Waghied Misbach

Waghied Misbach

On the first day of public hearings into a controversial new censorship law yesterday, media groups took the fight for press freedom to MPs in parliament.

Newspaper editors and media owners told members of parliament's home affairs watchdog committee that the Film and Publications Bill was unconstitutional because it would curb freedom of expression and interfere with the independence of the media.

The high-powered delegation included representatives of all media groups in the country.

The main objection to the Bill is the removal of an exemption that allows the media, both print and electronic, to be free from the provisions of the current Film and Publications Act.

With no exemptions, editors will have to seek permission from the chief censorship body, the Film and Publications Board (FPB), to publish or broadcast .

The draft law proposes that journalists submit to the FPB all material related to "sexual conduct, propaganda for war, incitement to imminent violence, or the advocacy of hatred based on any identifiable group characteristic".

The chairman of the home affairs portfolio committee, Patrick Chauke, argued that one of the main purposes of the Bill was to protect young and impressionable children from pornography and to curb the increase in child pornography.

He said this type of material had become widespread in the media, particularly on cellphones and on the Internet.

However, members of the South African National Editors Forum (Sanef) said the law went too far and its definitions were too wide.

A number of problems with the law were raised in an oral submission by Sanef chairman Ferial Haffajee, editor of the Mail & Guardian, and council member Mathatha Tsedu, editor of City Press. Tsedu is also chairman of the African Editors Forum.

Haffajee asked MPs to imagine waking up with no news from the previous day.

"No news about May Day marches and protests. No news of the wars in Afghanistan and the bombs in Iraq. Imagine that you should have woken up last month to no news of the sad end of Sheldean Human.

"No news of the scourge of baby rape that has come to our attentions in this province. No news of the unfolding drama of Dina Rodriguez. No news about that song De la Rey. Or even about that other song Umshini Wami."

She said this would be the effect of the new law because all reporting on these events or subjects would have had to have been sent to the FPB for prepublication classification.

This, Haffajee said, would severely disrupt news gathering.

Shokie Bopape-Dlomo, the chief executive officer of the FPB, responded by saying she did not know what the "hullabaloo" was all about because all reports would be taken "in context".

She said there was a need for a balance between the rights of the media and the public.

However, Bopape-Dlomo admitted there were "a lot of problems with governance because the law is not clear".

But citing the example of Rwanda, where war was propagated through the media, she said it should never be argued this could not happen in South Africa.

Haffajee said that the exemption under the old Act was part of the media's "contract with society" and that self-regulation was the best way forward.

This self-regulation came in the form of citizens having the power to complain to the press ombudsman and the Broadcasting Complaints Commission.

In addition, the public could launch defamation actions against the media if they felt aggrieved.

However, the media was doing more. Sanef, with Print Media South Africa, was "significantly overhauling" the office of the press ombudsman and introducing a press council to make the self-regulatory systems "more muscular and robust".

She said the new law went beyond the protections and definitions of the constitution.

"It is our submission that the current law, perhaps well-intentioned, will have unintended consequences. It will have a profoundly chilling effect on the media," Haffajee said.

Tsedu said that in the 1980s, when strict regulations governed reporting unrest, journalists used to get around the bans on reporting the activities of soldiers by describing them as "men dressed in brown uniforms carrying firearms". He said journalists did not want to go back to that era.

In his submission, Raymond Louw, of the Media Institute of Southern Africa, said there was also the possibility of media harassment, where every edition or broadcast could be questioned.

He argued the new law could make spies out of "innocent bystanders" because it created a new offence by requiring anyone who knew of, suspected, or had reason to suspect, the commission of an offence, to submit to the police a full report.

This violated the constitution and the general principle in criminal law which required a "sufficient causal nexus between an act and a socially repugnant consequence," argued Louw.

The more "dangerous" implication of this part of the new law was that it would force journalists to reveal confidential sources of information which would undermine their ability to gather news, and also deter sources from confiding in journalists for fear of being exposed.

However, the media owners did concede that mistakes had been made in the past.

This was when Chauke raised the issue of the publication of pictures in Daily Voice, a Cape Town newspaper, of girls who had been drugged and raped.

Operations director of Independent Newspapers, Nazeem Howa, said the intention of the article was to highlight an "evil" on the Cape Flats, but admitted the publication had gone too far.

As a result, the paper had apologised to its readers and launched a legal training programme and a broader and "tougher" code of conduct for its journalists.

Howa said that much like government not wanting to be compared to the censors under apartheid, media houses also did not want to be compared to the purveyors of child pornography.

l See pages 14 and 15