18 MAY 2007

During discussions on the above bill it became apparent that there is confusion as to whether the exemption for newspapers contained in section 22(3) also exempted newspapers from the provisions of section 27, which criminalises the possession of certain publications and films. Various conflicting legal opinions were given in this regard. Broadcasters have agreed that they are subject to the provisions of section 27.

In order to remove any uncertainty. the following is recommended:

1. The exemptions for both the printed media (section 22(3» and broadcasting media (section 23(3» should be retained - thus complying with section 16 of the Constitution;

2. In order to provide legal certainty that newspapers are not exempt from the provisions contained in section 27 relating to child pornography, the words "Save for the provisions of section 27" should be inserted at the beginning of section 22(3).

3. It should be noted that in terms of section 22(1) newspapers that are researching child pornography could then apply to the Board for an exemption from the provisions of section 27.

Clearly the whole structure of the amendment bill will then have to be reconsidered if section 27 is retained in its present form. We would also recommend that the schedules are retained in their present form which would require the redrafting of the amendment bill.

We would also recommend that the appeal provisions and provisions allowing for legal representation. as argued by Adv van Rooyen of ICASA (who drafted the Act) should be retained.

We also propose that the hate speech clause is amended to follow the section 16 of the Constitution: “the advocacy of hatred that is based on race, ethnicity, gender or religion, and which constitutes incitement to cause harm.”

There are various other provisions in the amendment bill that require attention and will be dealt with by us in the committee.