 who is, or who is depicted as:
- being, under the age of 18 years, engaged in sexual conduct;
- participating in or assisting any another person to participate in sexual conduct; or
- showing or describing the body or parts of the body of such a person in a manner or in circumstances which amount to sexual exploitation.
In order to be found guilty of the 1996 Act's criminal prohibitions, the person accused of contravening it must have done so knowing that the publication or film is prohibited.
The constitutionality of the provisions of the 1996 Act relating to the possession and distribution of child pornography were challenged in De Reuck v Director of Public Prosecutions, Witwatersrand Local Division and Others 2004 (1) SA 406 (CC). The Constitutional Court unanimously held that, while the criminalisation of, inter alia, the possession and distribution of child pornography amounts to a limitation of the rights to freedom of expression and privacy, the infringement of these rights is reasonable and justifiable. The constitutionality of these provisions of the 1996 Act was therefore affirmed.
It should be noted that, while the possession of child pornography is prohibited, the prohibition on possession does not apply to the other XX publications or films. This was a radical departure from the approach of the 1974 Act, which contained wide search and seizure provisions to enforce the anti-possession provisions.
The Films and Publications Act was amended in 2010 by a controversial new Films and Publications Amendment Act, No. 3 of 2009. The main objective of the amendment is to make provision for the prohibition of child pornography and for matters incidental to the more effective investigation and prosecution of child pornography offenders.
The provisions of the Amendment Act require that publications, excluding newspapers who subscribe to the South African Press Code, be classified by the Board before they are published if they contain sexual conduct. The Amendment Act has been heavily criticised by the media on the basis that it has the potential to reintroduce censorship.
In 2011, Print Media South Africa and the South African National Editors' Forum launched a legal challenge to the Amendment Act. They argued that the provisions:
- arbitrarily exclude magazines from the exemption granted to newspapers;
- should not apply to publications aimed at educating the public; and
- that they are otherwise unconstitutional in that they amount to a prior restraint on publication.
The application was successful in the High Court and resulted in certain provisions of the Amendment Act being declared unconstitutional. The High Court finding has been referred to the Constitutional Court for confirmation.
Promotion of Access to Information Act
The Promotion of Access to Information Act, No. 2 of 2000 (the Information Act) gives effect to the right of access to information, contained in section 32(1) of the Constitution.
The Information Act allows for access to information, held by public bodies, private bodies and persons, which is required for the exercise or protection of rights. Members of the media are entitled to rely on the Information Act to request information and to use the legislation to resist claims for disclosure of its working papers and sources.
Where a request is made of a public body, it must generally respond within 30 days. The presumption is that the documentation must be provided and the public body can only refuse to provide it if a recognised ground of refusal applies. Grounds for refusal could include the facts that the documents contain confidential information or cover issues of national security.
A request to a private body (such as a media company) must include proof that the document is required for the exercise and protection of the requestor's rights.
Section 14 of the Constitution provides that "everyone has a right to privacy". "Everyone" includes corporate entities and natural persons. Although the right to privacy is entrenched in the Constitution, there is currently no privacy or data protection s