Films and Publications Amendment Bill: deliberations

Meeting report

The Chairperson welcomed Members and the team from the Department of Communications (DOC) and said the purpose of the meeting was to deliberate on the Films and Publications Amendment Bill (B37 of 2015). He also stated that the Ms Phumelele Ngema, Parliamentary Legal Advisor (PLA) had sent apologies that she would be late because she was attending another meeting. .

Ms P Van Damme (DA) expressed concerns that Members had not received the document that incorporated the changes in the A list on the proposed Bill.

The Chairperson said the new Minister, Ms Mmamaloko Kubayi was absent due to a Cabinet meeting. He welcomed Ms Ngema.

Ms Van Damme (DA) asked Ms Ngema why she had not sent the document that incorporated the changes on the A list with the proposed Films and Publications Amendment Bill despite the Committees earlier request.

Ms Ngema replied that the proposed Bill that incorporated the changes in the A list had not been prepared because the Committee had not adopted the changes in the A list. She also stated that the production of the document by Creda Communications (Pty) Ltd had cost implications.

Ms Van Damme said it was unacceptable because the request had been made inMarch 2017.

Mr R Tseli (ANC) said he understood the situation based on the reason given by Ms P Ngema. He also suggested that the Committee take note of the concerns raised and proceed with the meeting.

The Chairperson asked Ms P Ngema to proceed.

Ms Ngema said she would read the changes in the clauses one by one and allow Members to engage on the clause before taking the next one.

Ms Van Damme said consideration of the A List in isolation was not good enough as it did not allow for a full interpretation of the changes on the clauses.

The Chairperson reminded Members that the changes in the A list was a product of the Committees’ work hence it should be able to work with the changes on the A List.

Mr Tseli suggested that clarifications should be sought from Ms P Ngema and her team as she reads the changes on each clause from the A List.

Ms N Tolashe (ANC) said Ms Ngema’s approach was correct and Members could engage on each clause afterwards..

The Chairperson remarked that the meeting should proceed with the approach and if issues arose Members would deliberate on if it agreed with the proposed change or not.

Ms Ngema, proceeded to read the changes as stated on the A List and the reason for the changes.

Mr Tseli asked for clarity on why the earlier definition of a distributor had been substituted with another proposed definition on page three, line 41 as stated in paragraph ‘e’ on the A List.

Ms Ngema said the new definition of distributor was made broader and captured all the concerns of the Committee and it included films, games and ‘commercial online distributor’.

Mr Tseli expressed concerns that the new definition did not include social media publications.

Ms Ngema, said that ‘commercial online distributor’ incorporated social media publications.

Ms Van Damme agreed with Mr Tseli’s concerns that the definition should be explicit but expressed concerns that the definition of distributor would incorporate other things if the phrase ‘commercial online distributor’ was included in the definition.

Mr Tseli agreed that the definition of distributor could be broadened to incorporate other forms of internet publications.

Ms Tolashe observed that the Committee had earlier deliberated and agreed that definition of distributor would be broadened to include other forms of internet publication.

The Chairperson said it will be noted and the Committee will deal with the issues later.

Mr Tseli said Ms Ngema was taking time to read the changes on each clause and explain the reasons why and suggested that the Committee changed the approach. He proposed that the Committee assumed that Members had read the documents given and requested that Members state concerns and issues to engage on.

The Chairperson said the approach was slower, but it allowed Members to internalise the process. He suggested that the process should continue but the meeting would stop at 13h00 due to other prior engagements. The Committee would deal with what could be done during the meeting and engage on issues during the time earlier allotted.

Ms Van Damme asked if Members had room to give inputs later.

Mr M Ndlozi (EFF) said the A List had to be approved before it was incorporated into the Films and Publications Amendment Bill and then the final draft would be presented to Parliament. He suggested that Members engage on the A list during the meeting so that the Committee would not repeat the process. Further engagement would continue after the A list has been incorporated into the Bill.

Mr Kalako (ANC) said the A list was a product of the Committee’s deliberations. He however remarked that incorporation of the A list into the Bill did not mean that the Committee had adopted it.

Mr Ndlozi said the Committee needed to engage when the A list had been incorporated into the Bill as proposed. However he stated that he could see the danger of incorporating the A list into the Bill without adoption by Members and suggested that Members state concerns that could be accommodated during the meeting.

Ms Tolashe said Members should give Ms Ngema and her team the opportunity to articulate to ensure the Committee did not return to what was earlier proposed.

Mr Tseli suggested that Ms Ngema should present a document that incorporated the changes in the A list into the proposed Bill (B37 of 2015) to the Committee before its next meeting.

Ms P Ngema said the changes could be incorporated into the proposed Bill, but Members had to be part of the process. Also the incorporation had cost implications as Creda had to print the proposed Bill with the incorporated changes.

Mr Ndlozi corrected the impression that he wanted any process to be skipped. It should be assumed that Members had read the documents and Members should be allowed to raise concerns during the meeting.

The Chairperson agreed with the proposal.

Mr Ndlozi asked the Chairperson to clarify that the purpose of the exercise was to check if the A list captured the outcome of earlier deliberations.

The Chairperson agreed that the purpose was to check if the A list reflected what had been raised in earlier meetings.

Ms Van Damme said although she was not present at the earlier meeting, she assumed that the changes were suggestions not what the Committee had decided. Hence, she proposed that the changes in the A list be incorporated into the proposed Bill without considering the process of printing by Creda. This proposal would ensure that the Committee did a thorough process even though the draft would need to go through Creda again for printing.

The Chairperson suggested that Ms Ngema continued and Members could raise concerns after each change on a clause had been read.

Ms Van Damme asked if Members could deliberate after the document that incorporated the changes in the A list had been printed.

The Chairperson accepted that Members could deliberate and engage on issues when the changes in the A list had been incorporated into the proposed Bill.

Ms Ngema continued and said the major changes on pages one to four was definitions on child pornography.

Ms Van Damme asked for clarity on the definition of commercial online distributor. The definition was broad because it included the phrase ‘commercial purposes using the internet’. She asked why the legal services of Parliament had not limited the definition of commercial online distributor to businesses that distributed films, games and publications only.

Ms Tolashe said the Committee had earlier deliberated on why the definition needed to be broadened to include the phrase ‘commercial purposes using the internet’ and Ms Ngema had given the reasons. However she asked Ms Van Damme to state her reasons why the phrase should not accompany the definition.

Ms Van Damme stated that it should be specific to ensure that the Films and Publications Board did not go above its mandate of dealing only with films and publications.

The Chairperson said the Committee had agreed earlier to broaden the definition of commercial online distributor and include the phrase ‘commercial purposes using the internet’. The secretariat should note Ms Van Damme’s concern and revisit it when the Committee wanted to adopt the Bill.

Ms Van Damme stated that Members could debate on each clause as much as it wanted because she was not mandated to accept legal services explanation. It should be noted that the Democratic Alliance did not accept the insertion of the phrase ‘commercial purposes using the internet’ in the definition of commercial online distributor.

Mrs C Dudley (ACDP) expressed concerns on the addition of the definition of hate speech after the definition of ‘game’ on page three. It did not make sense to insert the definition of hate speech when it would be addressed by the Hate Speech Bill. She advised the Committee not to pre-empt the outcome of the Hate Speech Bill.

Ms Van Damme said it would be better for the Committee to wait for the discussions on the Hate Speech Bill and Cybercrimes Bill to be completed before it dealt with the changes in the proposed Films and Publications Amendment Bill.

Mr Sandile Nene Advisor to the Minister, DOC, accepted that both Bills had not yet being approved by Parliament. The changes in the proposed Films and Publications Amendment Bill on hate speech would be addressed after the Hate Speech Bill had been approved by Parliament.

Mr Ndlozi said that since the intention of the proposed Bill was to provide classification for films and publications, the Committee should consider a Bill that supersedes the proposed Films and Publications Amendment Bill before making a decision. Based on the regulation of publications, an amendment to the Cybercrimes Bill would be preferential to legislation on films and publications hence. The Committee should wait for the adoption of the Cybercrimes Bill before it addressed the issues.

Ms Ngema said in law there was a principle that allowed the law that deals with a specific portfolio to supersede any other law. This definition addresses hate speech that could arise from internet publication and as defined in this provision it is linked to Section 16(2) of the Constitution. However no contradiction existed because the definition in the A list is confined to hate speech on the internet for films and publications that is published electronically. The timeframe for adopting the Cybercrimes Bill is not yet known. Hence, the proposed Films and Publications Amendment Bill should not be delayed because of another Bill that has not yet been adopted.

Adv Mongameli Kweta, State Law Adviser, Department of Justice and Constitutional Development (DJCD) stated that a party could not be charged twice for the same offence. A party could only be charged on the Films and Publications Act or the Cybercrimes Act.

Ms Van Damme said criminal charges were dealt with by the South African Police Services (SAPS) and the courts while the Films and Publications Board did not have the mandate. The Committee should not be in a rush to pass the proposed Bill.

Mr Ndlozi said he supported the proposal by some Members not to wait for the adoption of the Cybercrimes Act before proceeding with the process of amending the Bill but expressed concerns that Ms Ngema did not quote what Section 16 (2) stated. He suggested that the PLA either left out Section 16(2) in the A List or quote it incorrectly. The definition of hate speech should be more specific, because the definition captured in A List was too broad.

The Chairperson resolved that the Committee would not wait for the Cybercrimes Bill to be adopted but the A list would reflect changes that did not specify Section 16(2) but a definition of hate speech as captured by the Constitution.

Ms V Van Dyk (DA) supported Mr Ndlozi’s proposal that all references to hate speech should follow what the Constitution stipulated.

Ms Ngema said the wording on Section 16(2) was a restriction on Section 16(1). The inserted definition specified what ‘hate speech’ was. Hence the definition of ‘hate speech’ was formulated in this way because the proposed Films and Publications Amendment Bill could not be restricted.

Mr Ndlozi said Section 16(2) did not speak about hate speech. Hate speech can be deciphered from different things depending on how actions are interpreted. However, he stated that his statement was directed at Members to clarify what hate speech was and not a disagreement.

Ms Van Damme reminded the Committee that there was legislation adopted by Parliament that was specifically on hate speech - the Promotion of Equality and Prevention of Unfair Discrimination Act. She suggested that legal services remove Section 16(2) from the A List and insert the portion of the legislation adopted by Parliament that dealt specifically with hate speech before incorporating the changes in the A list on the proposed Bill.

The Chairperson proposed that the Committee needed to go back and examine the legislation on hate speech.

Mr Kalako said the Committee had to do a thorough job because when the decision was taken the Committee had been presented with different examples of hate speech.

Mr Collin Mashile Chief Director: Broadcasting Policy, DOC stated that when the definition of hate speech in the A list was been drafted, the Department had consulted with DJCD and it did not have any conflicts with the definition.

Ms Tolashe said prolonging discussions on the proposed amendment Bill because the Committee needed to wait for the adoption of another Bill was unrealistic. Members should also have an attitude that a timeframe was needed to complete the process. Since the Committee had embarked on the process of amending the proposed Films and Publications Amendment Bill (B37 of 2015) it needed to finish the process.

Mr Ndlozi stated that he appreciated that the process had been started and work had been done earlier on the process of amending the Bill. However, if new insights had been received it needed to be considered and Members need not give up or be impatient with each other. He proposed that if a section should be quoted, it should be Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act which deals with the ‘prohibition of hate speech’. He agreed with the Chairpersons’ proposal continue with the process and see what could be done in the meeting and continue later.

The Chairperson remarked that the Committee would stop and look at another time to properly deliberate on the proposed Films and Publications Amendment Bill. The Committee would make a request to Parliament for another meeting that would probably take the whole day.

Mr Tseli agreed that the process of amending the Bill was long overdue but remarked that the Committee could not afford to cut corners and come up with a sub-standard product. He suggested that Members that had any issues on any clause should forward it to the secretariat to ensure that it was addressed before the next meeting. The concerns would then be forwarded to legal services.

The Chairperson remarked that the next time the Committee met on the proposed amendment it would address the concerns.

Ms Van Damme supported Mr Tseli’s proposal.

The Chairperson resolved that concerns and issues should be directed to the Chairperson’s office and it would be forwarded to legal services to address. He remarked that he would communicate with Members on the date to deliberate on the Committee’s program.

The meeting was adjourned.