Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
1 June 2012

Trying to censor the internet is neither legal nor rational

The Films and Publications Board (FPB) announced this morning that a panel of its classifiers has classified The Spear (as well as “images and/or replicas” of it), in terms of the Film and Publications Act and gave it a rating of 16N. The Spear, for those readers who have been on a journey into space the past two weeks, is an artwork depicting a person resembling Vladimir Lenin but sort of also resembling President Jacob Zuma with his genitals hanging out in an un-aroused state. In a press statement the FPB warned that “any persons or entities wishing to publish and exhibit images and/or replicas of this specific artwork will in future have to put in place mechanisms to regulate access to this piece of art by members of the public below the age of 16.”

Several legal questions arise regarding this classification. I will deal with them one by one.

First, is the FPB legally entitled to classify a work of art? The short answer is a surprising yes. Section 16(4)(d) of the Act states that the FPB can classify any publication that contains material which may be “disturbing or harmful to or age-inappropriate for children by the imposition of appropriate age-restrictions and such other conditions as may be necessary to protect children in the relevant age categories from exposure to such materials”. A publication is broadly defined to include “any drawing, picture, illustration or painting”.

Second, what happens if — as in this case — the bizarre situation has arisen that the original drawing or painting was destroyed but copies of the painting have been widely disseminated on the internet inside South Africa and across the rest of the world? The Act seems to make a distinction between child pornography and other images published on the internet but on the latter the Act is rather vague and muddled.

Amendments made to section 16 of the Act, currently being challenged as unconstitutional, inserted a provision that includes “any message or communication, including a visual presentation, placed on any distributed network including, but not confined to, the Internet” as publications that can be scrutinised by the FPB.

Furthermore, section 24A(5) of the Act states that a person who “knowingly distributes a film, game or publication which has been classified by the Board” without “displaying, clearly and conspicuously” the N16 classification imposed on the publication will be guilty of a criminal offence and could be imprisoned for up to six months. Distributing copies of a work of art not only happens when one sells or hires it out, but it also includes when one hands or exhibits a publication to a person under the age of 18 years, “and also the failure to take reasonable steps to prevent access thereto by such a person”. The question is whether, in terms of the Act, one distributes an image when one publishes it on the internet and if so what reasonable steps would be required to prevent access to people who are supposedly protected by a specific age-appropriate classification.

The Act is at best confusing and contradictory. While the new definition regarding internet based publication was added in 2009, other parts of the Act were not amended. Instead the Act – another brilliant piece of drafting by the government lawyers! — in several provisions seems to assume that publications will only include printed publications. Thus section 18A of the Act states that when a publication is classified with an age restriction this classification (like N16) must be displayed “either on the front of the cover or on the wrapper of the publication”. The Regulations are also of little help as it includes similar language suggesting that the rules only apply to printed publications. No criteria are set out in the Act for the reasonable steps to be taken when an image available on the internet has been classified. Would it require a mechanism to block access entirely for those younger than the imposed age restriction (and how would one do that without blocking adults from viewing the site) or only to publish a warning? This is not made clear in the Act.

It seems to me that the Act is at best unworkable and at worst so filled with contradictions that it would have to be interpreted in accordance with s 39 of the Constitution to apply as narrowly as possible to internet images. There are several, what appears to be, insurmountable practical difficulties with the classification of internet images.

Interpreting the Films and Publications Act as applying to all images available on the internet would lead to bizarre and unintended consequences. One of the rules of legal interpretation is that one should assume that the legislature was rational when it passed the legislation and, if possible, should not interpret the provisions of an Act in such a way that it would lead to absurdities. Interpreting the Act as applying to all images published on the internet and available in South Africa would obviously lead to such absurdities. The internet is a rather democratic and unregulated space.

There are literally billions of sexually explicit images available on the internet, some of them published in South Africa and some outside the country. If everyone who “distributes” these images to South Africans were compelled to request the FPB to classify these images or at best to put in place mechanisms to prevent people younger than 18 of seeing these images after classification, it would require all websites available in South Africa to put in place technological expensive mechanisms to block internet access to some. This is impossible. How does one compel Wikipedia to censor its entire dictionary, allowing adults to see nude images but not people younger than 18 or 16? I thought that was the parents duty.

It would also be impossible to police age restrictions on the internet as internet images are published on Facebook pages, on Blogs and on a myriad of other websites across the world. I would argue that when interpreting legislation a court will always assume that the legislature did not intend to pass a law that is completely unenforceable and hence of mere symbolic value (albeit symbolism completely out of place in an open and democratic society). That is why — in the absence of clear instructions to the contrary – I would think the Act cannot be interpreted as including all sexual images published on the internet. If it did, I suspect some of the provisions of the Act would be declared unconstitutional because of irrationality and because of placing unjustifiable limitations on the right of freedom of expression and access to information — at least of adults.

The legislature, so it seems to me, was aware of the impossibility of imposing this limited censorship (linked to age restrictions) on images on the internet. That is why the Films and Publications Act includes a sections in the Act explicitly dealing with internet providers (who, after all, are the one’s ultimately who ensure the “distribution” of the images on the internet).

Given that it would be absurd to require the classification of all images of a sexual nature that are published on the internet, but knowing also that child pornography is distributed on the internet, the legislature inserted section 27A into the Act. This section requires internet service providers to register with the FPB. They are also required to “take all reasonable steps to prevent the use of their services for the hosting or distribution of child pornography”. If an Internet service provider has knowledge that its services are being used for the hosting or distribution of child pornography, such Internet service provider has a legal duty to take all reasonable steps to prevent access to the child pornography by any person and report the matter to the police. The same obligations are not imposed on internet providers — who play an integral role in the “distribution” of sexually explicit images on the internet — concerning so called age inappropriate sexual images. The reason for this, I would contend, is that the legislature understood that it would lead to absurd results if the internet images were all included in the ambit of the FPB work. In effect it passed what it knew to be symbolic amendments that could never be enforced, acting irrational in the process.

There is one more question to be answered, namely whether it was legally appropriate to impose an N16 classification on the work of art (or at least the copies of it). As I noted above, section 16(4)(d) allows age classifications of “publications” if the publication contains material “which may be disturbing or harmful to or age-inappropriate for children” in line with guidelines contained in the Regulations.

The Regulations state that classification decisions must be based on the impact of the classifiable elements within the context of the film, game or publication being examined. The more intense and frequent a classifiable element, the more likely that the material will be given a higher age rating. However, classification decisions are not based on individual classifiable elements only but on the cumulative impact of classifiable elements within the context of the theme or story-line of the material being examined. Context is therefore all important. Whether a “publication” is a work of art or whether it is a cartoon aimed at youngsters and whether the exhibition contained a myriad nude images or only one would be decisive.

The Act (and the subsequent Regulations) do not provide any firm guidelines for the imposition of age restrictions of publications like works of art. The Regulations dealing with the classifications of works of art (something that is not a film or a computer game) are rather vague. It contains criteria for the classification of publications based on whether it is hard pornography or whether people younger than 18 should be protected from it. However it then proceeds to state that: “A publication containing material that poses a reasonable risk of harm to children will be classified by the imposition of appropriate conditions to its distribution or exhibition to protect children.” This is the only provision potentially covering the classification of a work of art as N16. There are no guidelines provided on whether images of sexual organs in works of art would require the age classification of such works.

However, the Regulations contain guidelines for the classification of films and imposing age restrictions on the basis that it depicts nudity (the category used here), which might give some indication of what was intended by those who drafted these Regulations. It states that the FPB will classify a film as inappropriate for anyone younger than 16 on the basis of a film depicting nudity if the material contains “instances of moderate impact nudity and should be justified by the context”. Nudity is defined as “the deliberate flaunting of a person’s sexuality or the undue exposure of intimate parts is a classifiable element and must be considered in the allocation of an appropriate age-restriction based on the impact”. It is not clear what is meant by the deliberate flaunting of sexuality. But, as with a determination regarding “and undue exposure of intimate parts”, the context in which the nudity occurs (a work of art or an internet discussion on censorship, say) and its impact on viewers (given this context) must be considered. Obviously, the context includes that nudity would be contained in a work of art and/or that the image was reproduced for prurient (as the pornography police likes to call it) purposes or whether the image was reproduced to illustrate a political point.

(That is also why one universal age restriction could not be imposed on The Spear, as the impact of the nudity should be judged differently depending the context in which it was published. If the image is published on a political website as an illustration of an article engaging seriously with the legal, emotional, racial and political issues surrounding the image, the imposition of an age restriction would not be valid — even in the context of the rather bizarre legal framework created by the Act.)

Extrapolating from films — which will obviously be judged more harshly than works of art — the mere depiction of “intimate parts” (one assumes these would be breasts, genitals and buttocks) would not mandate the imposition of a 16 age restriction. Otherwise many art galleries and exhibitions would have to be declared off limits to people younger than 16.

But as there are no further guidelines as to what might turn an otherwise “acceptable” publication into something that would pose a reasonable risk of harm to children, it is impossible to say what the Regulator intended, providing the classifiers from the FPB an almost unfettered discretion to decide — based on their own moral values and political views — whether to impose an age restriction on a painting. I would contend that if challenged, the Constitutional Court will find that because there are no criteria provided to guide the exercise of the legislative discretion by classifiers, this provision is null and void due to vagueness. Our Court has often found that where power is delegated to officials, clear guidelines should be provided by the legislature (or the Minister) to prevent the arbitrary exercise of power. The potential arbitrary exercise of power by officials offends the Rule of Law, thus this Regulation is almost certain to be declared invalid.

However, I would contend that even if the Regulation is not unconstitutional, and even if the FPB does have the power to classify all internet images, the N16 classification in this case legally wrong and will be overturned on appeal. Judging from the other provisions in the Act as well as the Regulations, an age restriction of 16 is not to be imposed merely because genitals are depicted. It should only be imposed if the depiction is likely to have some harmful impact on 16 year old children who, one would assume, will not be treated as if they are devoid of any agency and any ability to distinguish between reality and art (as this would infringe on their human dignity).

Moreover, context is all important and the fact that this is a work of art should weigh heavily. If it was legally valid to slap a 16 age restriction on this image it would also require the FPB to slap a 16 age restrictions on reproductions of the statue of David and tourists who visit Florence would not be able to send postcards with representations of David back to South Africa for fear of breaking the law and harming poor children who — at 16 – apparently would be scarred for life if they saw a painting of a penis. Reproductions of the Sistine Chapel in the Vatican (those postcard again) would also have to be restricted to people older than 16.

The Act does not provide for the classification of a publication as restricted to viewing by people younger than 16 because it offends people. The fact that the painting is said to depict our President is legally therefore irrelevant. Whether the painting is of the President or of Tony Leon, whether it is of a man called David who lived 400 years ago or a man called Jacob who is fighting for his political life is therefore completely beside the point for the purpose of applying the Act – something the classifiers of the FPB conceded during oral hearings. Whatever one might think of the painting and how offended and hurt one might be by it, the Film and Publications Act simply does not provide for internet-based copies of it to be classified in the way it has been.

PS: This is a reworked version of an article which appeared earlier today. After doing further research (and after being provided with helpful suggestions from a reader) I have slightly amended my views on the reach and scope of the Film and Publications Act on internet images. I apologise for what I consider the less than accurate statements contained in the previous version.

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