THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CASE NO CCT 113/2011

In the matter between: PRINT MEDIA SOUTH AFRICA SOUTH AFRICAN NATIONAL EDITORS FORUM And MINISTER OF HOME AFFAIRS FILMS AND PUBLICATIONS BOARD First respondent Second respondent First applicant Second applicant

With JUSTICE ALLIANCE OF SOUTH AFRICA SECTION 16 First Amicus Curiae Second Amicus Curiae

SECTION 16s WRITTEN SUBMISSIONS Introduction 1. The Court is required to consider the constitutional validity of sections 16(1), 16(2) and 24A(2)(a) of the Film and Publications Act 65 of 1996,

as amended by the Film and Publications Amendment Act 3 of 2009 (the Act). 2. Importantly the respondents concede that these provisions of the Act limit the right to freedom of expression as enshrined in section 16(1) of the Constitution.1 3. It is trite that once a limitation of a constitutional right has been established, the onus is on the State to demonstrate that such limitation is justifiable in terms of section 36 of the Constitution. Of course, as Justice Yacoob said in Phillips v DPP, WLD:2
[20] The burden placed upon the State is no ordinary onus. The State should place before a Court evidence and argument on which it intends to rely in support of justification. Although absence of this evidence and argument does not necessarily result in invalidity of the challenged provision, it may tip the scales against the State, but in appropriate cases only .3

4. It will be contended that this is in fact such an appropriate case and that, to the extent that necessary evidence is lacking to enable this Court to determine whether the limitation upon the right to freedom of
1

Section 16(1) provides: (1) Everyone has the right to freedom of expression, which includes freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research. 2 2003 (3) SA 345 (CC); 2003 (4) BCLR 357 (CC). 3 Justice Yacoob continued this paragraph with the assertion that: It follows that the absence of evidence and argument from the State does not exempt the Court from the obligation to conduct the justification analysis and to apply what was described by Somyalo AJ as 'the primary criteria enumerated in s 36 of the Constitution.'

expression is justifiable, the ineluctable consequence is a finding that it is not. This is particularly so when the right that has been limited is so foundational to an open and democratic society that the party seeking to justify its limitation accepts, to quote from the respondents heads of argument, that:
[I]t probably is no exaggeration to say that democracy cannot survive in the absence of [such right, i.e.] freedom of expression and that consequently in a democratic society a system of prior restraint based on executive approval will operate as a greater deterrent to freedom of expression and will cause damage to fundamental democratic rights.4

5. Ultimately in applying the proportionality assessment required by section 36(1) of the Constitution which entails a determination of the proportionality between the extent of the limitation of the right considering the nature and importance of the infringed right, on the one hand, and the purpose, importance and effect of the infringing provision, taking into account the availability of less restrictive means available to achieve that purpose5 it will be contended that such assessment yields the conclusion that the infringing provisions cannot be saved by the limitations clause.6

4 5

Respondents heads of argument par 13.2. S v Manamela and Another (Director-General of Justice Intervening) 2000 (3) SA 1 (CC); 2000 (5) BCLR 491 (CC) at para 66. 6 Section 36(1) of the Constitution reads as follows:

6. Informing this submission is the respondents failure to adduce evidence to justify the limitation of the right to freedom of expression. Particularly conspicuous in its absence is evidence that would show that the impugned provisions effectively achieve the stated objects of the Act or that such objects cannot be attained through less restrictive means.7 7. Section 16 submits that the limitation of the right to freedom of expression in the form of the prior restraint that operates across all of the different platforms that comprise a publication, as defined in section 1 of the Act, is unreasonable and unjustifiable. Particular focus will,

however, be given to the platform referred to in the Act as any distributed network including, but not confined to, the Internet. 8. The discrete section in these heads of argument dealing with any distributed network including, but not confined to, the Internet signifies that this medium cannot be equated with traditional print media, and that it raises it own unique issues that are required to be addressed when

(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including(a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose. 7 Magajane v Chairperson, North West Gambling Board & Others 2006 (5) SA 250 (CC); 2006 (2) SACR 447 (CC); 2006 (10) BCLR 1133 (CC) at paras 90 and 95.

considering the proportionality of the limitation of the right to freedom of expression via the Internet. It also draws a distinction between the print publications, whose prior classification the respondents sought (albeit unsatisfactorily) to validate in their answering affidavit, and the new media publications in respect of which the respondents have advanced no justification at all for the imposition of a system of prior restraint. 9. Section 16 will ultimately contend that none of the impugned sections withstand scrutiny. In brief: 9.1 Section 16(1) of the Act is unconstitutional in that it envisages a system of subsequent classification in circumstances where: 9.1.1 Section 16(1) triggers a request-based classification requirement for communications and messages including those placed on any distributed network including the Internet where (i) The classification specifications (such as those contained in 16(4)(b)(i)) are impossibly vague, and the guidelines wholly inadequate, yet their application may result in the censorship of certain communications or messages placed on any distributed network including the Internet; and

(ii)

Print newspapers are exempt from such system but other publications, such as on-line news media services, are not exempt. This is especially so in circumstances where the differentiation is irrational and where the substantive standard applied to print newspapers constitutes a less restrictive means of accomplishing the Acts objects.

9.2 Sections 16(2)(a) and 24A(2)(a) require the prior classification of publications containing sexual conduct in circumstances in which: 9.2.1 The language utilized in section 16(2)(a) is overbroad and vague yet is accompanied by a section 24A(2)(a) criminal sanction in that the consequence of broadcasting, distributing, exhibiting in public or offering for sale or hire any publication that was not submitted for classification in terms of section 16(2)(a) carries a potential sentence of imprisonment for up to five years; 9.2.2 The criminal sanction imposed for broadcasting, distributing, exhibiting in public or offering for sale or hire any publication that was not submitted for classification in terms of section 16(2)(a) has a substantial chilling effect that extends to sexual conduct content falling outside of section 16(2)(a);

9.2.3 There exists a less restrictive means of achieving the objects of the Act that does not impose a prior classification requirement or a criminal sanction for the failure to submit a publication for prior classification; 9.2.4 Section 16(2)(a) creates a classification obligation with respect to any distributed network including the Internet in circumstances in which the infringement of the right to freedom of expression extends from inadequate and defective regulation to censorship yet is ineffective in achieving the objects of the Act which objects can be achieved through less restrictive means. This, moreover, in

circumstances where the consequence of non-compliance with the overbroad and vague classification scheme triggered by section 16(2)(a) is a formidable criminal sanction. The unjustifiable limitation of the right to freedom of expression: print publications 10.In their endeavour to justify the prior restraint imposed upon print publications by the pre-classification requirements the respondents go no further than to couple repetitious renditions of the Acts stated purpose with earnest assurances that the Act falls short of censoring any

publications.

This is illustrated by the following extracts from the

respondents answering affidavit:

3.5 Unlike in the pre-constitutional era, the Act does not censor publications which publications Parliament deem inappropriate and to permit that which it deems appropriate. On the contrary, the domain of the Second Respondent is to regulate all these materials and media by means of classification. The classification is intended to guide the consumers to know what content is suitable for what category or audience or viewership. (p348)

3.10 The purpose of classification is largely to protect children from exposure to potentially disturbing and harmful materials and from premature exposure to adult experiences, as well as to provide such information as will allow adults to make informed choices regarding the material they choose to view or read, both for themselves and for children in their care. (p350) 3.20 It is important to emphasise that pre-publication classification contemplated in the Act is not aimed at censorship but rather aimed at regulating publishers and distributors of these materials to ensure that the material is appropriately described for distribution to a category of readership corresponding to the taste, style and age-sensitivity of the specific publication. (p353-4) 5.9 It is incorrect to contend that the impugned provisions in any way prohibit any publication. (p361)

45.3 Most emphatically, the provisions of section 16(2) of the Act do not prevent anyone publishing anything. There are only consequences to those who publish material containing or depicting sexual conduct as defined without submitting such publication to prior classification. (p 391-2) 67.2 I nevertheless, emphasise that pre-publication classification contemplated in the Act is not aimed at censorship but rather aimed at regulating the publishers and distributors of these materials to ensure that the material is appropriately described for distribution to a category of readership. (p408-9)8

See also respondents answering affidavit par 3.4 p348, par 9.2 p363 and par 65.4 p407.

11.The respondents assertion that the Act does not censor publications is simply incorrect.9 This is dealt with in paragraph 50 below. The

respondents refusal to recognize that the Act also countenances an effective censorship of certain classified publications is accompanied by the absence of any justification for so substantial and irremediable an invasion of the right to freedom of expression. At a minimum, therefore, section 16(2) of the Act is unconstitutional to the extent that it triggers a prior classification of a publication as XX or X18 with the inevitable ban of such publication.10 12.In any event, the rote repetition of the stated objects of the Act does not suffice to establish the justifiability of the limitation of the right to freedom of expression. This is particularly so where such objects are capable of being attained through the employment of a less restrictive means. In any event, the respondents fail to have regard to the fact that the objects of the Act are not of equal weight and importance. Thus: 12.1 The object articulated in section 2(c) of making use of children in and the exposure of children to pornography punishable is, self-

Such censorship extends beyond publication containing child pornography or content falling short of what is carved out of the protection of the right to freedom of expression (i.e. propaganda for war, incitement of imminent violence, or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm). 10 This is discussed below. The issue arises also in relation to section 16(1) of the Act.

evidently, more important than section 2(b)s object of protecting children from exposure to disturbing and harmful materials and from premature exposure to adult experiences. Section 2(b), in turn, is more substantial and pressing an object than section 2(a) which seeks to provide consumer advice to enable adults to make informed viewing, reading and gaming choices, both for themselves and for children in their care. 12.2 In relation to section 2(a) of the Act, Section 16 submits that rather than justifying the limitation of freedom of expression, such object is itself such a limitation.11 The object articulated in section 2(a) is

patronizing and is redolent of moral censorship of an ilk that is inimical to the Constitution. It interposes, between the reader and the creator of the content, the opinion of a state-body that imposes its interpretation upon the exchange of thoughts and ideas. Thus, before even picking up the relevant publication the would-be adult reader is told by the state that what he is about to read is harmful or degrading. His ability to form his own opinion, autonomously and independently, and absent a prior moral label from the state, constitutes a pernicious form of thought control. It will be contended that more harmful than the experience of an adult who
11

Zondi v MEC for Traditional and Local Government Affairs 2005 (3) SA 589 (CC); 2005 (4) BCLR 347 (CC) at para 90.

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while reading a publication unexpectedly encounters a description or image that offends his sensibilities (at which point he is free to either continue to read the publication or to stop doing so), is the adult who does not read a publication because he has been told that it contains material that is disrespectful or degrading and is prevented from forming his own opinion whether this is in fact the case. At a minimum such object (i.e. advising adults to enable them to make informed reading choices) must rate below the fundamental right to freedom of expression. 13.We refer in this regard also to the exemption afforded in sections 16(1) and 16(2) of the Act to a bona fide newspaper that is published by a member of a body, recognized by the Press Ombudsman, which subscribes, and adheres, to a code of conduct that must be enforced by that body. 14.More fundamental than the irrationality of excluding magazines and online news service providers from this exemption12 is the

acknowledgement that the self-regulation of the exempted publications adequately serves the pressing and legitimate objectives of the Act. Section 16 submits that this acknowledgement necessarily means that
12

The applicants deal with the irrational exclusion of magazines from the exemption. Section 16 contends that the exclusion of on-line news service providers from such exemption is similarly irrational. Moreover, the definition of newspaper in the Act as including an on-line publication of a newspaper does not assist as this is a reference only to the on-line version of the printed newspaper.

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there can be no justification for subjecting other publications to a more onerous substantive standard with respect to sexual conduct content. At its lowest it is then incumbent upon the respondents to adduce evidence to show that the provisions of the Act effectively accomplish the stated objectives and that the standard applicable to exempt newspapers would not constitute a less restrictive means of satisfying the legitimate objects of the Act in respect of other publications. 15.The following is relevant in this regard: 15.1 The substantive regulation to which legitimate newspapers are subjected appears from the South African Press Code.13 The relevant paragraphs of the South African Press Code require that:
15.1.1 Reports, photographs or sketches relative to matters involving indecency or obscenity shall be presented with due sensitivity towards the prevailing moral climate.14 15.1.2 A visual presentation of sexual conduct may not be published, unless a legitimate public interest dictates otherwise.15 15.1.3 Child pornography shall not be published.16

13 14

Founding Affidavit Annexure 6 p90. Founding Affidavit Annexure 6 para 1.7 p91. 15 Founding Affidavit Annexure 6 para 1.7.1 p91. 16 Founding Affidavit Annexure 6 para 1.7.2 p91.

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15.2 Unlike the provisions of the Act which include, in section 24A(2) a fine and imprisonment for up to five years, the sanction for failing to comply with the South African Press Code is not criminal (neither a fine nor imprisonment is a competent sanction). Indeed the Code does not even impose a civil sanction in the form of payment of money, but rather provides for sanctions such as reprimands, apologies and corrections. The Code also does not impose a system of prior classification but rather operates upon a complaints and investigation basis.17 15.3 The respondents in their answering affidavit expressly accept that the standard imposed by the South African Press Code fully protect[s] the interests of children and [the interest of] educat[ing] adult choice.18 15.4 The separate regime for legitimate newspapers accordingly exposes a fundamental irrationality in the form of divergent standards to achieve the same objectives. If the respondents accept that a system of

subsequent complaint and investigation absent any criminal sanction is adequate to achieve these objectives in relation to newspapers, why would it not be similarly adequate in relation to other publications (albeit that it would not be administered by the Press Ombudsman)? Certainly,
Founding Affidavit Annexure 7 p94. Answering Affidavit para 18.2 p368. In paragraph 18.5 of their answering affidavit the respondents say further that: It is indeed the attitude of the legislature that self-regulation is to be encouraged to the extent that it affords effective protection of children and sensitive adult readership. (p369)
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this would be a less restrictive means of achieving the stated objects of the Act. 15.5 In this context, the respondents failure to proffer any facts to support the conclusion that the stated objectives of the Act are effectively met by the current regime, and that they cannot be met via a system of subsequent complaint and investigation absent any criminal sanction, amounts to a failure to discharge the onus of showing that the limitation of the right to freedom of expression is reasonable and justifiable. This is particularly so when regard is had to the respondents acceptance, at least in relation to magazines, of the substantial expense and inconvenience of the requirement of prior classification with the threat of a criminal sanction for non-compliance. 16.A further obstacle to the impugned sections warranting a label of constitutional validity is the definition of the sexual conduct content that requires prior classification considered together with the criminal sanction triggered absent pre-classification: 16.1 Section 16(2)(a) requires that any person (save for a legitimate newspaper) who for distribution or exhibition in the Republic creates,

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produces, publishes or advertises any publication that contains19 sexual conduct which, inter alia, violates or shows disrespect for the right to human dignity of any person, shall submit, in the prescribed manner,20 such publication for examination and classification to the Board before such publication is distributed, exhibited, offered or advertised for distribution or exhibition. 16.2 Sections 24A(2)(a) creates a criminal offence carrying with it a maximum liability of a fine and imprisonment for a period of up to five years in the following terms: Any person who knowingly broadcasts, distributes, exhibits in public, offers for sale or hire or advertises for exhibition, sale or hire any ... publication referred to in section 16(2)21 of this Act which has (a) except with respect to broadcasters that are subject to regulation by the Independent Communications Authority of South Africa and a newspaper contemplated in section 16(1), not been classified by the Board. 17. The word knowingly was considered by the Supreme Court of Appeal in Philotex (Pty) Ltd and Others v Snyman and Others; Braitex (Pty) Ltd
The overbreadth occasioned by the use of the word contains as submitted by the applicants is patent. Section 16, however, does not believe that the proffered interpretation which would substitute promotes or advocates for contains is plausible. This is discussed below. 20 This includes payment of a prescribed fee of R1000. 21 The applicants and the respondents are ad idem that the reference in section 24A(2)(a) to section 16(1) was in error and should in fact be a reference to section 16(2).
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and Others v Snyman and Others22 in the context of an action premised upon section 424 of the Companies Act 61 of 1973.23 Howie JA held at 143A-B that:
'Knowingly' means having knowledge of the facts from which the conclusion is properly to be drawn that the business of the company was or is being carried on recklessly; it does not entail knowledge of the legal consequences of those facts It follows that knowingly does not necessarily mean consciousness of recklessness. (Emphasis added.)

In this regard the learned Judge of Appeal relied upon Howard v Herrigel and Another NNO24 in which Goldstone JA said the following also in the context of section 424 of the Companies Act, 1973:
In my opinion the word 'knowingly' must be given the same meaning in both ss (1) and (3) of s 424. In S v Parsons en 'n Ander 1980 (2) SA 397 (D) at 400F, Leon J held that the word meant 'met kennis van die feite'. That conclusion finds strong support from the judgment of Schreiner JA in R v Thornton and Another 1960 (3) SA 600 (A). The statutory provision there relevant was s 10(1) of the Rents Act 43 of 1950. It provided that an offence would be committed if a lessor 'knowingly required or permitted a lessee to pay' a rent for controlled premises exceeding that determined by a rent board. At 611F-612A, the learned Judge of Appeal said the following: 'Although we are not here concerned with the general question of mens rea in statutory offences it is useful, I think, to have regard to
1998 (2) SA 138 (SCA). Section 424(1) reads: When it appears, whether it be in a winding-up, judicial management or otherwise, that any business of the company was or is being carried on recklessly or with intent to defraud creditors of the company or creditors of any other person or for any fraudulent purpose, the Court may, on the application of the Master, the liquidator, the judicial manager, any creditor or member or contributory of the company, declare that any person who was knowingly a party to the carrying on of the business in the manner aforesaid, shall be personally responsible, without any limitation of liability, for all or any of the debts or other liabilities of the company as the Court may direct. (emphasis added). Section 424(3) reads: Without prejudice to any other criminal liability incurred, where any business of a company is carried on recklessly or with such intent or for such purpose as is mentioned in ss (1), every person who was knowingly a party to the carrying on of the business in the manner aforesaid, shall be guilty of an offence (emphasis added). 24 1991 (2) SA 660 (A) at 673A- 674A.
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the well-known statement by Stephen J in Cundy v Le Cocq 13 QBD 207 at 210, that "it is necessary to look at the object of each act that is under consideration to see whether and how far knowledge is of the essence of the offence created". In s 10(1) we have the word "knowingly", so that no question of whether knowledge is essential arises; but the question of how far it is essential remains. The general rule is that even where knowledge is required it need not extend beyond the facts into the legal consequences flowing therefrom. So in Twycross v Grant 2 CPD 469, a civil case dealing, inter alia, with the meaning of "knowingly issuing" a prospectus in which mention was omitted of certain contracts which should have been mentioned, Cockburn CJ at 541 said: "Next, was the prospectus issued by the defendants 'knowingly' within the meaning of the section? It was contended that the term 'knowingly' must be taken to mean with a knowledge that the contracts were such as the statute required to be referred to: consequently, that, the jury having found that the mention of the contracts was omitted from the prospectus from a bona fide belief that such mention was unnecessary, the contracts had not been 'knowingly' omitted. But this is to misconceive the meaning of the term. 'Knowingly issuing' means neither more nor less than issuing with a knowledge of the existence of the contracts within the section, and the intentional omission of them from the prospectus. Ignorance or mistake of the law cannot be admitted as an excuse for disobeying an Act of Parliament." I read the last sentence in its context as providing a reason for interpreting "knowingly" as meaning "with knowledge of the facts".' After referring to other authorities, the conclusion of Schreiner JA was expressed thus at 612H: 'In my view the word "knowingly" in s 10(1) means only that the party providing the premises must know of the determination and that he is receiving from the party who is being given use and occupation sums in excess of the determination. It matters not what his views are on the nature of the legal relationship between himself and the other party or on the proper legal description of the sums received by him.'

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Having regard to the provisions of s 424 and to its purpose, to be entitled to an order the applicant must prove, on a balance of probabilities, that the person sought to be held liable had knowledge of the facts from which the conclusion is properly to be drawn that the business of the company was or is being carried on recklessly or with intent to defraud creditors of the company or creditors of any other person or for any fraudulent purpose. It would not be necessary to go further and prove that the person also had actual knowledge of the legal consequences of those facts. (Emphasis added.)

18.Consequently, an offence in terms of section 24A(2)(a) is committed where there is knowledge of the fact that one is broadcasting, distributing, exhibiting in public; offering for sale or hire or advertising for exhibition, sale or hire a publication that as a matter of fact contains the specified sexual conduct content. It is not necessary to go further and prove that the offenders knowledge extends to the conclusion that the content of the publication inter alia violates or shows disrespect for the right to human dignity of any person. It would not avail the offender to prove that he was mistakenly not of the view that the publication contained sexual conduct as specified. 19.A mistake as to whether a particular publication falls within section 16(2)(a) and requires to be submitted for prior classification accordingly carries with it the sanction of imprisonment. 20.The language employed in section 16(2)(a) aggravates the situation. In particular, the reference to any publication that contains sexual
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conduct25 which (i) violates or shows disrespect for the right to human dignity of any person culminates in the imposition of an obligation that is characterized by the sinister combination of uncertainty and criminal sanction. 26 21.What is meant by right to human dignity in the context of the phrase violates or shows disrespect for the right to human dignity of any person is particularly problematic. This Court acknowledged as much in the case of National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others27 where, while the importance of the constitutional protection of dignity was recognized, it was accepted that: Dignity is a difficult concept to capture in precise terms.28 22.Underpinning the inability to definitively articulate the ambit of the right to dignity is an awareness that dignity includes an entitlement to be

Sexual conduct is defined in section 1 of the Act as including: (i) male genitals in a state of arousal or stimulation; (ii) the undue display of genitals or of the anal region; (iii) masturbation; (iv) bestiality; (v) sexual intercourse, whether real or simulated, including anal sexual intercourse; (vi) sexual conduct involving the direct or indirect fondling or touching of the intimate parts of a body, including the breasts, with or without any object; (vii) the penetration of a vagina or anus with any object; (viii) oral genital contact; or (ix) oral anal contact. 26 For example, while the term sexual conduct is defined in section 1 of the Act, such definition is rendered susceptible to the quagmire of uncertainty referred to in R v Debele 1956 (4) SA 570 (A) at 575H576C by use of the word includes. The context in which includes appears makes it clear that the list merely expands upon the meaning of sexual conduct and does not constitute a closed definition. This definition is, moreover distinguishable from the definition of child pornography considered by this Court in De Reuck v Director of Public Prosecutions, Witwatersrand Local Division, and Others 2004 (1) SA 406 (CC); 2003 (12) BCLR 1333 (CC). 27 1998 (12) BCLR 1517 (CC). 28 At 1536.

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treated as worthy of respect and concern29 absent a comprehensive and conclusive understanding of what this comprises. 23.To an extent this is evident also from cases that concern the invocation of the action injuriarum which includes within its ambit of protection the right to an unimpaired dignity. The following extract from the then Appellate Division in Minister of Police v Mbilini30 is apposite in this regard:
Dignity was defined by Melius de Villiers in 1899 in his well-known work The Roman and Roman-Dutch Law of Injuries at 24 as that valued and serene condition in his social or individual life which is violated when he is, either publicly or privately, subjected by another to offensive and degrading treatment, or when he is exposed to ill-will, ridicule, disesteem or contempt. And further at 24 and at 25 the following is stated: Every person has an inborn right to the tranquil enjoyment of his peace of mind, secure against aggression upon his person, against the impairment of that character for moral and social worth to which he may rightly lay claim and of that respect and esteem of his fellow-men of which he is deserving, and against degrading and humiliating treatment; and there is a corresponding obligation incumbent on all others to refrain from assailing that to which he has such right. These passages have repeatedly been approved by the courts of this country as an accurate statement of the law in regard to the concept of injuria. See eg R v Umfaan 1908 TS 62 at 66 and 67; Walker v Van Wezel 1940 WLD 66; S v A and Another 1971 (2) SA 293 (T) at 297.

29 30

S v Makwanyane and Another 1995 (3) SA 391 (CC) at para 328. 1983 (3) SA 705 (A) at 715G-716A.

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24.Thus, the notion of dignity encompassing at a minimum the right to be treated as worthy of respect, esteem and concern, i.e. a claim to moral and social worth, has founded an action where, for instance, a woman was insulted or humiliated by the words jy gaan kak,31 a woman was referred to by the son of her married lover as a whore, bitch and fornicator such words constituting an insult to dignity,32 and where a woman was told by an angry parking attendant to shut up, you bitch.33 25.The question as to when sexual conduct can be said to disrespect the right to be treated with respect and concern and as the bearer of social and moral worth such that a failure to have such publication classified prohibits its distribution on threat of a substantial criminal sanction, does not invite ready answers. It is, accordingly, impossible to know, with any measure of certainty, what falls within the ambit of a publication that contains sexual conduct that, inter alia, shows disrespect for the right to human dignity of any person.34 26.In Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs this Court recognised that:
31 32

Minister of Police v Mbilini 1983 (3) SA 705 (A) at 716D. Ryan v Petrus 2010 (1) SA 169 (ECG) at 175I. See also Brenner v Botha 1956 (3) SA 257 (T). 33 S v S 1964 (3) SA 319 (T). 34 This problem arises also in section 16(4)(b) of the Act which repeats the phrase violates or shows disrespect for the right to human dignity of any person. This subsection includes other phrases that similarly elude precise meaning, such as incitement of, encourages or promotes harmful behavior.

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It is an important principle of the rule of law that rules be stated in a clear and accessible manner. It is because of this principle that s 36 requires that limitations of rights may be justifiable only if they are authorised by a law of general application.35

27.To similar effect in Affordable Medicines Trust v Minister of Health this Court acknowledged that:
[T]he rule of law is a foundational value of our constitutional democracy. It requires that laws must be written in a clear and accessible manner The law must indicate with reasonable certainty to those who are bound by it what is required of them so that they may regulate their conduct accordingly.36

28.Patently, that cannot be said in the present matter. Would-be distributors or exhibitors of publications containing sexual conduct content cannot be anything other than simply and proverbially clueless as to what comprises sexual conduct that shows disrespect for the right to human dignity of any person. 29.Such uncertainty is further heightened by the provisions of subsection 16(4)(b) which suggest that the term sexual conduct which violates or shows disrespect for the right to human dignity of any person means something other than and different from bestiality, incest, rape or conduct which is degrading of human beings, conduct or an act which constitutes incitement of, encourages or promotes harmful behavior and infliction of sexual or domestic violence.
35 36

2000 (3) SA 936 (CC) (2000 (8) BCLR 837 (CC) (endnotes omitted) at para 47. 2006 (3) SA 247 (CC) (2005 (6) BCLR 529 (CC) (endnotes omitted) at para 108.

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30.The uncertainty regarding what triggers an obligation to submit a publication for prior classification (on threat of criminal sanction) constitutes a fundamental failure of the rule of law. It also exacerbates the limitation of the right to freedom of expression. This is because it is probable that, in an attempt to avoid the criminal sanction, would-be distributors will resort to self-censorship and, thus, there will be an inevitable chilling effect such that even sexual conduct content that falls outside of what section 16(2) specifies will inevitably be silenced. As discussed more fully below this danger is particularly heightened in the context of expression via distributed networks and the Internet, where many (if not most) of the would-be distributors are individuals and not corporations embarking upon a commercial endeavour. 31.These concerns are not removed by interpreting section 16(2)(a) as referring to a publication that advocates or promotes (rather than contains) sexual conduct that shows disrespect for the right to human dignity of any person. The inherent vagueness and uncertainty of the latter phrase remains, with all of its attendant consequences, even when it is preceded by advocates or promotes. Similarly the lack of

proportionality between the criminalization of the distribution of a publication (even where it promotes the defined sexual conduct
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content) absent prior classification and the objects to be attained by the Act persists, particularly where such objects are seemingly adequately achieved via a far less restrictive approach with respect to newspapers i.e. a system of subsequent complaint and investigation absent criminal sanction and the drastic interference with the right to freedom of expression in the form of a prior restraint of publication.37 32.In any event section 16(2) is not reasonably capable of being interpreted as referring to a publication that advocates or promotes the defined sexual conduct. This is demonstrated by the following: 32.1 Sub-sections 2(a) and (b) of the Act stipulate that its objects are to limit unwanted exposure with respect to adults and inappropriate exposure with respect to children to certain publications. This concern persists even where the material in question does not promote or advocate the disturbing content but merely contains it. 32.2 The regulations published in terms of the Act (GN 887 of 1 September 2009 published in Government Gazette No. 32542) say, inter alia:

Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions (Western Cape) 2007 (5) SA 540 (SCA) at para 6.

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32.2.1 In section 1, that the purpose of classification includes protecting children from exposure to potentially disturbing and harmful materials and from premature exposure to adult experiences. Clearly this danger exists irrespective of whether the publication promotes the depicted adult experience or simply displays (i.e. contains) it. After all, depending upon the age of the child, they may be unable to discern whether or not the conduct in question is being promoted. 32.2.2 In section 2 the Guiding Principles are said to include the right of the public to be protected from unsolicited exposure to materials which some may find offensive. This concern arises irrespective of whether the materials are promoting the underlying conduct or are simply describing or exhibiting such conduct. 32.2.3 It emerges from section 3 of the regulations that the classification process is premised upon classifiable elements. Classification decisions are based on the impact of the classifiable elements within the context of the publication being examined. It is the intensity and frequency of a classifiable element that will determine the rating of the material examined: the more intense and frequent a

25

classifiable element, the more likely that the material will be given a higher age rating. Clearly, therefore, the purpose of publishing the classifiable elements (i.e. whether it is to promote or condemn the content displayed) is secondary to the existence, description and display of such elements. 32.2.4 Section 16(4) also makes use of the word contains. It does so in a context that is irrefutably inconsistent and incompatible with advocates or promotes: (a) Subsection 16(4)(b) says that the classification committee shall classify the publication as XX if it contains (v) explicit visual presentations of extreme violence. It would make no sense for this section to read: the classification committee shall classify the publication as XX if it promotes (v) explicit visual presentations of extreme violence. (b) Subsections 16(4)(b) and (c) refer to explicit sexual conduct. Again, it makes no sense for there to be a requirement to afford a particular classification to a publication that promotes explicit sexual conduct which is defined in section 1 as: graphic and detailed visual presentations or descriptions of any

26

conduct contemplated in the definition of sexual conduct. The concern clearly is that there will be exposure to explicit sexual conduct and not to the promotion or advocating of same. Similarly, with reference to subsection 16(4)(b)(ii) the concern is that there will be exposure to bestiality and not that the reading of a particular publication will advocate the engagement in this sexual practice. The unjustifiable limitation of the right to freedom of expression: distributed networks including, but not confined to, the Internet 33.The respondents failure to address adequately the question of whether the conceded limitation of the fundamental right to freedom of expression is reasonable and justifiable is most glaring in relation to non-print publications referred to in subsection (i) of the definition of publication in the Act, namely any message or communication, including a visual presentation, placed on any distributed network including, but not confined to, the Internet. 34.The reason for this appears to be a mistaken belief that the Act does not apply to the Internet.38 This despite the fact that sections 16(1) and

38 This error appears from the following paragraphs of the respondents answering affidavit:

27

16(2) refer to a publication and any publication respectively and that the definition of publication expressly includes any message or communication place on any distributed network including the Internet. 35.While the respondents recognize that different mediums of

communication raise their own discrete issues39 they fail to consider what this means in relation to attempts to regulate, and in certain instances censor, any message or communication, including a visual presentation, placed on any distributed network including, but not confined to, the Internet.40 36.The respondents failure to engage with the behemoth that is any distributed network including, but not confined to, the Internet cannot be overlooked. This is because the very nature of distributed networks, including the Internet, as they continuously evolve, is to render the precise manner of regulation that the Act seeks to impose impractical and ineffective. Ultimately, what is left is a substantial violation of the right

I may only point, for instance to, the difficulty associated with publication of material over the internet which is a medium outside regulation and one with its peculiar hazards. (p369) 48.4 The distribution of material over the internet is a whole body of complex debate, particularly in relation to regulation thereof. I am advised that it will not be necessary to open this hornets nest. (p396) 39 3.24It is also useful to explain the different mediums of communication. By this, I mean that images conveyed through film and those conveyed through print are different and require different treatment. (Respondents answering affidavit p355.) 40 Section 1 of the Act, the definition of publication (subsection (i)).

18.4

28

to freedom of expression as articled in section 16 of the Constitution absent the effective attainment of the Acts stated objectives. 37.For present purposes three of the most important characteristics of distributed networks, including the Internet, are the following: 37.1 The Internet has radically transformed the media landscape such that it is no longer the sole preserve of large media corporations and publishing houses with deep pockets disseminating information and other content to the public. Rather, the public have become the creators of content and, unlike the large media corporations and publishing houses, they are generally not motivated by commercial profit. In addition, the flow of communication is no longer uni-directional with the distinction between receivers and content providers becoming totally blurred. 37.1.1 This is reflected in a submission to the Australian Law Reform Commission (ALRC) in its Review of Censorship and Classification by the well-known Internet search engine, Google. Google said, inter alia that:
Todays media is very different. The audience of passive recipients of content has been replaced by citizen creators and citizen journalists engaging interactively with media platforms/services such as YouTube, Facebook, Yahoo and ninemsn, to create and distribute content. Vertical media silos have been replaced by a horizontal, converged landscape of platforms, content providers and users, facilitated by communications networks In this 29

changed environment, how we determine the appropriate policy approach to regulation of content needs to be fundamentally reconsidered.41

37.1.2 The Organisation for Economic Co-operation and Development has also noted:
The Internet as a new creative outlook has altered the economics of information production, increased the democratization of media production and led to changes in the nature of communication and social relationships Changes in the way users produce, distribute, access and re-use information, knowledge and entertainment potentially give rise to new user autonomy, increased participation and increased diversity.42

37.1.3 In its Report on Classification Content Regulation and Convergent Media the ALRC recognized:
The rise of the internet has further strengthened the power of individuals to exercise their rights to free speech, and the impacts of this are being seen across the globe. As a uniquely powerful medium for personal expression, the internet challenges existing regulatory regimes in a profoundly important manner.

It also quoted the following submission advanced by Google:

At a time when technology has delivered the potential for users to access, create and distribute content anywhere and at any time, and when innovation is resulting in ever new ways for that engagement to occur, it is imperative that content regulations not operate as a roadblock to innovation, nor a fetter on the free flow of legal content.43

37.2 National boundaries for the purposes of regulating content have become increasingly redundant as with a literal click of a button citizens

Quoted in ALRC Report 118, Classification Content Regulation and Convergent Media, February 2012 accessible on www.alrc.gov.au p60. 42 Quoted in ALRC Report 118 p71. 43 ALRC Report 118 p80 par 4.16, p81 par 4.21.

41

30

have access to content generated throughout the world.44 On the internet content is both produced and hosted throughout the world. 37.3 The sheer volume of content that comprises the Internet, much of which is dynamic or mutable, defies the realistic possibility of effectively classifying messages and communications expressed on this platform: 37.3.1 The ALRC in its Report on Classification Content Regulation and Convergent Media recognized that content classification is neither practical nor cost-effective. It said, inter alia:
6.6 There are over one trillion websites, hundreds of thousands of apps are available to download to mobile phones and other devices, and every minute over 60 hours of video content are uploaded to YouTube (one hour of content per second). Submissions to this Inquiry consistently pointed to the sheer volume of content that is now available, particularly online, and the impossibility of having Australian classifiers watch and formally classify all of it. Civil Liberties Australia, for example, submitted that the sheer volume of content available today simply makes mandatory classification impractical. Likewise, the Arts Law Centre submitted that it is: clearly impractical and too costly for Government to classify all content being delivered via the internet. This inevitably must lead to the conclusion that there should be less formal regulation of content in Australia. 6.7 The volume of content is one of the key reasons the ALRC recommends a greater role for industry classifiers in the new scheme However, if classification is to remain a rigorous process meaning that content is watched and accessed by trained classifiers applying formal criteria it is still not possible to have

One of the many concerns that arises with respect to national regulation of an international platform is that domestic content providers can be substantially disadvantaged vis--vis international content providers. ALRC Report 118 pp90-91pars 4.74-75.

44

31

all media content classified. To do so would impose a significant regulatory burden on content providers and create laws that would be difficult to enforce. As Telstra submitted Ineffective or inconsistently enforced classification obligations aid nobody. End users are disadvantaged as ineffective classification obligations risk giving a false sense of security reducing self vigilance or creating confusion about remedies.45

37.3.2 The ineffectiveness of classifying on-line content was a strong motivator in the ALRCs recommendation that, while access to adult-only material should be restricted, it was not necessary for such content to be classified by the Classification Board or an authorised industry classifier applying statutory classification criteria:
10.41 the need for classification may appear more pressing when dealing with content that may harm or distress children. In the ALRC view, requiring all adult content to be formally classified by Australian classifiers is not the solution to this problem. In the Discussion Paper, the ALRC presented a different view and proposed that, if the sale of some X+ content were made legal in Australia, the content should be required to be classified [many] submissions were critical [of this proposal], some suggesting that requiring distributors to have this content classified is absurd. For example, one person submitted that the vast majority of this content would be online content originating overseas: As the providers are outside Australian jurisdiction, the law cannot be enforced. A law that cannot be enforced is a thoroughly bad law and only serves to bring the law into disrepute. 10.43 Civil Liberties Australia argued that this proposal would mean that Australia is enacting legislation that has no teeth, cannot be enforced in any practical sense, and will be ignored by consumers and producers alike. The Australian Communications and Media Authority (the ACMA) also submitted that enacting a law

10.42

45

ALRC Report 118 pp126-27.

32

where it is acknowledged that it cannot be complied with, or effectively enforced, is likely to lead to a low regard for such a law and, as a consequence, a significantly diminished culture of compliance. This would significantly undermine the laws overall purpose. 10.46 Requiring Australian classifiers to watch and classify all R18+ and X18+ content is not an effective or viable means of regulating adult content. Existing laws in the ACT and the NT [territories in Australia] that provide that pornography may be sold if classified by the Classification Board cannot be practically applied online. It is not feasible to require all pornography available in Australia to be watched and evaluated by Australian classifiers. There is a vast quantity of this content, and much of it is dynamic, widely dispersed, and user-generated. The pre-classification model of content regulation is not suited to the regulation of pornography, particularly online pornography and as argued throughout this Report, regulating content sold on some platforms, but not others, is fast becoming unworkable. The ALRC considers that there should not be one set of laws for pornography on the internet, and another for pornography on DVDs and magazines. In the ALRCs view, if reasonable steps are taken to restrict access to adult content, there is no need to impose an obligation that the content also be classified. Imposing a classification requirement that will be widely ignored, and would in any event have a very limited effect on content hosted outside Australia, may lower respect for the law, and waste limited regulatory resources. This Report emphasizes the importance of an effective and pragmatic regulatory response to adult content that accounts for the realities of the existing media environment.46

10.4.7

38.It was not permissible for the respondents to simply ignore the fact that the impugned sections apply also to any distributed network, including the Internet. It was also not permissible for them to disregard the known difficulties and challenges implicated in regulating content on any distributed network, including the Internet and the inefficacy of doing so.
46

ALRC Report 118 pp238-39.

33

Rather, it was incumbent upon the respondents to engage with the hornets nest and adduce evidence that would enable this Court to conclude that the limitation of the right to freedom of expression via the prior classification of communication or messages on the Internet would (or could) effectively attain the stated objects of the Act, and that this could not be accomplished through the employment of less restrictive means.47 The respondents did not do this. 39.The lacuna that is the respondents failure to address on-line publications is echoed by the Act. A consideration of the Act (which in terms of the definition of this Act in section 1 includes the regulations promulgated in terms of section 31) reveals that there are no systems in place for dealing with the classification of on-line sexual conduct content other than to effectively ban it.48 40.For example, GNR 207 of 15 March 2010 published in Government Gazette No. 33026 sets out Procedures for Classification of Publications.
47

Such procedure, however, caters only for print

The types of factual issues that the respondents would have been expected to address include the adequacy of various tools available to the internet consumer to protect against exposure to offending material. An example is Google Safe-Search (http://www.google-safesearch.co,) which contains a setting that will block a substantial amount of content that Google considers to be offensive. Another example is netnanny (www.netnanny.com) which is a type of 3rd party software that serves to restrict the internet experience of a minor to non-offending content by prohibiting the minor from accessing certain content. 48 This is discussed below. It applies also in relation to the classification of content on any distributed network including the Internet subsequent to a request in terms of section 16(1) of the Act.

34

publications. This is clear from paragraph 3 which requires submission (with the prescribed fee) on Form FPB/P which form requires information regarding: issue or edition, subject or genre, and description of contents with reference to page numbers. It is also evident from paragraph 4 which specifies the procedure to be used by the classification committee when examining and classifying a publication which is similarly focused upon print publications and requires that the committee examine the publication, page by page, from cover page to last page and scrutinize each page by examining the visual presentation and text in order to identify all classifiable elements.49 41. Similarly the procedures for presenting or packaging publications that have been classified X18 or as having adult content apply only to print publications. Regulations:
5. Display of classification certificate on publications classified X18. (1) A publication that is a magazine contained in a wrapper which is classified X18 must have the classification certificate prominently displayed on the bottom right hand corner of the cover.

This appears from the following paragraphs of the

It is noted that both the applicants and the respondents are ad idem that the Act requires submission of the entire publication for purposes of classification (Founding Affidavit par 49, Answering Affidavit par 49). It is, however, unclear what comprises the entire publication in the context of the Internet.

49

35

(2)

If the publication is a book, which is classified X18, the conditions of display of the classification certificate shall be imposed by the classification committee.

6.

Display of publications containing adult content. (1) All publications containing adult content shall be enclosed in an opaque wrapper or brown paper bags covering the explicit pictures prior to being displayed in a family video store or any other outlet for distribution. All publications containing adult content shall not be displayed within easy reach of children, or next to, or among publications intended for children. All publications containing adult content shall immediately be removed from the shelves upon complaint by a consumer until a determination of the publication has been made by the Board. A certificate of classification shall be displayed prominently on the bottom right hand corner of the cover of any publication containing adult content.

(2)

(3)

(4)

42.The failure to set out any procedures for dealing with the mandatory prior classification of sexual conduct content on any distributed network including the Internet underscores the inefficacy and irrationality of attempting to regulate these platforms via the pre-classification of content that contains (or even promotes or advocates) sexual conduct that, inter alia, violates or shows disrespect for the right to human dignity of any person. There is simply nothing in place to deal with:

36

42.1 The tweeter50 who is relaying to her followers the nature of the evidence in a court case dealing with sexual conduct, or who wants to express views (that may not be politically correct and might very well show a level of disrespect for the dignity of men or women in general) that concern or include references to sexual conduct; 42.2 The blogger51 who maintains a blog dealing with topical issues that, on occasion, include sexual conduct that may fall within the ambit of section 16(2)(a) of the Act,52 or the blogger who maintains a personal blog reflecting his or her views upon all aspects of human experience including sexual conduct; 42.3 The Facebook user53 who utilizes this platform as a means of expressing and articulating thoughts and ideas as well as relaying personal experiences and whose communications may also stray into the domain of sexual conduct falling within section 16(2)(a) of the Act.
The users of Twitter are referred to as Tweeters. The manner in which Twitter operates appears from http://howtwitterworks.com/. 51 The concept of a blog is explained in Kaschke v Gray & Anor [2010] EWHC 690 (QB) (29 March 2010) at paras 6, 69, 77-96 and 109-10. 52 An example of such a blog would be that written and managed by Professor Pierre de Vos, the Claude Leon Foundation Chair in Constitutional Governance at the University of Cape Town which deals with social and political aspects of South African society (available at http://constitutionallyspeaking.co.za). This blog has in the past dealt with issues of rape and sexual abuse which would fall within the purview of section 16(2)(a) (see, for instance, de Vos, "Why no human rights culture in the Police Service?" (available at http://constitutionallyspeaking.co.za/2011/11/07/). Facebook is explained in Sedick & another v Krisray (Pty) Ltd [2011] 8 BALR 879 (CCMA) at pars 1521, 45 and 50, and Applause Store Productions Limited & Anor v Raphael [2008] EWHC 1781 (QB) at par 2.
53 50

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43.The sheer multitude of such publications (particularly when considered together with other forms of on-line publication such as internet websites and the like, many of which are updated on a daily basis) considered together with the absence of any systems in place for dealing with such communication and messages renders the conclusion inevitable that any attempt to implement a system of prior classification of such expression will be characterized by substantial practical difficulties. 44.This will result, at best, in inordinate delays that in many instances will render the proposed expression meaningless where, for instance, it is no longer current or relevant due to the delay. 45.At worst it will create an irrational, inefficient and ineffective system of regulation that ominously silences much expression concerning sexual conduct. After all, if a non-commercial blogger or user of Facebook or Twitter is required to submit their proposed publication for classification before they can lawfully distribute it, and is required to pay a fee each time they do this, and face a criminal conviction and possible jail sentence if they do not submit the publication, then the inevitable consequence will be the silencing of all expression that could even conceivably fall within section 16(2)(a) even where it does not. This is

38

particularly the case where the users of such distributed networks are engaging in a dialogue which multi-directional platform relies for its efficacy upon instant communication. 46.Many of Section 16s difficulties with the prior classification obligation imposed upon on-line publications are illustrated with reference to the following example: 46.1 The website www.zapiro.com hosts a collection of cartoons penned by the famous South African cartoonist Zapiro. 46.2 This controversial Rape of Justice cartoon appears on the website:54

54

http://www.zapiro.com/cartoon/122794-080907st.

39

46.3 Such cartoon was also published in a print newspaper, the Sunday Times. 46.4 Under the Act this cartoon arguably falls within the scope of section 16(2)(a) and ought to have been submitted for prior classification because it is a publication which contains sexual conduct which violates or shows disrespect for the right to human dignity of any person55 or degrades a person. 46.5 Such cartoon would according to the Act require to be submitted for prior classification before it can be exhibited on the cartoonists internet site. This despite the fact that no such prior classification is required to publish this same cartoon in The Sunday Times newspaper. 46.6 The requirement of prior classification in order to publish the cartoon on the internet may very well result in the author reconsidering it particularly where topicality and currency is vital. In other words the process of artistic creation will likely be impacted upon by the system of regulation. Equally significantly, the system of regulation also has the invidious result of reversing the real technological innovations introduced by on-line media, such as real-time publication by interposing

55

Possibly the president or the fictional woman represented as the Justice System.

40

a time delay (in the form of the classification process) where otherwise there would be none. 46.7 As discussed below, in the event that the cartoon, subsequent to submission, is classified as XX or X18 it will effectively be prohibited from being published on the Internet. 46.8 If, however, Zapiro were to either not submit the cartoon for prior classification and publish it on the Internet or publish it on the Internet irrespective of it having been classified as XX or X18 he would face a possible criminal sanction of up to five years imprisonment. The

publication of his cartoon in the print newspaper, also absent prior classification, would, on the other hand, expose him to no potential or actual criminal sanction. 46.9 Other persons who wish to make the cartoon the subject of any thoughts or dialogue or communication on, for example, Facebook or Twitter or a Blog and who would require permission to reproduce its essential elements to this end would similarly have to navigate section 16(2) of the Act and the possibility of criminal sanction. They too (to the extent that they could afford to pay the classification fee of R1000) would inevitably self-censor rather than facing the possibility of a

41

criminal conviction for not first applying for classification of their comments. 47.Unequivocally the respondents have failed to adduce any evidence (or advance any arguments) that balances the fundamental and far-reaching infringement of the right to freedom of expression by the impugned sections of the Act, particularly insofar as it pertains to the requirement of prior classification with respect to sexual conduct content on any distributed network including the Internet. 48.The decision of the U.S. Supreme Court in Reno et al v American Civil Liberties Union et al56 is apposite. In addition to addressing what the Internet is and highlighting its innovations and its contribution to the exchange of thoughts and ideas as well as the facilitation of a marketplace of ideas as diverse as human thought,57Justice Stevens focused upon the particular concern that arises where access to content on the Internet is sought to be regulated by a statute58 and particularly where

56 57

Reno et al v American Civil Liberties Union et al521 U.S. 844, 117 S.Ct 2329 (1997). Justice Stevens said also that the Internet was a far less invasive media than radio or television. In this regard he referred with approval to the District Courts finding that unlike radio or television, [c]ommunications over the Internet do not invade an individuals home or appear on ones computer screen unbidden. Users seldom encounter content by accident. Reno at 854. 58 In that case the Communications Decency Act of 1996 (CDA) which creates a criminal offence where obscene or indecent content is knowingly communicated to person under 18. The precise language of the relevant sections of the CDA appear from the judgment.

42

such statute suffers from vagueness. The following quotations from the opinion of Justice Stevens are apposite:
The vagueness of the CDA is a matter of special concern for two reasons. First, the CDA is a content based regulation of speech. The vagueness of such regulation raises special First Amendment concerns because of its obvious chilling effect on free speech The severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images As a practical matter, this increased deterrent effect, coupled with the risk of discriminatory enforcement of vague regulations, poses greater First Amendment concerns.59 the CDA thus presents a greater threat of censoring speech that, in fact, falls outside the statutes scope. Given the vague contours of the coverage of the statute, it unquestionably silences some speakers whose messages would be entitled to constitutional protection. That danger provides further reason for insisting that the statute not be overly broad. The CDAs burden on protected speech cannot be justified if it could be avoided by a more carefully drafted statute.60 We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.61 The breadth of this content based restriction of speech imposes an especially heavy burden on the Government to explain why a less restrictive provision would not be as effective as the CDA. It has not done so62

49.In addition to not justifying the prior classification of sexual conduct content on-line (which the respondents contend is a legitimate form of regulation) the respondents omit to deal with such regulation in the form

59 60

Reno at 871. Reno at 874. 61 Reno at 874. 62 Reno at 879.

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of the prohibition or censorship of content on-line (which even the respondents do not contend is permissible). 50.The following analysis of the Act demonstrates that the limitation of the right to freedom of expression via distributed networks including the Internet in fact goes further than classification and extends to the very prohibition or censorship that the respondents expressly and repeatedly disavow: 50.1 Section 16(2)(a) requires that any person who, for distribution or exhibition in the Republic creates, produces, publishes or advertises any publication that contains sexual conduct which violates or shows disrespect for the right to human dignity of any person, degrades a person, or constitutes incitement to cause harm shall submit, in the prescribed manner, such publication for examination and classification to the Board before such publication is distributed, exhibited, offered or advertised for distribution or exhibition; 50.2 In terms of section 16(3) the Board in turn refers the publication submitted to it to a classification committee for examination and classification of such publication;

44

50.3 Section 16(4) prescribes that the classification committee shall, in the prescribed manner, examine a publication refer to it and, inter alia:
(b) classify the publication as XX if it contains (i) (ii) (iii) (iv) (v) explicit sexual conduct which violates or shows disrespect for the right to human dignity of any person; bestiality, incest, rape or conduct or an act which is degrading of human beings; conduct or an act which constitutes incitement of, encourages or promotes harmful behaviour; explicit infliction of sexual or domestic violence; or explicit visual presentations of extreme violence,

unless, judged within context, the publication is, except with respect to child pornography, a bona fide documentary or is a publication of scientific, literary or artistic merit or is on a matter of public interest, in which event the publication shall be classified X18 or classified with reference to the guidelines relating to the protection of children from exposure to disturbing, harmful or ageinappropriate materials; (c) classify the publication as X18 if it contains explicit sexual conduct, unless, judged within context, the publication is, except with respect to child pornography, a bona fide documentary or is a publication of scientific, literary or artistic merit or is on a matter of public interest, in which event the publication shall be classified with reference to the guidelines relating to the protection of children from exposure to disturbing, harmful and age inappropriate materials

50.4 Section 16(5) provides, inter alia, that where a publication has been classified XX or X18, the chief executive officer shall cause that classification decision to be published by notice in the Gazette. 50.5 Section 24(1) provides that:

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Any person may exhibit in public or distribute any publication classified as X18 in terms of the Act if such person is the holder of a licence to conduct the business of adult premises, issued by a licensing authority in terms of relevant national, provincial or local government laws: Provided that such exhibition or distribution takes place on or from within premises forming part of a building.

50.6 Section 24A(2) provides:

Any person who knowingly broadcasts, distributes, exhibits in public, offers for sale or hire or advertises for exhibition, sale or hire any film, game or a publication referred to in section 16[2] of this Act which has (a) except with respect to broadcasters that are subject to regulation by the Independent Communications Authority of South Africa and a newspaper contemplated in section 16(1), not been classified by the Board; (b) been classified as a refused classification; or (c) been classified as XX, shall be guilty of an offence and liable, upon conviction, to a fine or to imprisonment for a period not exceeding five years or to both a fine and such imprisonment.

50.7 Section 24A(3) provides that:

Any person, not being the holder of a licence to conduct the business of adult premises and who knowingly broadcasts, distributes, exhibits in public, offers for exhibition, sale or hire or advertises for sale or hire any publication which has been classified X18, shall be guilty of an offence and liable, upon conviction, to a fine or to imprisonment for a period not exceeding five years or to both a fine and such imprisonment.

50.8 Part 4 of the regulations published in terms of section 31(1) of the Act in Government Gazette No. 33026, GNR. 207 of 15 March 2010 make it clear that a licence cannot be obtained for distributing publications over the internet or other distributed network

46

50.8.1 Section 17(1) says that Any person who intends to apply for an exemption to distribute films and publications classified X18 shall first obtain a licence issued by a local licensing authority before submitting an application for an exemption; 50.8.2 Section 17(3) says that Films and publications classified X18 may be distributed only (a) from within licensed premises; and 50.8.3 Removing any uncertainty in this regard, section 17(4) provides that Films and publications classified X18 may not be distributed (b) on the internet [or] (d) on social networking sites. 50.9 It is, therefore, clear that: 50.9.1 Any publication (on any distributed network including the Internet) that, inter alia, contains explicit sexual conduct which violates or shows disrespect for the right to human dignity of any person or bestiality, incest, rape or conduct or an act which is degrading of human beings or explicit infliction of sexual or domestic violence or explicit visual presentations of extreme violence and does not constitute a bona fide documentary or is a publication of scientific, literary or artistic merit or is on a matter of public interest is, per se, prohibited.
47

50.9.2 Where the publication satisfies the test of comprising a bona fide documentary or is a publication of scientific, literary or artistic merit or is on a matter of public interest then it is still available to the adult public if it is a print publication, albeit only though a licensed adult-only store. In the case of a distributed network including the Internet, however, such publication is effectively censored. 51.Here, in relation to the above illustrated effect of total censorship63 of the section 16 right with respect to publications on any distributed network including the Internet, Section 16 refers to what was said by this Court in Zondi v MEC for Traditional and Local Government Affairs:
If a statute has a purpose that violates the Constitution, it must be held to be invalid regardless of its actual effects. The effect of legislation is relevant to show that although the statute is facially neutral, its effect is unconstitutional.64

Conclusion 52.Sections 16(1), 16(2) and 24A(2)(a) of the Act limit the right of freedom of expression via a system that extends beyond regulation to actual

Attention is drawn to the fact that the respondents expressly disavow that the Act censors adult content (i.e. adult pornography) that falls short of either child pornography or an expressly excluded ground under section 16(2) of the Constitution. 64 Zondi v MEC for Traditional and Local Government Affairs 2005 (3) SA 589 (CC); 2005 (4) BCLR 347 (CC) at para 90.

63

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censorship and which is both impractical and ineffective. It is also arbitrary and irrational.65 53.Faced with a regulatory regime that contravenes the fundamental right to freedom of expression, absent any tangible countervailing benefit, it is respectfully submitted that this Court is required to find that the impugned sections are unconstitutional.

__________________ S Stein

__________________ K Serafino - Dooley

Section 16s counsel Chambers, Sandton 5 March, 2012

65

Additional aspects of such arbitrariness and irrationality are alluded to in Section 16s application for admission as an amicus curiae. For example the exclusion of on-line news services from the exemption afforded to print newspapers referred to in paragraph 23 of the affidavit of Melissa Moore is an illustration of this.

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SECTION 16'S FULL LIST OF AUTHORITIES

DOMESTIC CASE LAW Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC) Brenner v Botha 1956 (3) SA 257 (T) Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 De Reuck v Director of Public Prosecutions, Witwatersrand Local Division, and Others 2004 (1) SA 406 (CC); (2003) (2) SACR 445 (CC); 2003 (12) BCLR 1333 (CC) Howard v Herrigel and Another NNO 1991 (2) SA 660 (A) Magajane v Chairperson, North West Gambling Board & Others 2006 (5) SA 250 (CC); 2006 (2) SACR 447 (CC); 2006 (10) BCLR 1133 (CC) Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions (Western Cape) 2007 (5) SA 540 (SCA) Minister of Police v Mbilini 1983 (3) SA 705 (A)
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 National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1998 (12) BCLR 1517 (CC) Phillips v DPP, WLD 2003 (3) SA 345 (CC); (2003) (1) SACR 425 (CC); 2003 (4) BCLR 357 (CC) Philotex (Pty) Ltd and Others v Snyman and Others; Braitex (Pty) Ltd and Others v Snyman and Others 1998 (2) SA 138 (SCA) R v Debele 1956 (4) SA 570 (A) Ryan v Petrus 2010 (1) SA 169 (ECG) S v S 1964 (3) SA 319 (T) S v Makwanyane and Another 1995 (3) SA 391 (CC) S v Manamela and Another (Director-General of Justice Intervening) 2000 (3) SA 1 (CC); 2000 (5) BCLR 491 (CC) Sedick & another v Krisray (Pty) Ltd [2011] 8 BALR 879 (CCMA) Zondi v MEC for Traditional and Local Government Affairs 2005 (3) SA 589 (CC); 2005 (4) BCLR 347 (CC)

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FOREIGN CASE LAW Applause Store Productions Limited & Another v Raphael [2008] EWHC 1781 (QB) Cairns v Modi [2010] EWHC 2859 (QB) Kaschke v Gray & Another [2010] EWHC 690 (QB) Reno et al v American Civil Liberties Union et al 521 US 844, 117 S.Ct 2329 (1997)

LEGISLATION AND REGULATIONS Companies Act 61 of 1973 Films and Publications Act 65 of 1996 Films and Publications Amendment Act 3 of 2009 Films and Publications Board: Guidelines to be used in the classification of films, interactive computer games and certain publications (GN 887 of 1 September 2009, GG 32542) Films and Publications Board: Regulations on fees for registration, renewal of registrations for distributors, ISPs and classification of films,

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games and publications and other services (GN 674 of 6 August 2010, GG 33432) Films and Publications Regulations (GN 207 of 15 March 2010, GG 33026)

LAW REFORM REPORTS Australian Law Reform Commission, Classification - Content Regulation and Convergent Media (ALRC Report 118), February 2012 (available at http://www.alrc.gov.au/publications/classification-content-regulationand-convergent-media-alrc-report-118)

WEBSITES REFERENCES www.constitutionallyspeaking.co.za www.dailymaverick.co.za www.google-safesearch.com www.netnanny.com www.zapiro.com www.howtwitterworks.com.

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