Porn Channels' Licences Should Be Denied - 6 December 2011

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The Christian Action Network has learned with great concern of On-Digital Media's plans to broadcast three porn channels in South Africa via satellite decoders.

It was wrongly reported by The Rapport on Monday that "there is nothing that the authorities can do about it".

The Christian Action Network was informed by ICASA that they had until Wednesday to send a submission and have now done so. CAN also requested that ICASA grant concerned citizens extra time to send in submissions, but this was denied.

CAN submitted that ODM should not be granted a licence for the following reasons:

 

ICASA's Constitutional Obligations

ICASA has Constitutional obligations to "regulate broadcasting in the public interest" (Section 192 of SA Constitution).

Not in Public Interest

"In no way would these porn channels be 'in the public interest'," says Taryn Hodgson, International Co-ordinator of the Christian Action Network.

 

"Porn channels with pin codes and so-called locking devices would present very little challenge to an increasingly 'tech savvy' computer generation."

"We have reports from Safeline and the Teddybear Clinic who counselled children who watched porn films screened on E-TV. Some of these children even sexually abused other children as a result."

"Pornography is as addictive and destructive as drugs. Drugs are illegal, porn should be too."


"Should On Digital Media, the holding company of  TopTV, be granted a licence by ICASA, we will urge our supporters to boycott TopTV."


"Freedom of expression is not a pre-eminent right"

Jody Kollapen, Chair of the SA Human Rights Commission, believes the right to freedom of expression should also be weighed against other constitutional rights. �Clearly the media rely on Section 16, media freedom, freedom of expression, and I think that�s important. But I think, in the context of South Africa, human dignity, equality, are just as important, and those are not just constitutional rights, they are constitutional values. They are found in Section 1 of the Constitution, that the Republic of South Africa is founded in the following values: human dignity, achievement of equality, and the advancement of human rights and freedoms. One of the problems is that we sometimes seek to elevate media freedom above those values. Justice Kriegler, in the E-TV vs Mamabolo judgment, said that in South Africa freedom of the media or freedom of expression is not a pre-eminent right, and we have to debate how it relates to other rights of equality and human dignity. (Jody Kollapen, Chair, SA Human Rights Commission, Quarterly Roundtable Series, 2008.)

Women's Constitutional Rights
Not only does pornography infringe on the constitutional rights of children to be protected from harm, it also discriminates against the rights of women to dignity, equality and protection from hate speech. Pornography often depicts women in degrading, humiliating ways and as sex objects - existing only for men's sexual pleasure. Women are also often called derogatory names and subject to violent acts.

Children's Rights Paramount
In 2010, the Justice Alliance of South Africa (JASA) drew up an Internet Pornography Bill in response to a call from the Deputy Minister of Home Affairs to the Law Reform Commission to look into the possibility of banning pornography in the public sphere. The Bill proposes blocking all pornography on the internet on Tier 1 Internet Service Provider level (highest national level).

In the Legal Opinion drafted by JASA in support of their proposed Bill, John Smyth, QC, Director of JASA summarised the legal argument for the Bill, "Internet pornography is such a readily accessible evil for children, that the Constitutional Court, if the Bill were challenged, would be bound to hold that the section 28 obligation to protect at all costs the best interests of children would trump the rights to freedom of expression and privacy."

Viewing Porn a "Fringe Right"

JASA further argued, "Notably in the case of De Reuck v Director of Public Prosecutions the Constitutional Court, while dealing with what freedom of expression entails, held, with (regards to pornography), that 'expression that is restricted is, for the most part, expression of little value which is found on the periphery of the right and is a form of expression that is not protected as part of the freedom of expression in many democratic societies.' The right to view/possess pornography has been regarded (by the Constitutional Court) as peripheral in nature, and thus the [Internet Pornography] Bill's effect of only limiting a portion of the access to this right must be viewed as even more permissible. It is a fringe right and not at the core of the constitutional right to the freedom of expression."

FPB's statements regarding DSTV's Proposed Porn Channel in 2010:

Last year The Film and Publications Board (FPB) issued the following press statement (www.fpb.gov.za) in response to DSTV's decision not to launch their proposed porn channel:

"The Film and Publication Board (FPB) welcomes the decision taken by Multichoice against the possible launch of a pornography channel. The decision follows a number of interventions made by the Film and Publication Board and a number of stakeholders (including state institutions and civil society groups) who have the best interests of children at heart. This is indeed victory for the gender and children's rights movement; and members of the public at large. 

"The Film and Publication Amendment Act, 2009 prohibits the distribution/broadcasting of hardcore pornography (films classified X18) on public platforms; and makes it very clear that such films should only be distributed via licensed Adult Shops. It is against this legislation that the FPB has in the past few weeks vehemently opposed Multichoice."

"'We are elated that the increased possibility of prematurely exposing children to adult content has been eliminated'", said Ms Yoliswa Makhasi, Chief Executive Officer of the FPB. 'The launch of this channel would have created a scenario where children could have easily accessed undesirable content. It is our view that such content should only be accessible to adults via specific channels, as regulated by the FP Act', she continued."

BCCSA Code on X18 Material

The Broadcasting Complaints Commission Code published in 2011 allows the broadcast of any pornographic material, except for 'explicit sexual conduct'(X18) and XX material (child abuse images, incest, rape, bestiality, 'explicit sexual conduct which violates or shows disrespect for the right to dignity of any person', 'explicit infliction of sexual or domestic violence' and 'explicit sexual conduct which constitutes incitement of, or promotes harmful behaviour').

 

Whilst the BCCSA is a self-regulating body, the Code should at least inform ICASA's decision.

Sexual Offences Act
According to Section 19 the Sexual Offences Amendment Act 2007, it is a criminal offence to expose a child to any material which meets the definition of porn in the SO Act. This should surely inform ICASA's licencing decisions and the Broadcasting Code.

International Protocol Obligations

International Protocols such as The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) of 1979 ratified by SA in 1995, the Protocol to the African Charter on Human Rights and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol), ratified in 2005 and the UN Beijing Declaration of 1995 uphold the dignity of women.


Stereotypes
Article 5 of CEDAW says "State Parties shall take all appropriate measures... To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices... and all other practices which are based on...stereotyped roles for men and women."

 

Effective Measures
The African Charter not only gives recognition to a woman's right to dignity but also obliges state parties to adopt and implement measures to ensure the protection of every woman's right to respect for dignity. Article 12(b) says "State parties must eliminate all stereotypes in...the media that perpetuate such discrimination." Article 13(m) says "States Parties shall take effective legislative and administrative measures to prevent the exploitation and abuse of women in advertising and pornography."

The Beijing Declaration says in Article 24, "state parties should take all necessary measures to eliminate all forms of discrimination against women."

"We therefore believe that in the light of the above international obligations, legislation cited and Broadcasting Code obligations, any licence applications for porn channels in South Africa should be rejected by ICASA," says Hodgson.

CONTACT: International Co-ordinator of the Christian Action Network, Taryn Hodgson on 072 215 4801 or 021-689 4480, E-mail: This email address is being protected from spambots. You need JavaScript enabled to view it. .

Christian Action P.O.Box 23632 Claremont 7735 Cape Town South Africa [email protected] - 021-689-4481 - www.christianaction.org.za
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