ations. The result of this process was the Films and Publications Act, No. 65 of 1996 (the 1996 Act), which came into force on 1 June 1998.
The 1996 Act established two bodies known as the Film and Publication Board and the Film and Publication Review Board. The 1996 Act:
- sets up a structure through which any films that are intended for distribution and exhibition, and any publication in respect of which complaints have been made, are required to pass; and
- provides for the classification of publications and films in accordance with the material that is contained therein. The schedules to the 1996 Act set out the criteria upon which such classifications are based. The criteria are specific and were designed to create greater clarity in the area of censorship.
The two types of publications and films which are subject to the greatest restrictions are the XX and X18 ratings. Schedule 1 sets out the criteria for an XX rating for publications which include:
- a visual presentation, simulated or real, of explicit violent sexual conduct;
- bestiality, incest or rape;
- explicit sexual conduct which violates or shows disrespect for the right to human dignity of any person or which degrades a person or which constitutes incitement to cause harm; or
- the explicit infliction of, or explicit effect of extreme violence, which constitutes incitement to cause harm.
The 1996 Act prohibits the distribution of publications or films that have been classified as XX, as well as the advocacy in a publication or film of hatred based on race, gender or religion and that constitutes incitement to cause harm, except in the case of a publication or a film of a bona fide scientific, dramatic, documentary or artistic nature (this exception does not apply to child pornography).
In addition, a person commits an offence if he or she is in possession of, creates, produces, broadcasts or distributes a publication that contains child pornography. Child pornography is defined broadly as covering any image, whether real or simulated, of a person 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