MEDIA MONITORING PROJECT

27 July 2004

RE: Submission on Children’s Bill from the Media Monitoring Project

The Media Monitoring Project is an NGO based in Johannesburg that conducts research of the media within a framework of human rights. Based on our interest on

children’s rights in relation to the media the MMP feels it necessary to make a

submission on the Children’s Bill and would also welcome the opportunity to make

an oral submission.

Please find attached a copy of the MMP’s submission. Should you have any

questions please do not hesitate to contact me or the Director, William Bird.

Yours sincerely

Bharti Daya

Project Co-ordinator

Media Monitoring Project

PO Box 1560, Parklands, 2121 • Tel +2711 788 1278 • Fax +2711 788 1289

Email mmp@wn.apc.org • http://www.sn.apc.org/mmp

Monitoring the media since 1993

MMP Submission on Children’s Bill July 2004 1

Submission on the Children’s Bill by

the Media Monitoring Project

27 July 2004

1. Introduction

The Media Monitoring Project is a non-governmental organisation that conducts research of the media within a framework that upholds and respects human rights.

The MMP was established in 1993 and has extensive monitoring experience. The

MMP has researched various social and political issues including the media’s

representation of local and national elections, race, gender, HIV/AIDS and the

representation of children and children’s rights in the news media.

The field of children’s rights is vast and complex which is given concrete expression

in the media. While the field of children’s rights is not the MMP’s specific area of

expertise the rights of children in relation to the media is an area the MMP has

conducted extensive research in. The MMP is running a project called Empowering

Children and Media (ECM) where one of the components was to conduct research

with children on the representation of children and children’s rights in the news

media which was carried out in 2003. The research involved conducting an analysis

of 36 news media including print, radio and television. Based on the research

findings of this project funded by Save the Children Sweden and UNICEF the MMP

found that in spite of the prohibition of naming and identifying the children involved

in criminal proceedings in the Criminal Procedures Act, the media tends to name and

identify children who have suffered abuse, rape, trauma and even those who have

been witnesses to a crime or have been involved in criminal activity. (A summary

document of the key findings is attached)

2. Aim of submission

This submission is focussed on protecting children in relation to the media and calls

for the inclusion of a section that addresses the rights of children in relation to the

media specifically rather than mentioning the media in relation to children under a

section of "Miscellaneous Matters".

MMP Submission on Children’s Bill July 2004 2

In doing so this submission examines the following areas:

• The Children’s Bill (referred to as the Bill from hereon) does not state the legal

implications of the publication of information relating to children’s court

proceedings which reveals or may reveal the identity of a child.

• Secondly, clarity is needed on who provides permission for the publication

of such information.

• Thirdly, that the Bill needs to re-iterate legal implications in the case of

contravention of the law which are clearly stated in the Child Care Act,

Section 154(3) of the Criminal Procedures Act and also the Sexual Offences

Bill to ensure that clarity and consistency in the application of the law.

• Fourthly, that the application of the prohibition is limited to children’s courts

proceedings and should extend beyond children’s court proceedings to

ensure that children receive the full protection of the law.

• Fifthly, that if the Bill is changed, the onus should be on the media to prove

that the publication of such information relating to children is demonstrably in

the best interests of the child.

• Lastly, that a clause is included that would extend protection to vulnerable

children otherwise not covered by the Bill

3. Comments

This submission has been prepared in consideration of the aims and intentions of

the Children’s Bill, stated as:

"To define the rights and responsibilities of children; to define parental

responsibilities and rights; to determine principles and guidelines for the

protection of children and the promotion of their well-being; to regulate

matters concerning the protection and well-being of children; to consolidate

the laws relating to the welfare and protection of children; and to provide for

matters connected therewith"

This submission also draws on the Constitutional Clauses which apply to children,

especially section 28 (2) "the child’s best interests are of paramount importance in

every matter concerning the child."

This submission operates on the assumption that the Bill is to be read and used by

the general public and the media. As such, it is important that it is clear and easy to

understand.

MMP Submission on Children’s Bill July 2004 3

Finally the submission is made on the assumption that the media in a democratic

society has a particular role and responsibility to fulfil in relation to reporting n

children. Not only does this necessitate the protection of children but also their

participation in decisions that affect them.

An analysis of the Bill reveals that the only aspect of the Bill currently relating to

children and media is "Miscellaneous Matters" under section 74

Publication of information relating to proceedings

74. No person may, without the permission of a court, in any manner publish

any information relating to the proceedings of a children’s court which reveals

or may reveal the name or identity of a child who is a party or a witness in the

proceedings."

While the Bill places a clear prohibition on the publication of information without the

permission of a court, relating to the proceedings of a children’s court which reveals

or may reveal the name or identity of a child who is a party or a witness in the

proceedings, the Bill does not however state the consequences in the event such

information is published. In order to provide clarity the Bill should state whether the

publication of such information is a criminal act, is contempt of court and/or the

penalties applicable.

The Criminal Procedures Act and the Sexual Offences Bill clearly state the

implications for the publication of information without the permission of a minister.

While the former states the penalty for breaking the law is a fine of R1500 or one

years imprisonment. The Sexual Offences Bill proposes that in the case of

contravention of the law relating to the publication of information, the punishment

would be increased to a fine or three years imprisonment or both. The MMP

therefore submits that the Children’s Bill is brought in line with the Criminal

Procedures Act and the Sexual Offences Bill in terms of stating clearly the penalties

applicable in the case of contravention of the law.

Section 74 of the Bill, states "no person may, without the permission of a court, in

any manner publish information relating to the proceedings of a children’s court… ".

It is important that the Bill provide clarity on the individual or body endowed with

the power to give permission, whether this is the magistrate or another individual. In

this regard the Child Care Act states "information provided must be approved by the

minister/commissioner." Such provision is essential as was seen in the case of

Happy Sindane. In this particular case it was the police that provided information.

That should not have been the case, however due to the lack of clarity practitioners

were unaware of who is mandated with the responsibility to provide this

information.

MMP Submission on Children’s Bill July 2004 4

The MMP maintains that based on the current section 74, alone the Bill is insufficient

in offering protection to children in relation to the media. MMMP submits therefore

that an additional clause should be added. The inclusion of a section on media

rather than mentioning children in relation to the media under the section of

miscellaneous matters would strengthen children’s right sin relation to the media.

It is also useful in this assessment of the Bill that a comparison is made with what

exists currently in the law.

The Child Care Act of 1983 section 8 states that:

No person shall publish information relating to children’s court proceedings.

The identity of the child involved shall not be revealed.

Publicity should serve the interests of the child

Information provided must be approved by the minister/commissioner.

And the Criminal Procedures Act section 154 (3) states

no person shall publish in any manner whatever information which reveals or

may reveal the identity of the accused under the age of 18 years or of a witness

at criminal proceedings who is under the age of 18 years

The Child Care Act re-iterates the Criminal Procedures Act in section 154 (3). The

Child Care Act also goes further by saying that where there is going to be publicity it

should serve the best interests of the child. The Bill should also re-iterate what is

said in the Criminal Procedures Act to ensure clarity and consistency in the

application of the law. In this respect it is important to contextualise the Bill. A

concern about restricting coverage of children in law s that not only does it offer a

potential claim of a restriction of freedom of expression but it may also serve to

discourage media from reporting on children and children’s court proceedings. It is

imperative that in building on the rights of the child that critical children’s stories are

told by the media. The media should not therefore be prevented from reporting on

children’s courts but should rather be encouraged to report on children in a

responsible manner.

The MMP proposes that the Bill include an additional clause which states that in

instances where media reports reveal or may reveal the identity of a child the report

shall demonstrably be in the best interests of the child. Some suggested criteria to

determine whether the publication of information is in the best interests of the child

are :

• That the publication of information does not violate the child’s constitutional

rights to privacy and dignity and/or

• Place the child at risk or danger

• Result in the social marginalisation of the child

MMP Submission on Children’s Bill July 2004 5

Given the emphasis of children’s rights in the Constitution the MMP submits that

when reporting on children the publication of information about vulnerable children

must be demonstrably "in the best interests of the child". A vulnerable child, in this

context can be understood to be a child who has been affected by HIV/AIDS,

poverty, trauma, street children, child labourers, children with disabilities as well as

children who work as sex workers. While it s acknowledged that the media plays an

important role in highlighting the plight of certain children it is imperative that the

media demonstrate a respect for children’s rights to dignity and privacy when

reporting on them. With reference to research findings of the (ECM) project, it was

found that the media tends to name and identify children affected by HIV/AIDS.

Revealing the identity of children affected by HIV/AIDS often has dire social

consequences for the child considering the social stigma attached to the disease.

The MMP therefore submits for the inclusion of a clause that would extend its

protection to vulnerable children.

The Children’s Bill will replace the Child Care Act of 1983. The Bill, the previous Child

Care Act and section 154(3) of the Criminal Procedures Act and the Sexual Offences

Bill all have the aim and intention to protect children and to ensure the best interests

of the child are paramount in legal matters concerning children.

The Children’s Bill provides for the protection of children, which could be applied to

the media. In terms of section 74 the protection of children is confined to reported

cases and legal proceedings and does not protect children in relation to the media

outside of these confinements. MMP submits that this clause is amended to protect

children in court cases and outside of legal proceedings to ensure that children

receive the full protection of the law.

By amending the wording from "court proceedings" to "criminal proceedings" this

would extend the application of the clause over a greater period of time and would

be more effective in protecting the identity of a child and his/her best interests.

Criminal proceedings are understood to start the moment it is clear that a crime has

been committed, or where a charge has been laid. Court proceedings are limited to

events that take place within a court. The difference is that the former has broader

application geographically while the latter’s geographical application is limited to the

courtroom. The previous Child Care Act provided for the protection of the identity

of all children whether or not the case has been reported or gone to court, whereas

the Children’s Bill is confined to reported cases.

The Bill also does not effectively allow for the publication of any information that

relates to a children’s court which reveals or may reveal the name or identity of a

child who is a party or a witness in the proceedings. The Child Care Act on the

other hand states that information may be published provided it serves the best

interests of the child. A blanket prohibition prevents the publication of information

regarding children’s court proceedings. There are however those cases where the

publication of information could improve the status of children’s rights in general

MMP Submission on Children’s Bill July 2004 6

and deemed to be in the child’s and the public’s interest. When faced with the

dilemma of whether it would be in the public’s interest, in such cases the best

interest of the child should take precedence. In this respect cases should be

assessed on an individual basis to determine whether publicity serves the best

interests of the child.

Furthermore in line with the aims and intentions of the Children’s Bill it is pertinent

that the measures taken to protect the identities of children involved in criminal

proceedings also be extended to children affected by HIV/AIDS. The Bill itself

contains a comprehensive section that provides for children affected by HIV/AIDS.

Clauses in the Children’s Bill, and the Criminal Procedures Act are inadequate in this

respect and the MMP therefore recommend that a provision is included in the Bill to

provide for the protection of the identities of those children affected by HIV/AIDS.

The MMP would be happy to help in the development of such a provision.

Positive elements of the Bill are the inclusion of children’s participation that is in line

with the aims and objectives of the United Nations Convention on the Rights of the

Child.

61. (1) The presiding officer in a matter before a children’s court must –

(a) allow a child involved in the matter to express a view and preference in the

matter if the court finds that the child, given the child’s age, maturity and stage

of development, is able to participate meaningfully in the proceedings and the

child chooses to do so;

(b) record the reasons if the court finds that the child is unable to participate

meaningfully in the proceedings or is unwilling to express a view or preference

in the matter; and

(c) intervene in the questioning or cross-examination of a child if the court

finds that this would be in the best interests of the child.

4. Conclusion

In conclusion, MMP believes that the recommendations as outlined in this

submission correspond with the aims and intentions of this Bill and section

28(2) of the Constitution to ensure the protection and the well being of

children. Based on our interest relating to children and the media the MMP

would welcome the opportunity to make an oral submission to the

Parliamentary Portfolio Committee on Social Development. MMP would also be

happy to assist the Committee with any media and children related issues.

Please contact:

Bharti Daya or William Bird

Tel: 011 788 1278

Fax: 011 788 1289

Email: mmp@wnapc.org