Films and Publications Amendment Bill: deliberations

Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
3 February 2004
FILMS AND PUBLICATIONS AMENDMENT BILL: DELIBERATIONS

Chairperson: Mr H Chauke (ANC)

Relevant Documents:
Films and Publications Amendment Bill [B61-2003]
Summary of Submissions on Films and Publications Bill Amendment
Department's Further Proposals to the Films and Publications Amendment Bill

SUMMARY
The Committee discussed the public submissions and looked at new amendments proposed by the Department. The submissions had been mainly concerned with the issue of communication service providers unknowingly distributing child pornography. To rectify this, the word 'knowingly' has been inserted into Section 15 to address this concern.

The new amendments also focus on the creation of the position of chairperson of the Board as appointed by the Minister. The Committee made certain changes to these proposals as they were concerned that the clause "During the absence of the Chairperson, an Acting Chairperson shall be appointed by the Minister" would delay the work of the Board.

Discussion also included the sentencing of child pornography crimes, the issue of warrants, the registration of internet service providers. Clauses 12 and 13 and Schedule 3 were flagged for further discussion.

MINUTES
The Chair indicated that as there was no quorum, the Committee would deliberate on the public submissions and the Bill but that they would not vote. Advocate R Malatji (Chief Director: Legal Services) was asked to give the Committee an update report on what the Department of Home Affairs had done regarding the tasks assigned to them by the Committee since the final meeting in 2003.

Advocate R Malatji (Chief Director: Legal Services) said that the Department had flagged the concerns from the public hearings especially regarding the Internet Service Providers (ISPs). Meetings were held with the stakeholders after the public hearings with the last meeting being held on 13 January 2004. All the concerns had been addressed. The Internet Service Providers Association (ISPA) was satisfied ultimately by the insertion of the word "knowingly" in Section 27(4). This was in reference to the concerns raised by most of the service providers that they only conveyed messages and they did not have control over the content of those messages. The changes made sure that the Bill only referred to those who were guilty of an offence and did not criminalise everyone as initially it had done.

He continued that the Department was also tabling further proposals in relation to the composition of the Board with its chairperson being a non-executive member of the Board.

The Chair commented that he hoped the new proposals had been tested and put through the correct process. He asked the Department to brief them on the proposed amendments.

Proposed Amendments to the Films and Publications Amendment Bill
Advocate S Mogotsi (Director: Legal Services) proposed that Section 4 (1) of the Principal Act be amended to make provision for a chairperson and to separate the Board from the Chief Executive Officer (CEO).

The Chair asked why the Board had to have a chairperson. If the chairperson was not available the Board would have to wait for the Minister to appoint a new chairperson. Why was the Board not able to appoint a chairperson.

Adv. Malatji explained that the CEO was an employee whereas the chairperson should be a non executive member.

The Chair questioned why one of the members of the Board could not be the acting chairperson because it could possibly take six months for the Minister to make a new appointment. He questioned why the appointment of an acting chairperson had to be centralised.

Adv. Malatji explained that the appointment by the Minister was not the same as filling a vacant position. He added that it would not necessarily take a long time. It would take a simple letter or announcement to inform the candidate.

Mr W Sikakane (ANC) commented that he understood that Section 4(2)[" During the absence of the Chairperson, an Acting Chairperson shall be appointed by the Minister"] was not referring to the absence of the chairperson at a particular board meeting so the issue of the Minister taking a long time was not relevant.

Mr M Lekgoro (ANC) asked why the task was not delegated to the Deputy Minister in the legislation. In the absence of the Minster the Deputy Minister could act. If the chairperson were absent, the Board could appoint a chairperson for that meeting. The Minister should appoint but the chairperson could be absent.

Ms M Maunye (ANC) agreed that in the absence of a chairperson at a meeting, the Board could elect a person amongst themselves to stand in. The Minister should appoint the chairperson.

The Chair said that in Clause 4(1)(a) it was fine for the chairperson to be a non executive member. He pointed out that the clause did not address what would happen in the absence of a chairperson. As currently drafted, the Board could not meet until a chairperson was elected. The clause put emphasis on one person - ignoring the work the Board must do. It seemed that all issues had to wait until the appointment was made. Again it was a problem of centralising power to one person - which would hinder the work of the Board.

Adv. Malatji understood the concerns. The Department would look into making provisions for a deputy chairperson. In the absence of the chairperson, the deputy chairperson would assume the role.

Mr Skhosana (ANC) agreed. He asked what was the length of the appointment.

Adv. Malatji replied that at most the position could be held for five years. This was according to regulations.

The Chair asked why details of the person appointed would be regulated and not legislated. The concept of a chairperson touched on issues of accountability. A more concrete Bill was needed. The position should be legislated.

Ms Maunye asked what the meaning of a non-executive member.

Adv. Malatji replied that the position was not necessarily on a full time basis.

Ms Maunye asked if the position had to account to the Board.

The Chair pointed out that not legislating touched on the issue of accountability because the Board could not count on good relations.

Adv. Mogotsi asked the Committee if they wanted one non executive member on the Board or more non executive members. More balance was needed because the chairperson was the only non executive member.

The Chair indicated that the absence of the chairperson was the issue being debated. There was an issue of time regarding how long the Minister would take to make an appointment or acting appointment.

Advocate Otto Kellner (State Legal Advisor) drew attention to the existing situation. Although the Principal Act mentioned many things, the Act was silent on the issue of the chairperson. The Committee had to decide if they wanted an additional person from outside to be chairperson or if the Board could appoint someone for that particular meeting.

In answer to The Chair pointing out that Section 6(1) said that the appointment was made by the President, Adv. Mogotsi explained that there was an amendment to that which gave these powers to the Minister. The section now referred to the Minister.

The Chair clarified that the four board members - that is the chairperson and three members referred to in the Bill - would constitute the quorum. He pointed out that the four would not be able to function if one of them was not there.

Mr Skhosana pointed out that the appointment of the chairperson was as a non executive member and if the Board were to appoint the position amongst themselves there would be a constant swop between non executive and executive. The route to be taken was to deputise then both positions would be non executive.

The Chair noted that Mr Skhosana's proposal would fall under Section 3. The Minister would appoint a chairperson and a deputy chairperson.

Adv. Kellner confirmed that the chairperson, the deputy chairperson and the four persons would then constitute the quorum.

The Chair asked what impact would it have on the arrangement as it stood.

Adv. Mogotsi replied that the Department would check and consult with the state law advisors. Adv. Malatji added that it was just an addition therefore the impact would not be huge.

The Chair said that there was still time to deal with the proposal to have a deputy chairperson who would report to the Minister. He asked about the amendments to Section 14.

Adv. Malatji explained that the creation of the position of the chairperson mean that the other clauses had to adhere.

The Chair pointed out a grammatical error, that there was a difference between chairpersons and chairperson. He asked about Section 15.

Adv. Malatji explained that the chairperson had to consult and Section 15 dealt with that. The final amendment in Section 15 dealt with the insertion of the word 'knowingly' for ISPs.

With reference to Clause 9 in the Bill dealing with ''Registration and other obligations of Internet service providers" and the insertion of 'knowingly', Mr M Walters asked who else the Department had met with besides the ISPs. What happened with the Independent Communications Authority of South Africa (ICASA) and the National Broadcasting Association (NAB)? What issues had been raised in the meeting?

Mr Mogotsi said that they had met with Telkom whose concern was also on the issue of 'knowingly'. Telkom was satisfied that the proposed amendment clarified this concern.

Mr Walters repeated that he wanted to hear about ICASA and NAB and Mr Mogotsi explained that all the stakeholders had been invited.

The Chair confirmed that the main concern was the issue of 'knowingly'.

Prince N Zulu (IFP) asked if the amendment 'knowingly' closed all the loopholes.

Adv. Malatji confirmed that the amendment did. The aim was not to criminalise innocent people.

Mr Walters had a concern about the policing of the Bill. He asked about Clause 27(2) and the issue of a warrant which NAB raised.

The Chair said that that issue would be flagged for discussion at a later time.

Summary of Submissions on Films and Publications Bill Amendment
Mr Johan Vermeulen (Committee Secretary) read out a summary of the submissions. The submissions mainly challenged the issue of unknowingly distributing child pornography as service providers.

Discussion
The Chair asked if the ISPs submission was dealing with Section 27A.

Adv. Malatji confirmed that they were concerned with the issue of being criminalized unknowingly. The issue had been dealt with in the proposed amendments.

Mr Walters asked if 'knowingly' addressed Point 2 of the ISP submission, which discussed the liability of ISPs and the Electronic Communications and Transactions (ECT) Act.

Adv. Malatji pointed out that there was nothing to be said about possession because if you were in possession you were in possession and in the know.

Adv. Kellner clarified that the ECT Act did not cover any person in possession. The Bill went further than just computers thus it should stay.

The Chair asked for complete clarity on whether the ECT Act only dealt with computers. Adv. Kellner confirmed this.

The Chair commented that the concerns of IPSA had been adequately dealt with. The issue of exemptions, would be discussed later. MTN's concerns had been dealt with by the insertion of "knowingly".

Adv. Kellner raised a concern over the definition of Internet Service Provider (ISP). He said that the Committee should consider defining an ISP as any person carrying on the business of Internet provision. The Bill's current definition meant that if a person lent a computer to a friend it meant that they were providing and Internet service. It should read to mean an ISP business for gain and not those who lent their computers.

The Chair agreed to the proposal and asked the State law advisors to make the necessary changes. He then referred to the submission of Cell C and asked if the legislation mentioned in the submission covered the same issue.

Adv. Malatji confirmed that the legislation mentioned did not cover the same issues.

The Chair noted that the issues that Vodacom raised had been dealt with as the insertion of 'knowingly' covered their concerns. He asked for information on the issue ICASA had raised about the conduct of broadcasters.

Adv. Malatji replied that at the public hearings, ICASA claimed that their code of conduct covered broadcasters in what the Bill was trying to achieve. However ICASA was not doing the job that the Film and Publications Board (FPB) was doing. The ICASA code of conduct did not prevent possession or distribution of child pornography. The Bill was coming up with something else.

The Chair commented that ICASA wanted to have the sole responsibility for broadcasting. ICASA regulated the service. It was a clear argument. The issue was dealt with. He asked about the Freedom of Expression Institute (FXI) submission and its concern of the Bill's infringement on the right of freedom of expression.

Adv. Kellner replied that child pornography was so awful that any infringement on a right could be justified in terms of the Constitution.

The Chair introduced the submission from Standing to Oppose Pornography (STOP) which wanted to broaden the scope of the Bill. However as the Committee was advocating for a total ban of child pornography so their issues were taken care of. He wondered if steps should be built in to rehabilitate a perpetrator or was that the problem of Correctional Services. Should the Committee create a rehabilitation service?

Mr Walters supported STOP's proposal to establish a phone line. He pointed out that the Deputy Minister had wanted to establish a phone line and was looking into the issue. He also supported a sin tax on pornography, as is the case with cigarettes and alcohol.

The Chair asked about NAB's submission. Was there anything to add or challenge.

Mr Sikakane asked for clarity on whether the Committee was moving towards a total ban on child pornography or only putting in measures to protect the children.

The Chair clarified that they were legislating a total ban on child pornography. There was the issue of exemptions. Although exemptions had yet to be discussed the Committee was working on a total ban of child pornography.

Mr Walters asked for clarity on NAB's concern regarding Schedule 10, which dealt with XX material. He asked what was being covered in Schedule 10.

The Chair answered that it was just in relation to child pornography.

Mr Walters pointed out that Schedule 10 did not specify child pornography.

Adv. Kellner pointed out that the word 'advocates' was the issue. Adv. Malatji added that for example it was obvious that a Nazi movie 'advocates' the killing of Jews which is racial hatred.

The Chair asked if the amendment was not too broad or perhaps not specific to child pornography.

Adv. Malatji replied that the main purpose of the amendment Bill was to provide for the prohibition of child pornography.

The Chair said that the Committee was working on a total ban of child pornography. There would be no exemptions.

Clause by clause deliberations on the Bill
Long title
Mr Waters referred to the phrase 'to provide registration for ISPs' and pointed out that ICASA already had a register.

Adv. Malatji explained that there were two different Acts serving two different purposes. ICASA and the Film and Publications Board had two different purposes. ICASA had a register for their own purposes. Registration for this Act was useful.

Clause 1
Mr Walters questioned the amendment in Clause 1(a)(iii): "showing or describing the body, or parts of the body, of such a person in a manner or in circumstances which, within context, amounts to sexual exploitation, or in such a manner that it is capable of being used for the purposes of sexual exploitation;''

He gave the example of a parent taking a photograph of a child in the bath. Someone else could use it. He felt that the clause was too broad. If the photograph was used incorrectly or the purpose changed then that would be a crime and not the act of taking the picture, which was currently criminalised.

The Chair explained that 'knowingly' would then kick in because the Bill refers to the purpose.

Adv. Malatji also pointed out that the clause had the phrase 'within context'.

The Chair agreed that it was the motive behind it. The Bill was clear to parents and society that child pornography would not be tolerated.

The Committee agreed with Adv. Kellner's earlier proposal to add 'business for gain" in Clause 1(d).

Clauses 2 to 7

These were agreed upon by the Committee.

Clause 8
Mr Walters reminded the Chair about the issue of the warrant in Clause 8 amending Section 27(2). He proposed that the Bill should include having to obtain a warrant because the Bill was silent on the issue.

The Chair pointed out that Section 27(2)(a) and (b) dealt with the issue.

Adv. Malatji confirmed that the police could not do anything without a letter from the National Director of Public Prosecutions.

Clauses 9 to 11
These were agreed upon by the Committee.

Clause 12

Mr Walters asked why there was a cap on the sentence of 10 years in Clause 12.

Adv. Malatji said that it could be increased.

The Chair asked why ten years was not the minimum sentence.

Adv. Kellner advised the Committee against putting in a minimum sentence but rather put in the maximum sentence to direct the court. The Committee could put in a life sentence if it wanted.

Mr Sikakane felt that the Committee was taking 10 years very lightly.

Ms Maunye agreed that 10 years should be the minimum.

Mr Walters stated that the Committee did not realise what they were dealing with. The raping of children was barbaric. He supported a life sentence and leaving it open.

The Chair said that the issue would be flagged. Perhaps a minimum sentence would reflect the seriousness of the issue.

Clause 13
Mr Walters raised a concern with the amendment to 30(A)(a). If someone had done something in Britain or the US that was not a crime there but a crime in South Africa, was it normal procedure to be able to arrest them in SA?

Mr Sikakane also raised a concern about the issue. What was the thinking behind the amendment? It did not make sense to be charged with something that was not a crime in that country.

Adv. Malatji explained that the thinking behind it had been based on the large amounts of imported child pornography. There was a big international market. One could cross the border and continue to produce the material in another country, which would not address the issue. The clause sent a message that there was no place to hide. It was capturing the trans-nationality of the crime.

The Chair commented on Mr Walters's point that legislation in one country was not the same as another country but a person doing it there could come back and the crime could be addressed here.

Mr K Morwamoche (ANC) asked how prosecution would occur and would they have jurisdiction.

Adv. Malatji explained that there was international law regarding all countries and under those laws prosecution could occur.

The Chair pointed out that the issue had gone before the United Nations and all countries had to address the issue of child pornography. Clear evidence was needed. How would it be dealt with or did 'knowingly' deal with it.

Adv. Kellner gave the example of a man going to Maseru on business and filming children there then importing the child pornography to SA. The police should be able to catch such a man.

The Chair asked how it would be policed.

Adv. Kellner pointed out that if a crime is committed in another country and the perpetrator stayed away from SA, the country could apply for extradition or they can be arrested under the same law.

The Chair flagged the issue because more discussion was needed. When the Committee legislated they had to know what was international law and other Parliamentary Committees had to be in support this. The Safety and Security Committee and the Justice Committee would be consulted.

Schedules
Regarding Schedule 3, it was suggested that the Committee had to look into the freely available pornographic material being sold publicly. Measures needed to be looked at to enforce the Bill. Unless the Committee was dealing with enforcement it would not be effective hence the police should be invited at some stage.

Mr Walters added that the Board was meant to have inspectors. Currently due to under-funding, there were three inspectors for the whole country.

The Chair said that at the meeting, funding must be raised.

Mr Walters said that he was still not satisfied about Schedule 10. He asked if sexual orientation should be added.

The Chair noted the concern. In closing the meeting, he asked the drafters to prepare the final draft of the Bill.