Pre-publication classification of sex content unconstitutional

2012-09-28 12:07

A law that requires the Film and Publication Board to classify harmful sexual conduct in magazines before publication has been declared unconstitutional.

In a judgment handed down by the Constitutional Court today, it said that the law was an unacceptable infringement of the right to freedom of expression.

The majority judgment, penned by Judge Thembile Skweyiya, noted the importance of freedom of expression and the press in a democracy.

“One might even consider the press to be a public sentinel, and to the extent that laws encroach upon press freedom, so too do they deal a comparable blow to the public’s right to healthy, unimpeded media,” the judgment reads.

The sections of the act deemed to be unconstitutional created a requirement that magazines have to submit for approval content which portrays sexual conduct that shows disrespect for the right to human dignity, which degrades a person or constitutes incitement to cause harm.

The act criminalised the failure of magazines to submit such material for classification and was punishable by a fine or imprisonment not exceeding five years.

Newspapers were expressly excluded from the submission requirement, but not magazines.

The court ruled that the prior classification “curtailed” the right to freedom of expression because it moved control of the right from the right-bearer to the Film and Publication Board.

“The very delay in bringing important information to the public’s attention makes inroads into the right to freedom of the press and other media.

“The contents of the publication may even be redundant by then, yet there would be no remedial action open to the publisher,” the court held.

In submissions to the court, the Film and Publication Board said that the limitation of the right to freedom of expression was justifiable because it prevented the exposure of children to age-inappropriate material and would prevent the publication of child pornography.

But the court shot this down, saying these were already governed by other sections of the Film and Publication Act.

The court rectified the legislation by excluding all newspapers and magazines which are recognised by the Press Ombudsman from classification. These would typically include mainstream consumer magazines.

It also removed the provision which requires submission of material containing sexual conduct in its entirety.

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