FPB decision smacks of censorship

2012-06-03 10:00
The decision of the Films and Publications Board to classify The Spear as 16N is an extraordinary and unprecedented move that should greatly concern every citizen of South Africa.

Although we took The Spear (16N) down in the exercise of our editorial discretion, we remain firmly of the view that there is no basis for any court – let alone the board – to conclude to prevent the public from seeing it.

Reasonable people can differ on the appropriateness and tastefulness of The Spear, but it cannot seriously be contended that it ought to have been classified under an Act dealing primarily with issues of pornography and the like.

Although City Press has not yet received the full Classification Committee Report – despite promises to the contrary in the news conference on Friday morning – it already appears clear that the decision was patently flawed in at least three respects.

First, when the board first called us to a hearing we received only four hours’ notice.

During the course of that hearing it emerged that the CEO of the board, who was chairing the hearing, had sent tweets bearing directly on the matter at hand.

After she was forced to recuse herself at the request of City Press, it emerged that only the board was present – not the classification committee that was meant to consider classifying the picture concerned.

There was moreover constant uncertainty about who the complainants were and how their complaints had been made.

At the first hearing on May 22 we were told that the classification committee had not yet been appointed, but at the second hearing we were told that the committee had already been appointed on May 21.

At the second hearing we asked for clarity on whether there was one formal complaint or two.

The board said one.

But when it emerged that the complaint mentioned only the Goodman Gallery and not City Press, a second formal complaint was miraculously produced, without explanation.

As City Press’ counsel said during the hearing: “We wish to place on record our disquiet that things don’t seem to quite add up.”

Second, the board’s approach to City Press was plainly unlawful.

The most basic principle of law is that no public body may act beyond its powers.

The board has no power over bona fide newspapers because Parliament (thankfully) said so expressly when it enacted the Films and Publications Act.

After lengthy argument, the board was eventually forced to admit that this was the case. Yet it refused to take the inevitable step of dismissing the complaint against City Press.

Instead the board appears to have adopted the view that it was still entitled to rule on the merits of the complaint and then lay a complaint with the press ombudsman.

There is no basis in law for this approach and the board’s unwillingness to dismiss the complaint raises serious questions about whether it was ever prepared to approach the matter fairly and with an open mind.

Moreover, the board’s attempt to rely on the “best of children” as a justification for acting unlawfully is without substance and makes a cynical mockery of the very rights that the board is meant to be striving to protect.

Finally, and most alarmingly, the board’s decision to classify the picture as 16N – in other words not suitable for persons under 16 – is entirely unsustainable as a matter of law and logic.

To reach this conclusion the board had to agree that the image could be “disturbing or harmful to or age-inappropriate for children” under 16.

There was no evidence before the board – none – to that effect. Nor can it seriously be contended that this approach was justifiable.

Whatever one’s views of The Spear, it contained no sexual conduct, no violence and indeed no vulgar language. It was moreover a work of art.

One has to ask: will the board now seek to classify all art and history books containing a picture of Michelangelo’s statute of David?

What about the nudes painted by Picasso, Matisse and Goya?

Unless it does so we will be left with no option to conclude that this decision had little to do with the merits of the complaint and everything to do with other impermissible considerations.

City Press’s experience before the board is a chilling warning of the dangers of subjecting freedom of expression or the media to any statutory body.

The board was constantly at pains to emphasise that it was not a “censorship board”.

We regret that this is precisely how it acted.