Westhuizen said the criteria for prior submission were vague and overly broad.

The amendment required prior approval for any material that contained, among other things, sexual conduct that violates or shows disrespect for the right to human dignity or material that degrades a person or constitutes incitement to cause harm.

Van der Westhuizen said the amendment was constitutionally invalid because it embodied a system of prior restraint based on vague and broad criteria.

The Freedom of Expression Institute (FXI) welcomed the ruling.

FXI director Rashied Galant said it was not only a victory for the right to freedom of expression, it was also a victory for the freedom to publish.

He said the amendment would have caused a bureaucratic nightmare for publishers if they were forced to submit material for approval prior to publication. This would have affected deadlines, there could have been advertising implications and a host of other difficulties, he said.

• nalini@witness.co.za

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