Our Constitution openly declares that South Africa is a state founded on the value of non-racialism. It is not only that racial discrimination is at odds with the Constitution. Non-racialism means that race is not something to be used to determine our value as human beings. It is a recognition of the fact that no one is better or worse because of the colour of their skin.

The immediate problem with race based affirmative action is that it rests on a system of racial classification. It requires us to ask the same repulsive questions that were asked during apartheid. How much ‘blood’ from a particular race is needed to be ‘black’? Is one ‘black’ parent or grandparent enough to be considered ‘black’? Would the same test apply to determine someone’s ‘whiteness’? Race occurs on a spectrum and allowing bureaucrats to allocate burdens and benefits based on arbitrary criteria for classification is repugnant.

Some analysts claim that the employees of companies and institutions ought to represent the racial composition of the rest of the population proportionally. Hence, if 80% of the population is made up of those designated as ‘black’, then the same percentage of ‘blacks’ should be working in all sectors and levels of the economy.

However, racial clustering in certain sectors is not necessarily connected to past discrimination or injustice. Industries can become dominated by particular ‘racial groups’ by chance. In California 90% of donut stores became owned by Cambodians randomly and there is thus nothing unjust in them having a disproportionate share in the industry. If racial quotas were applied, then almost all the Cambodians running donut stores would be forced to sell their businesses to members of other racial groups.

In the Western Cape, ‘coloured’ people working in the Department of Correctional Services have been deprived of promotions. This was done on the basis that they were ‘over-represented’ in the workforce, measured against the small percentage of ‘coloureds’ living in South Africa as a whole. This type of dispossession on the grounds of race smacks of the worst kind of racist social engineering.

A further issue with race-based affirmative action is that it is necessarily at odds with selecting the best candidate for the job. It is not the case that people of certain races are less qualified than others- such a claim is obviously false and racist. However, the more weight that a policy places on race the less it places on merit. The same would apply if preference were applied on the basis of some other physical feature like height or hair colour.

Ironically, the main victims of the current system are the poor ‘black’ and marginalised majority. The indigent are reliant on the state for many basic services such as healthcare and education as they simply cannot afford private schooling or private hospitals. The implementation of racial quotes undermines the quality of government services and the poor have no choice but to bear the brunt of the very policies intended to help them. South Africa’s priority should be to provide quality education and training to everyone to prevent disadvantage being entrenched. Unfortunately, given the dismal state of our schooling, it is evident that this essential means of transformation is being overlooked.

Race-based affirmative action also undermines the achievements of those it seeks to benefit. ‘Black’ individuals who were employed because they were the best qualified candidates are forced to carry the stigma that they were chosen only to fulfil a quota.

An affirmative action policy should be designed to benefit those that are actually disadvantaged and race is no longer an accurate proxy for disadvantage. While this may have been the case immediately after the political transition, there are now a number of upwardly mobile ‘black’ people who are not disadvantaged. A system that affords preferential employment on the basis of race instead of looking at actual disadvantage creates an elite class of people who are afforded opportunities to the detriment of those in genuine need. Those who have attended the best schools and universities and happen to be ‘black’ will be selected over ‘blacks’ that come from impoverished backgrounds.

Fortunately, there is an alternative. Non-racial affirmative action affords everyone with an equal opportunity in the workplace. It requires all insidious forms of discrimination to be rooted out of the hiring process and the workplace. It encourages employers to reach out to marginalised groups and help them enter professions from which they were previously blocked.

It implores us to re-evaluate conservative notions of ‘merit’. If a child obtains a ‘C’ for Matric maths in an under-resourced township school, this may well be worth more than an ‘A’ helped along by hours of expensive extra tuition from a top private school. Of course, marks are only one indicator and no guarantee of a good employee. A strong work ethic and determination in the face of hardship are highly desirable qualities for employers and they should be taken into account when determining the best candidate.

In appropriate cases, it may be desirable to give additional preference to those that are disadvantaged. Disadvantage can be determined with reference to a bundle of socio-economic indicators that take into an individuals’ financial and educational background.

The further advantage of this system is that it allows us to track transformation. A person can emerge from poverty and become successful, but they cannot be transformed into another race. Beneficiaries won’t have to carry the stigma of being given a leg up because the assistance is not tied to something permanent and overt like skin colour.

Mark Oppenheimer is a practicing advocate and member of the Johannesburg Bar.

Cecelia Kok holds a BA LLB (cum laude) and works for the Friedrich Naumann Foundation for Freedom.

This article was originally published in City Press in December 2014.

Our Constitution draws a distinction between deprivation and expropriation of property rights. Expropriation occurs when the state dramatically interferes with an owner’s property rights. The state may only expropriate property for a public purpose or in the public interest. It is also required to pay the owner compensation that is fair and equitable. For example, if private land stands in the way of building a new road, the state may expropriate this property as long as it compensates the owner. In essence, expropriation is a form of deprivation of property accompanied by compensation.

The investment bill

Any mention of deprivation of property not amounting to expropriation should set off alarm bells, since this means that no compensation is owed by the state. Section 8(2)(d) of the Investment Bill states:

‘(2) The following acts…do not amount to acts of expropriation:

(d) any measure which results in the deprivation of property but where the State does not acquire ownership of such property provided that –

(i) there is no permanent destruction of the economic value of the investment; or

(ii) the investor’s ability to manage, use or control his or her investment in a meaningful way is not unduly impeded.’

(our emphasis)

The main clause means that the state does not have to compensate an owner that has been deprived of property if the state does not become the owner of the property. A typical case would be where the state facilitates the stripping of ownership from one person in order to benefit a third party.

The sub clauses create two limitations to the main clause. However, they fail to provide property owners with much protection.

In (i), the phrase ‘no permanent destruction of the economic value of the investment’ is troubling, since it is the economic value to the investor that should concern us, not the value of the object itself.

In (ii), the phrase ‘in a meaningful way’ creates uncertainty. The state could limit an owner’s use of his property and claim that the limitation is justifiable on the grounds that the owner still has meaningful use of the property. Furthermore, the word ‘unduly’ is problematic as it suggests that even if an owner’s ability to exercise his rights over his property is infringed, this may not trigger a need for recompense.

Furthermore, the bill does not require the state to meet both hurdles, since the clause are separated by an ‘or’ not an ‘and’.

What constitutes ‘property’ for the purposes of this Bill?

The act targets all commercial investments, including those made before the act comes into operation. The terms ‘investment’ and ‘property’ appear to be used interchangeably. All kinds of property will be affected, from immovables (flats and houses) and movables (cars and laptops) to intellectual property (authors and artists rights) and shares held on the stock exchange.

The Practical Effects of the Bill

Imagine that you buy a residential house as an investment that produces rental income. If the home is in a neighbourhood where there is no community centre, the state could choose to transfer ownership of your property to the community. The economic value of the property would remain the same, despite you no longer having any right to it. You would no longer be able to use, manage or control the property, but the state could argue that these impediments to your rights are not undue because the community has benefitted from the newly acquired property. Since there is no acquisition of the home by the state, no compensation would be payable and you would have to forfeit your house in return for nothing.

Where to from here?

If the bill is enacted and becomes part of our law our courts may deem it unconstitutional for two reasons.

First, it could be struck down on the basis that it unjustifiably limits an owner’s right to property.

Second, the courts could apply the doctrine of constructive expropriation. The doctrine applies in cases where the state deprives an owner of his property without becoming the owner itself. Much like the doctrine of constructive dismissal in labour law, constructive expropriation favours substance over form. The property owner is either awarded compensation or their property is restored to them.

Conclusion

We have argued that the bill poses a series threat to the rights of property owners. We hope that the bill is withdrawn or amended before it is challenged in the courts. In its current form, it creates legal uncertainty that is sure to discourage both foreign and local investment. If the state cares about economic growth and job creation it should reconsider passing the Investment Bill.

Mark Oppenheimer is a practicing advocate and member of the Johannesburg Bar. He has represented newspapers that are threatened by defamation suits, individuals that were wrongfully arrested by the police and employees that have been unfairly dismissed.

Cecelia Kok obtained a BA LLB (cum laude) from WITS University and now coordinates the Friedrich Naumann Foundation for Freedom’s work with local and international think tanks in South Africa. She has a specific interest in rule of law issues and property rights.

This article was written in the author’s private capacities and originally published in Business Day in August 2014.

PARLIAMENT recently passed a bill that will have a devastating effect on property rights and foreign investment if it is signed into law by President Jacob Zuma. In terms of the Private Security Industry Regulation Amendment Bill, a security service provider will not be allowed to operate its business unless it is 51% owned and controlled by South African citizens.

The police minister and a small committee will have the discretion to require a different percentage for particular security sectors. They will have the power to deviate from the general rule by requiring local ownership to exceed 51% in some cases and be lower in others. For example, locksmiths may be allowed to retain 60% of their shares, while guarding companies could be required to sell off 75% of theirs. Not only does this create uncertainty, it incentivises private dealing between the state and affected parties. The state may be willing to allow certain sectors to hold onto more of their shares if they agree to sell to people favoured by the government. Of course, if the sector objects, the minister can always threaten a complete deprivation of ownership.

Earlier versions of the bill gave companies five years to sell their shares, but now they will have to comply as soon as the bill comes into operation. It is unlikely businesses will receive a fair price if they are forced to sell overnight.

The state has sought to justify the law on the basis that it is required for the sake of national security. This pretext has been used by states around the world to deprive people of their rights. It was the reason given for the draconian measures in the “Secrecy Bill”. In this case, it has been intimated foreign-owned security companies could launch a coup unless they are forced to relinquish majority ownership.

There are three ways the bill could be attacked for being unconstitutional. First, in order for a law to pass muster, it must at least be rational. There is no reason to believe a foreign security company would have the desire or the means to pose a threat to national security. According to the Institute for Security Studies, “less than 10% of the local private security industry is foreign owned, and the 445,407 security officers registered as active are all South African citizens or have permanent resident status.

“They do not constitute a coherent, well-organised semi-military force. Rather, they are spread across 9,031 registered businesses, providing more than 20 different categories of security and services such as locksmiths, car guards, bodyguards and armed reaction teams.” In other words, it would be impossible for a foreign entity to organise a coup when it cannot use its own citizens and must rely on South Africans to help overthrow their own government.

Second, the bill breaches the right to equality guaranteed by the constitution. The Constitutional Court has already struck down legislation that arbitrarily restricts the rights of foreigners. In the case of the private security sector, there is no good reason to discriminate between foreign and locally owned companies.

Third, the constitution gives everyone the right not to be arbitrarily deprived of property. Depriving people of their property on the grounds that they were born outside SA is the epitome of arbitrariness. It is xenophobic and intolerable in a country founded on the principles of freedom, dignity and equality for all.

The bill is part of a broader legislative framework that seeks to deprive people of their property without paying compensation. The constitution provides for the payment of fair and equitable compensation in cases where the state expropriates someone’s property. But the Promotion and Protection of Investment Bill allows the state to hand over property to third parties without paying compensation. The government is testing the water with the security industry. If it succeeds, it will start targeting other industries. The end goal appears to be to emulate Zimbabwe’s Indigenisation Act, which requires 51% of all business to be owned by locals.

The security bill has already been passed by Parliament but it is sitting on Zuma’s desk waiting to be signed into law. He still has the power to refer it back to Parliament for reconsideration. If he fails to take this golden opportunity, it will be necessary to challenge the law in the courts. The Constitutional Court has the power to strike out the offending sections on the basis that they are unconstitutional. The process will be lengthy and will provide foreign investors with ample time to find other countries to start businesses and create jobs.

• Oppenheimer is a practising advocate and a member of the Johannesburg Bar.

Originally published in Business Day in August 2014

Credit providers have been faced with an unprecedented number of borrowers defaulting on their loans. In order to avoid the effect of the in duplum rule many lenders have initiated litigation proceeding against those in default. However this approach is costly for all parties involved; many borrowers are forced into liquidation and creditors are left with only a small percentage of the amount owed to them. It may be better for both parties to weather the current economic storm, and avoid the costs of litigation, by circumventing the operation of the rule via novation.

“Novation occurs whenever an obligation is discharged in such a manner that another obligation is substituted in its place.”[1] For example “when the parties to a contract agree to extinguish the existing debt and substitute a new debt in its place”[2] In general courts will refrain from inferring that novation has taken place, so it is important for the parties to make an express declaration that they intend to novate.[3]

It has already been established by our courts that it is impermissible for a lender to unilaterally convert arrear interest that is owing into capital in order to avoid the consequences of the rule.[4] It has also been held that “an agreement in advance to waive the rule leaves the debtor exposed to precisely those perceived evils which the rule is formulated to combat.”[5] However it also been indicated that novation may be a permissible way of legitimately converting interest to capital.[6]

In order for a novation to be valid, both parties must be aware of the new terms of the agreement and make a free choice to be bound by them. In a situation where a borrower has not paid the lender the amount that it owes, the lender is within its rights to sue the borrower in order to reclaim the outstanding debt. By presenting the borrower with the option to enter into a new agreement and set aside the existing agreement, the lender is expanding the choices available to the borrower. The borrower was originally faced with either paying the outstanding debt or defending itself against legal action. Now it has the added option of novation.

In addition to respecting the value of freedom of contract, there are three public policy reasons for upholding novated agreements. First, it will sometimes be the case that the borrower will be unable to pay the debt that it owes and it will have to be put into liquidation if it is sued. Widespread liquidations could entail an increase in unemployment and this would have an adverse effect on the economy. If novation is allowed this will be prevented.

Second, the novation would protect the credit record of the borrower. The novation would prevent the borrower from being blacklisted, which in turn would prevent the borrower from being denied credit in the future.

Third, the novation could confer a further benefit on the borrower by extending the time for repayment or altering the interest payable on the loan.

In order for a novation to be legally valid it is important for it to be performed at the correct time. For example if a lender lends R100 to a borrower at the rate of 10% per month and the borrower does not make any payments it will owe the sum of R200 after ten months. At this point the in duplum rule comes into operation. If the novation is entered into after the tenth month it would be impermissible for the new agreement to set the capital amount owed at a sum greater than R200, since this would amount to charging interest over and above the rule. “If the old obligation is void, the new contract will not create a valid novation.” [7]

A further consideration that needs to be taken into account is the type of interest that is charged. In the above mentioned example, interest was calculated in terms of simple interest. After the novation, if the interest rate remains at the rate of 10% per month the borrower will be required to pay R20 a month, whereas prior to the novation it was required to pay R10 a month. In effect the novation results in the borrower being required to pay interest on the original interest. In principle this should not be problematic if both parties are aware of the new result. However if the parties intend the new agreement to keep the monthly payment rate the same, the interest rate would have to be halved to 5%. This would have the effect of only requiring the borrower to pay R10 a month.

If a court where to find that a novation was legally impermissible on the grounds that it contravened public policy, it would not be the case that the lender would be unable to recover any money from the borrower. “If the negotiations do not result in a legally valid new debt, there is no novation. Hence, if the new contract is physically or legally impossible, the old obligation is not extinguished.”[8] This means that the lender would be able to recover the original amount owing, in addition to interest that does not exceed the in duplum rule.

Novation appears to be a suitable method for circumventing the rule without offending public policy. Unlike a unilateral conversion of interest to capital by the lender, novation upholds the value of freedom of contract since both parties must agree to the terms of the new agreement. Furthermore novation has the effect of protecting borrowers by preventing them from being liquidated or blacklisted for defaulting on loans. It also has the possibility of conferring the benefit of an extended repayment schedule or a reduction of the interest rate. Even if novation is found to be against public policy under the original agreement, the lender will be able to claim the amount that was owed, in addition to interest that does not exceed the in duplum rule.

Endnotes

[1] A. A Roberts, Wessels’ The Law of Contract in South Africa 2nd ed vol 2 (Butterworth & CO (Africa) LTD, 1951), para 2369

[2] (Note 1), Para 2375

[3] Ewers v The Resident Magistrate of Oudtshoorn (1880) Foord 32 at 35

[4] Pfeiffer v First National Bank of SA Ltd 1998 (3) SA 1018, at page 828

[5] Commercial Bank of Zimbabwe Ltd v M M Builders & Suppliers (Pvt) Ltd and Others and Three Similar Cases 1997 (2) SA 285 (ZH) A 1997 (2) SA, 322

[6] Pfeiffer v First National Bank of SA Ltd 1998 (3) SA 1018, at page 828

[7] (Note 1), Para 2380

[8] (Note 1), Para 2383

Originally published in Without Prejudice in June 2010

Bobby Motaung, the manager of Kaiser Chiefs and director of Lefika, took immediate action against the newspaper in an attempt to prevent them from publishing a follow up article. He contended that the first article implied that he was involved in the assassination of Mohlala.

Motaung sought an interim interdict that would prevent The Sunday World from publishing any material that could be construed as defaming him. In order to obtain this gag order, he had to prove that he had a prima facie right to the order, that he was in danger of suffering injury and that he had no alternative remedy. Furthermore he had to convince the court that the balance of convenience favored granting the interdict.

Motaung argued that he would be placed in danger by friends of Mohlala, who may take the law into their own hands and murder him in an act of vengeance. Granting the interdict would save his life and the newspaper would only suffer the mild inconvenience of temporarily not being able to report on the issue.

Matthew Welz argued convincingly on behalf of the newspaper, that Motaung’s concerns were little more than baseless speculation. There was no indication that anyone would resort to taking vigilante action against Motaung after reading the first article, which meant that there was no reason to think that a follow up article would have such an effect either. More importantly he argued that granting Motaung an interim interdict would have the effect of permanently silencing the newspaper. Given that the reporting of news is extremely time sensitive, a temporary gag order would have the effect of killing the story for good. Furthermore Motaung would have the alternative remedy of suing the newspaper for defamation.

After considering the arguments of both parties, the court refused to grant the gag order and held that a reasonable reader would not come to the conclusion that the first article implied that Motaung was involved in Mohlala’s assassination. The court quoted the case of Midi Television which states that:

“Mere Conjecture or speculation that prejudice might occur will not be enough. Even then publication will not be unlawful unless a court is satisfied that the disadvantage of curtailing the free flow of information outweighs its advantage. In making this evaluation it is not only the interests of those associated with the publication that need to be brought to account but, more important, the interests of every person in having access to information.”

In an ironic twist Mzilikazi Wa Afrika, the author of the first article, states that he had no intention of writing a follow up article, but Motaung’s efforts to silence him have prompted him to research the matter further.

The case brings to light issues of immense constitutional importance. At its heart lies the conflict between the right to reputation and freedom of expression. Shakespeare expresses the value of reputation with his immortal words “he that filches from me my good name/ Robs me of that which not enriches him/ And makes me poor indeed.” While it is undoubtedly the case that a good reputation is to be cherished, it cannot be afforded protection at all costs. Freedom of expression lies at the foundation of our constitutional democracy and it must be fiercely guarded to ensure progress and stability.

If Motoung’s gag order was granted it would have amounted to prior restraint of the media. Instead of allowing the truth to be settled in the marketplace of ideas, it would have been barred from seeing the light of day. When different points of view are stifled we lose the opportunity to challenge, reconsider and perhaps reaffirm our own ideas. However, when people are exposed to a range of conflicting opinions on a subject they are given the opportunity to exercise their rational faculties, weigh up the arguments on both sides and come to form their own beliefs on the matter.

Dario Milo of Webber Wentzel, who acted for The Sunday World, states that the gag order sought by Motaung was outrageous. “The gag as originally sought would have prevented the newspaper from writing anything defamatory about Motaung and his company in the future. This relief was clearly outrageous. It is particularly pleasing that the Court applied some of the prior restraint jurisprudence that clearly favours the right of the media to publish first and be damned, if necessary, thereafter.”

Newspapers and other broadcasters are often faced with attacks by those that would prefer to keep them quite. The impeding threat of litigation creates a chilling effect that encourages them to refrain from ruffling the feathers of those with power and resources. It is imperative that our legal system serves to facilitate the media’s role as watchdog, instead of forcing it to become a lapdog. In the Sunday Times case the court held that:

The role of the press in a democratic society cannot be understated. The press is in the front line of the battle to maintain democracy. It is the function of the press to ferret out corruption, dishonesty and graft wherever it may occur and to expose the perpetrators.

Given our unfortunate history of state sanctioned censorship, we must take heed of Judge Krieglier’s dictum that “we should be particularly astute to outlaw any form of thought-control, however respectably dressed.” Banning a text after it has been written is bad enough, but preventing it from being written is unconscionable.

Originally published by Without Prejudice in April 2009

Introduction
The literature on the moral, legal and social issues relating to pornography is extensive, but unfortunately a disproportionately small amount of effort has been expended on coming up with a satisfactory definition of the term. The quote at the top of this page seems to exemplify the frustration that many writers feel when they try to tackle the Herculean task of defining pornography. For there to be any real progress in our understanding of how to regulate pornography, it is imperative that there is a strong consensus about what is meant by the term. I will assess a number of rival definitions. In order to assess them in an adequate manner I will start off by clarifying what a satisfactory definition of the term needs to do, in addition to this I will also provide a paradigmatic set of examples of pornography and non-pornography.

Formulating a Good Definition
A good definition of pornography should largely concur with our intuitive understanding of what pornography is. However the possibility should be left open for it to reshape our intuitions and either exclude materials that were previously considered pornographic or include new materials as a part of what is deemed pornography. The definition should not be too broad and include objects that are clearly not pornographic, nor should it be too narrow and exclude objects that are clearly pornographic.

A vast array of materials have been described as pornographic throughout history. During the Victorian age images displaying a woman’s ankles were considered pornographic while those sorts of images are not considered pornographic today. It is not only the passage of time that has affected what is deemed pornography; different cultures often disagree about what pornography is. I don’t think it is only the case that some historical or cultural groups are mistaken about what pornography is, I would argue that a good definition should make allowance for the fact that different groups make differing judgments about whether particular objects are pornographic or not. I would argue that this can be achieved by acknowledging that the context that a particular image is placed in plays a role in deciding whether it is pornographic or not. This means that a good definition must be able to take social, historical and cultural contexts into account. For example a particular image of a woman’s exposed breasts may be considered pornographic if it is displayed in Playboy but not if it is displayed in a plastic surgeon’s portfolio.

People do not have homogenous sexual tastes, so the definition needs to able to factor in the diverse range of sexual preferences that people have. Not everyone is aroused by depictions of conventional heterosexual sex. For example shoe fetishists are sexually aroused by fondling shoes or viewing images of shoes.

There is a strong perception that art and pornography are mutually exclusive terms and that a piece of pornography by definition cannot have artistic merit. I dispute this on the basis that at least some of the materials that we ordinarily think of as pornography share features that we associate with works of art. The creator of a pornographic image can employ commonly recognized artistic techniques so that the image is composed and lit in a manner that is both aesthetically pleasing and sexually arousing. This means that a definition of pornography should make allowance for the fact that some works of art are also works of pornography.

The goal of the definition is to define the term pornography, but it must be emphasized that this is only a starting point. Pornography can be further categorized through the use of general descriptions as well as descriptions that refer to content. The terms soft-core, hardcore, violent, vulgar, empowering, degrading, educational and artistic would be a few general descriptions of pornography. The content could include reference to particular sexual acts as well as the sex, race, orientation and age of the parties performing in the pornography. A full description of a particular piece of pornography could be something like artistic interracial lesbian fist fucking granny porn.

Paradigms of Pornography and Non-Pornography
Pornography is material that is communicative by nature and it can take the form of a moving or still image, a written text or even an audio recording. The images found in the pages of Penthouse, Hustler are prime examples of what is generally considered to be pornography as are books like the Marquis de Sade’s The 120 Days of Sodom and movies like Deep Throat and Backdoor Sluts 9. However not all sexually explicit materials are pornographic. Representations of explicit sex acts can appear in documentaries, sex education booklets, medical diagrams, scientific journals and in works of visual or literary art in a non-pornographic way. It is of vital importance that a definition of pornography is able to distinguish between these two categories.

Rival Definitions of Pornography

Having established what a good definition of pornography ought to do, I will now proceed to examine a number of rivaling definitions of the term.

Sex and Profit
On one view pornography is “Any object mass produced and distributed with the purpose of marketing it for a profit by appealing to our sexual interests”

This definition fails on the basis that it produces results that are grossly counterintuitive. Firstly, it deems non-pornographic objects like sex toys, flavored condoms and lingerie as examples of pornography. Secondly a vast number of images that are generally considered pornographic are freely available on the internet. The definition would also imply that if a particular sexually explicit image was being sold on a website it would count as pornography but the same image would not count if it were being offered for free on another site.

Obscenity
On a second view material is pornographic if “(a) to the average person (b) the dominant theme of the material as a whole appeals to the prurient interest in sex; (c) the material [is] patently offensive because it [offends] contemporary community standards, relating to the description or representation of such matters…”

It must be noted that obscenity definitions can be understood as either descriptive or normative. In the first case it refers to what the average person is actually offended by and in the second, what the average person ought to be offended by.

Using a descriptive account would require one to conduct a survey that could determine which sexually explicit materials were considered to be offensive by the average person. The problem with this approach is that materials that relate to sex or have sexual content but are not ordinarily considered pornographic may be found to be offensive and be deemed pornographic by the definition. An example of this may be an advert for sex toys or images of the statue of David. Furthermore in societies where people are highly tolerant, magazines like Hustler and Penthouse would not be found to be offensive and by definition could not be considered pornographic. This would mean that pornography could be eradicated from a society by increasing tolerance towards sexually explicitly materials or by removing people that are offended by such material from the society.

The problem with the normative definition is that it lacks the necessary information to determine if a sexually explicit image is in fact pornographic. For example if a person were to view a sexually explicit image and not be offended by it, it would not be clear if the image was non-pornographic or if the viewer of the image was not decent or not easily offended. On the other hand if the image does offend it may be the case that the image is non-pornographic and the viewer is a prude. Some separate set of criteria would be required to determine what one ought to be offended by, but if this could be determined then that set of criteria would tell us what pornography is, not the obscenity definition, which means that the obscenity definition is either uninformative or superfluous.

Subordination
Dworkin and Mackinnon define pornography as “the sexually explicit subordination of women through pictures and or words.”

The claim can be interpreted in two ways. Firstly, that the image or text makes a general claim that women are inferior. Secondly, that the particular woman in the image or text is being subordinated. In the first case it is far from clear that any sort of general claim is being made by particular articles of pornography. A novel can depict a specific woman in a particular light but the characteristics ascribed to her apply to her only, not all women. For example in Hamlet Shakespeare represents the character of Ophelia as submissive and emotionally unstable, but this does not mean that all women are represented as sharing her qualities. In the second case it is also not clear that the actual woman in the image is being subordinated. I would argue that in many cases the woman is adopting the role of a sexual subordinate. For example, in the film Bitter Moon, Emmanuelle Seigner plays the role of Mimi, who is at times a sexually subordinate character. It would be absurd to conclude that Emmanuelle was actually sexually subordinate just because the character that she played was. Furthermore images of a woman actually being subordinated would often be better described as documentary images not pornography, as in the case of photographs of actual rape.

In order to further explain what is meant by their definition they provide a list of cases that they believe constitute pornography.

(i) Women are presented dehumanized as sexual objects, things, or commodities.
(ii) Women are presented as sexual objects who enjoy pain or humiliation.
(iii) Women are presented as sexual objects who experience sexual pleasure in being raped.
(iv) Women are presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt.
(v) Women are presented in postures or positions of sexual submission, servility, or display.
(vi) Women’s parts- including but not limited to vaginas, breasts or buttocks- are exhibited such that women are reduced to those parts.
(vii) Women are presented as whores by nature.
(viii) Women are presented as being penetrated by objects or animals.
(ix) Women are presented in scenarios of degradation, injury, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual.
The following clause was included in an earlier document: We also provide that the use of men, children, or transsexuals in the place of women is pornography.

Along with the types of sexually explicit magazines and videos that one would find in adult bookstores the definition adds other items to the list. Section (v) would include many of the images that we are used to seeing in adverts and magazines, of women displayed in a sexual way to sell a product or model clothing. Section (vi) would include works of art that only display a part of women’s body. Rene Magritte’s Le Viol would be a prime example since it depicts a women’s face made up of a set of breasts and a vagina. Numerous works of literature, including the Bible would be considered pornography by a few of the clauses. Section (ix) would include testimonies describing the sexual abuse of women and documentaries depicting harms caused by sexual violence.

With this in mind the producers and distributors of pornography would not only include the people that produce and sell copies of Hustler and other X rated material. Prominent writers, artists, filmmakers, mainstream cinemas and bookstores, art galleries and even museums would be included on the list. For these reasons the definition is unacceptably broad. However certain radical feminists might embrace the fact the definition is so broad because they aim to use the definition as basis for deciding what material ought to be censored or suppressed and they would prefer to censor a broader category of materials. If this move is made then it must be conceded that the definition of pornography that they provide is not a conventional one but rather a stipulative one.

Intention and Effect
Pornography could be defined as material that is intended to cause sexual arousal. The problem with this account is that an inept pornographer could take photos of people dressed in oversized and unflattering gym clothes with the intention of causing arousal without it actually doing so. A further objection is that people that create works of non-pornography have a vast range of intentions about their work, one of which may be a weak intention to cause the viewers of their work to become sexually aroused. The definition would have the implication of classifying a lot of what we do not ordinarily consider pornography as pornography.

Pornography could rather be understood as material that actually causes sexual arousal. Given the enormous range of sexual desires that people have this definition would make it possible for almost any form of expression to be considered pornographic. For example an ordontophiliac is aroused by the extraction of teeth and would presumably be aroused by photos of people having their teeth taken out. A capnologniac is aroused by watching someone smoke so the definition would have to include cigarette commercials as pornographic. Rea points out another shortcoming of the definition. Imagine that the latest issue of Hustler is being printed; it is then sent to the newsstands and read by someone until it causes that person to become aroused. On the definition the magazine can only be considered pornography at the moment that it causes the reader to become aroused, which seems grossly counterintuitive. Furthermore both of these definitions would consider a drug like Viagra pornography since Viagra is intended to cause arousal and it does actually result in such arousal.

While it is clear that the above definitions in this section generate counterintuitive results, I think that a modified definition can be produced that avoids their weakness. The definition takes the following form: Pornography is communicative material produced with the key intention of causing sexual arousal in the targeted audience, and it is reasonable to expect the material to succeed in causing such arousal.

This definition avoids the problems associated with the case of the inept pornographer, since it is not reasonable to expect the target audience to become aroused. It also manages to avoid deeming all forms of expression as examples of pornography, while managing to take a wide variety of sexual preferences into account when determining what counts as pornography. For example a magazine created for dental fetishists that succeeded in arousing people with that particular predilection would count as pornography. If this sounds counterintuitive imagine the cover of a magazine with an image of a woman at the dentist with the following caption: “Watch this dirty whore get her mouth drilled for your viewing pleasure.” With this in mind it is plausible to view this type of magazine as pornographic.

The definition can also explain why the context of a text or image can change it status as a piece of pornography. The image of the woman’s ankles was actually pornography in the Victorian age because it was intended to cause arousal and it succeeded in its goal. In a modern context it is not pornography because it is not reasonable to expect the image to achieve the goal of causing arousal.

The definition also manages to avoid the problem of hustler only becoming pornography once it causes someone to become aroused since the moment that it is produced there is a reasonable expectation that it will cause its target audience to become aroused.

Finally it has the benefit of providing a value neutral account of what pornography is. Unless one is inclined to think that there is something inherently good or bad about being sexually aroused, there does not appear to be anything intrinsically good or bad about pornography. For the purposes of regulation it becomes much easier to target specific types of pornography by drawing on the list of general and specific descriptions of pornography that I provided earlier. Using the descriptive categories makes it easy to avoid regulating pornography that is morally neutral or praiseworthy.

The Sanctity of Marriage Objection
Rea argues that sexually explicit images produced by married couples of each other ought not to be considered pornography because of the intimate bond between the parties and because the material is only intended for private viewing. He goes so far as to claim that in cases where materials become unintentionally available to the public, they would not count as pornography. However these types of images are intended to sexually arouse the couple that make and view the material and they do actually cause such arousal. This means that if Rea’s objection holds then the proposed definition fails on the basis that it includes non-pornography in its account of what pornography is.

I would argue that the sanctity of the marriage should not prevent the images from being considered pornography. There are two examples which substantiate this point. Firstly, some sexually explicit images that are commercially available and advertised as pornography are made by amateur couples, who are intimately involved or married to each other. These images seem like clear cases of pornography. Secondly, one of the best known examples of a pornographic film was made by Pamela Anderson and her then husband Tommy Lee on their honeymoon. The footage was intended to be for their private consumption but it was stolen and made publicly available over the internet. I would argue that placing the footage in the public sphere was not the reason for the video being considered pornography; if it had stayed in the private possession of the married couple it still would have been pornographic. Neither the sanctity of a marriage nor the small range of people that the material is intended to be viewed by should affect that object’s status as a piece of pornography.

The Profit Machine Objection
Rea mounts a further attack against the definition through the use of a thought experiment. He asks us to imagine that a computer programmer has developed a program that will produce products that are guaranteed to be profitable. In order for the program to operate it requires a detailed list of information about the group of people that the product is intended to be sold to. The programmer enlists a team of anthropologists to gather data. The team is deployed on an island in the Pacific Ocean and they set to work observing the islanders and gathering all of the necessary data. The data is then fed into the computer program. The program processes the data and produces a product that is very similar to Hustler magazine. All of the images in the magazine are generated by the computer but they are indistinguishable from actual photographs. The magazine is sold on the island for a profit and it is treated in the same way that we treat pornography. The computer programmer never finds out what product is being sold and he is satisfied with taking his share of the profits. Rea argues that none of the parties involved intend to produce materials that will cause the consumers of those materials to become sexually aroused. The computer programmer only intends to make a profit, the anthropologists only intend to gather information and the computer has no intention at all since it does not have the capacity to have an intention. Rea argues that the magazine being sold on the island is an article of pornography and the fact the definition can not take this into account shows that it is an unsatisfactory definition.

In order to dispute his claim I offer an extended version of his thought experiment. In this version in addition to the computer generating a magazine that resembles Hustler, it also creates set of objects that resemble sculptures of people dancing and another set of objects that resemble sculptures of people engaged in sexual activity. After all of the products are sold on the island, a volcanic eruption occurs. No one is harmed but by an amazing coincidence the lava from the eruption sets and forms a set of objects that resemble sculptures of people dancing and having sex. The village sculptor on the island is dismayed since he has just finished creating a set of sculptures of people dancing and having sex, he is worried that all of the objects that have recently been introduced to the island will affect his business. All of the objects that look like people dancing are treated by the islanders as works of art and all of the objects that look like people having sex are treated as works of pornography. The objects created by the volcano were not created with any intention; they are natural phenomena that resemble works of art and works of pornography. I would argue that these objects ought not to be considered actual works of art or actual works of pornography despite the fact they are treated in that manner by the islanders. First of all, nature is full of objects that resemble works of art but it would be strange to consider them actual works of art, this principle also extends to works of pornography. Second of all, treating an object in a particular way does not mean that the objects loses its identity and becomes the object that it is being treated like. For example if one were to treat a dog like a pony by equipping it with a saddle, feeding it carrots and riding it around a race track, it would remain a dog and not be a pony.

To my mind the natural process that the objects produced by the volcano go through is directly analogous to the process that the objects churned out by the computer go through. In both cases there is no intention to produce either works of art or works of pornography. In both cases the objects that are produced resemble works of art and works of pornography. On the basis that the two processes are analogous, and the fact that it would be counter intuitive to consider the objects produced by the volcano as works of art or pornography, I think the objects produced by the computer should not be considered art or pornography. However the sculptures produced by the island sculptor would qualify as both works of art and pornography. This means that the definition that I have offered can be rescued from Rea’s objection.

Conclusion
I have provided an account of what a good definition of pornography should be, as well as providing examples of pornography and non-pornography. I have used this to assess all of the rival definitions of the term that have been discussed. I have argued that the definition: “Pornography is communicative material produced with the key intention of causing sexual arousal in the targeted audience, and it is reasonable to expect the material to succeed in causing such arousal” meets the requirements of a good definition and it manages to survive the objections made by Rea. I have also demonstrated the merits of using a value neutral definition and explained how specific forms of pornography can be targeted for regulation through the use of general and content specific descriptions.

Originally published at libertyaddiction.blogspot.com on July, 2008.

It would be easy to think that ANC President Jacob Zuma’s defamation suits are propelled by a fragile ego, an insatiable lust for power and a strong distrust of media freedom, but I propose a different narrative.

Perhaps Zuma foresaw the current economic crisis and set a plan in motion to secure his fortune. Instead of taking mounting criticism in his stride, he saw an opportunity to cash in to the value of R63-million. Like a shrewd investor he cast the net wide and targeted a host of publications. He even had the sense to sue South Africa’s most successful satirist.

Instead of casting Zuma as a chauvinistic pig shooting sperm from a machine gun, let us imagine him as a thrifty squirrel storing away nuts for the winter. To date his strategy has only yielded R50 000 from an out of court settlement, a rather paltry sum when one considers his mounting legal fees.

To save him the trouble of deciding whether to cut his losses and retract his claims or go for broke and take the rest of the country to court, I am offering him some free legal advice on the matter. I will use the recent Zapiro cartoon, depicting Zuma about to rape Lady Justice, as an example of how our courts might deal with Zuma’s claims if they reach trial.

The South African law of defamation aims to balance the foundational rights of dignity and freedom. In the Holomisa case it was held that “the value of human dignity in our constitution values both the personal sense of self worth as well as the public’s estimation of the worth or value of an individual”.

On the other hand, freedom of expression gives people the opportunity to be exposed to a number of different viewpoints so that they can make informed and legitimate decisions about both their political and private lives. It allows for intellectual and artistic progress by provoking discussion and aiding the search for truth. By stifling beliefs that are different from our own we lose the opportunity to challenge, reconsider and perhaps reaffirm our own views.

When confronted with a defamation case our courts engage in a two-stage analysis. First, it is asked whether a defamatory statement was in fact made against the party making the complaint, with the onus resting on the complainant to prove this. Once this has been done, the onus shifts to the defendant to prove that the defamatory statement was justified. Our law defines defamation as the wrongful and intentional publication of a defamatory statement concerning the complainant. Our courts have held that statements must “tend to lower the plaintiff in the estimation of right thinking members of society”, to be considered defamatory.

There has been some debate about the meaning of Zapiro’s cartoon. Zapiro has argued that the cartoon expresses the opinion that Zuma has abused our system of legal justice. Others argue that it makes a factual claim that Zuma is actually a rapist. The fact that Zuma was previously charged with rape is meant to give credence to this argument. Both interpretations have a defamatory sting, but they give rise to different defences.

In the first instance, Zapiro’s defence would be one of fair comment. He would have to prove that the cartoon is an honest expression of opinion, made without malice and based on a set of facts that are true and available to the public. This opinion can be of an extreme nature and it does not have to be shared by members of the public. Zapiro could draw on the fact that Zuma has attempted to use procedural technicalities to bar the NPA from using certain pieces of evidence against him in court, in addition to his general aversion to a trial, as a basis for his opinion that Zuma is attempting to rape justice.

In the unlikely event that the cartoon was considered to be a statement of fact, Zapiro would have to rely on the defence of truth for the public benefit. This means that Zapiro would have to prove that Zuma had either actually attempted to rape someone or in fact succeeded in doing so.

One might presume that Zuma’s acquittal in his rape case would count as proof that he is not a rapist. However, criminal cases require the state to prove beyond a reasonable doubt that the accused is guilty of the crime that he is accused of. Civil cases, including defamation cases, require the lower burden of proof, on a balance of probabilities.

Not only does this mean that Zuma would have to endure a rerun of his rape trial, it means that the court may decide that he did engage in the act of rape. This would be similar to the outcome in the OJ Simpson trial. Even though he was not found guilty of murder in his criminal trial, he was found liable in the civil case against him.

In their seminal work on the law of delict, Van der Walt and Midgley argue that “in a democracy, forthright criticism, wild accusations and innuendos — often unfair and unfounded — are part and parcel of political activity and right thinking persons in society do not think less of politicians who are subjected to derogatory statements by opposing politicians or political commentators. The context might cause material that would otherwise have been defamatory to be no more than mere abuse.” This additional defence could hinder Zuma’s success in a possible case against Zapiro.

It appears that Zuma’s investment strategy has been a poor one. Not only does he have minimal prospects of beating Zapiro in court, he has failed to accumulate the R63-million that he had hoped for. Even if my advice falls on deaf ears, I hope that Zuma follows the golden rule of litigation: When faced with the possibility of suing one of two parties, choose the one with deeper pockets. Which means don’t sue me, sue my publisher.

Originally published on The Media Online in November 2008

XXY received two awards at Cannes and it has been submitted to the Oscars for Best Foreign film. The film centers on the life of a hermaphrodite uncovering his/her sexual identity. Despite the fact that the actress playing the role is 22 years old, the board has justified the ban on the basis that the film amounts to child pornography. If you thought that child pornography necessarily involved the use of children, then you thought wrong. Since the character in the film is portrayed as a 15 year old, our legislation deems it contraband.

The Films and Publications Act prohibits two types of child pornography. The first type, “real child pornography”, involves actual children. This is the type of pornography that evokes a universal sense of moral outrage. It is not only that the material is offensive; it is the permanent record of a particularly vile form of child abuse. Children that are involved in pornography are harmed via its creation and the distribution of the material is a further harm against their dignity and privacy.

The legislation also takes aim at another form of child pornography. This type does not involve real children. This “virtual child pornography” is made up of a number of different types of erotic material. It includes paintings, cartoons, sketches and written descriptions of minors involved in sexual conduct. It also includes depictions of adults, which are represented as being under the age of 18, engaged in sexual conduct.

In the recent case of Ashcroft v. Free Speech Coalition the United States Supreme Court held that virtual child pornography does “not involve, let alone harm, any children in the production process… The statute proscribes the visual depiction of an idea — that of teenagers engaging in sexual activity — that is a fact of modern society and has been a theme in art and literature throughout the ages.” In spite of this, the South African legislation specifically states that artistic films and publications are not exempted from prohibition if they constitute virtual child pornography.

XXY is not the only work on the chopping block; a host of pieces are threatened by the Act, including paintings by the prominent artists Gustav Klimt and Egon Shiele. The recent Oscar winning films Traffic and American Beauty both feature scenes depicting woman under the age of 18 involved in sexual conduct. The most famous love story ever written, Romeo and Juliet, involves a relationship between two teenagers, one of whom is only 13 years old. Several adaptations of the play have been produced for film and some of them show the lovers involved in sexual conduct. Given the patent absurdity of prohibiting the above mentioned works of art, it must be asked why virtual child pornography is banned in the first place.

Firstly, it may be argued that since virtual child pornography may be used to entice children to have sex with paedophiles, it ought to be prohibited. This argument fails on the basis that innocent objects like cartoons and candy may be misused by paedophiles to achieve the same end of seducing children, but we do not think that it would be appropriate to prohibit those items. Furthermore, the prohibition would not be an effective way of preventing pedophiles from enticing children, since they would continue to entice children with innocent objects.

Secondly, in some cases it is not possible to distinguish virtual child pornography from real child pornography. This will be the case where adults are made to look younger then the age of 18 or where images are created through the use of digital imaging software, which does not make use of performers at all. It is therefore argued that in order to prosecute real child pornographers it is necessary to prohibit the virtual counterpart.

However, in the Ashcroft case it was held that if it really is the case that a certain class of virtual images is indistinguishable from real images, “the illegal images would be driven from the market by the indistinguishable substitutes. Few pornographers would risk prosecution by abusing real children if fictional, computerised images would suffice.” It seems that virtual child pornography would have the positive effect of reducing the amount of real child pornography being produced; it would in fact be saving children from suffering abuse.

In essence, what is being argued is that in order to prohibit unprotected forms of expression it is necessary to prohibit forms of expression that would otherwise be protected. However, in the Broadrick case this type of argument was held to be an affront to the very principle of freedom expression.

In the same way that it is better to let ten guilty people go free than to punish one innocent person, “the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be muted”.

Originally published on The Media Online in September, 2008.

Introduction

The Films and Publications Act prohibits two types of child pornography.[1] The first type Real Child Pornography, involves actual children. This is the type of pornography that evokes a strong and near universal sense of moral outrage. It is not only that the material is offensive; it is the permanent record of a particularly vile form of child abuse.[2] Children that are involved in pornography are harmed via its creation; the distribution of the material is a further harm against their dignity and privacy. During the course of this paper I will discuss why the state is justified in instituting criminal sanctions for the production, distribution and possession of this type of child pornography.

The legislation also takes aim at another form of child pornography. This type does not involve real children. This Virtual Child Pornography is made up of a number of different types of erotic material. It includes paintings, cartoons, sketches and written descriptions of children involved in sexual conduct. It also includes depictions of adults, which are represented as being under the age of 18, engaged in sexual conduct. Digitally created images that resemble actual child pornography, but which do not make use of real children are also prohibited.

In this paper I highlight the key difference between Real and Virtual Child Pornography. After showing why the state is justified in prohibiting Real Child Pornography I will argue that those reasons do not provide a basis for the state to institute criminal sanctions against those that produce, distribute and possess Virtual Child Pornography. I will explain why the current prohibition on Virtual Child Pornography infringes the right to freedom of expression and argue that the infringement cannot be justified by the limitations clause.

Real Child Pornography

The state has a duty to uphold the right to freedom of expression, but it must also place appropriate restrictions on this right in certain circumstances. Real Child Pornography serves as a record of a particularly severe rights violation. The producers of child pornography actively participate in the sexual exploitation of minors. Younger children lack the capacity to fully appreciate the magnitude of what they are involved in, and cannot be considered consenting parties to sexual conduct. Real Child Pornography lasts as a haunting memory of abuse and a continual source of harm to the children that were involved in its production. The distributors of this material play a lesser but significant role in the perpetuation of this form of child abuse. They stimulate a market for Real Child Pornography and encourage its creation. By encouraging a greater demand amongst consumers they incentivise pornographers to increase the supply of materials. Consumers are not without blame in this process, since they provide the capital incentive for people to continue to produce and distribute Real Child Pornography. I would argue that there is a sufficient connection between the production, distribution and possession of Real Child Pornography and the abuse of real children to warrant the criminal sanctions against Real Child Pornography that are currently in place. This is a clear case where freedom of expression can be limited to prevent significant harm to children.

However the law ought to recognize that producers, distributors and possessors are not deserving of equal punishment. A possessor is not as intimately linked to the abuse of a child as the person that actually molests a child and films that molestation. I would suggest that a blanket punishment for the three categories of offenders is inappropriate since it fails to distinguish between the levels of harm caused by the offenders.[3]

Virtual Child Pornography

Virtual Child Pornography does “not involve, let alone harm, any children in the production process.”[4] “The statute proscribes the visual depiction of an idea — that of teenagers engaging in sexual activity — that is a fact of modern society and has been a theme in art and literature throughout the ages.”[5] The law specifically states that artistic films and publications are not exempted from prohibition if they constitute virtual child pornography.[6] In order to illustrate the severity and extent of the prohibition I will endeavor to provide a short list of materials that would incur criminal sanction under the act. Paintings by the prominent and well respected artists Gustav Klimt[7] and Egon Shiele.[8] Numerous sculptures and sketches produced during the renaissance period. The most famous love story ever written, Romeo and Juliet, involves a relationship between two teenagers, one of whom is only 13 years old. Several adaptations of the play have been produced for film and some of them show the lovers involved in sexual conduct.[9] The recent Oscar winning films Traffic and American Beauty both feature scenes depicting woman under the age of 18 involved in sexual conduct. All of these valuable and beautiful works of art are examples of child pornography as defined by the Act.

The examples that I have used provide a basis for the conclusion that virtual child pornography is drastically different from real child pornography and ought not to be regulated in the same manner.

Limiting the Right to Freedom of Expression

The Constitution guarantees the right to freedom of expression[10] and our courts have recognized sexually explicit material as a form of expression that is covered by the right.[11]Therefore the prohibition of Virtual Child Pornography constitutes an infringement of this right, since the material is not an instance of material excluded by S 16(2) of the constitution. It must now be decided whether the infringement of the right can be justified with reference to the limitation clause in S 36.

The clause states the following:

(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into all relevant factors, including-

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

In order to comply with the demands of the limitations clause the state must ensure that any limitation it makes on a right “is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.”[12] Denise Meyerson argues that this prohibits the state from making use of arguments based on a particular conception of the good.[13] Conceptions of the good encompass a range of views about what makes life valuable or meaningful. Religious beliefs are an example of a particular conception of the good. For example a Christian may understand a good life as a life devoted to the worship of Jesus Christ, while a Buddhist may believe that life is most meaningful when it aims at escaping the cycle of reincarnation. Given that our understanding of the world is limited it is not possible for anyone to proof that their particular religious views are true. Therefore it would be unfitting for the state to rely on contested religious views as a basis for limiting rights, even if those views are shared by the majority.

People are not only fallible when it comes to their religious beliefs; they often make mistakes about what makes life worth living. Therefore the state ought not to limit rights by resorting to a particular view about the good life. This does not mean that all conceptions of the good are equal or that they should be treated equally. For example if a group of people believed that eating the first born male at birth was a meaningful activity, the state would be justified in prohibiting their conduct. The state can found its prohibition on the basis that there is a “distinction between harms which all reasonable people would seek to avoid, and harms which are harms only against the background of a particular, intractability disputed conception of the good.”[14] The first set of harms is neutral while the second set is non-neutral.[15] A prohibition on eating the first born is a prohibition of a neutral harm, since all reasonable people would deem the activity to be harmful regardless of their particular conception of the good. Jehovah’s Witnesses believe that blood transfusions are harmful and they base this claim on their interpretation of the Old Testament. In general people that do not subscribe to that biblical interpretation do not consider blood transfusion to be harmful. This means that blood transfusions are an example of a non-neutral harm, since they are only harmful against the background of a particular conception of the good. Therefore the state would not be justified in prohibiting blood transfusions.

In order to justify its prohibition on Virtual Child Pornography the state cannot rely on arguments that show that the material is a non-neutral harm. Arguments in favour of the prohibition must be grounded in evidence that the material is a neutral harm. For example Feminists like Katharine Mackinnon make the claim that pornography degrades women and portrays them as inferior to men[16], while Feminists like Camille Paglia dispute this view and hold the belief that pornography celebrates and empowers women.[17] Neither of these interpretations of the message that pornography sends is entirely unreasonable. If the state were to pick sides in the dispute, it would be promoting a particular view about the representation of sexuality at the expense of another reasonable view on the matter. Since the dispute is not one which could be solved by using public reason, the state ought to remain neutral and concern itself with combating harms that are agreed by all reasonable people to be harms.[18]

I proceed by showing how the specific clauses of the limitations analysis interact with the prohibition of Virtual Child Pornography. I will limit my discussion of the reasons in favour of the prohibition, to those reasons that are grounded in the prevention of neutral harms.

Nature of the Right

Allowing the free dissemination of beliefs, opinions and other forms of expression brings with it immense benefits. It allows for intellectual, cultural, artistic and scientific progress whilst provoking discussion and aiding the search for truth. Since we are not infallible we cannot know with certainty that a particular opinion is false. When we suppress opinions that are believed to be false we risk missing out on the truth.[19] By stifling beliefs that are different from our own we lose the opportunity to “challenge, reconsider and perhaps reaffirm” [20] our own views.

Freedom of expression is the cornerstone of a functioning democratic state, since it gives people the opportunity to be exposed to a number of different viewpoints so that they can make informed and legitimate decisions about both their political and private lives.[21] Furthermore without the right to freely express beliefs society would disintegrate into a state of stasis where there would be no substantial intellectual growth.

It must also be acknowledged that expression is a vital component of human development.[22] When people are exposed to a range of conflicting opinions on a subject they are given the opportunity to exercise their rational faculties, weigh up the arguments on both sides and come to form their own view on the matter. Engaging in this process is fulfilling because it is an exercise in autonomous opinion formation.

Nature and Extent of the Limitation

The penalty for Virtual Child Pornography is currently a prison sentence of up to ten years for the production, distribution or possession of the material. [23] A 14 year old high school student could be imprisoned for a period of up to 30 years if she drew a cartoon or painted a picture of herself involved in sexual conduct, distributed copies to her friends and retained a copy for herself. It is not only existing works that would suffer the force of censorship.

The chilling effect on speech, caused by the Act, would be enormous since the risk of being imprisoned, would deter people from producing or distributing anything that could result in a criminal sanction. This means that the prohibition would prevent new works of art from being created. Furthermore the process of defending oneself in court places a financial burden on the accused, even in cases where the accused wins the case, the legal costs involved in fighting a case can be crippling.[24] It is also possible that materials which fall outside the scope of the definition of child pornography proposed by the law would not be distributed since booksellers and video stores are unable to review all of the titles that are sent to them by publishers, for pragmatic reasons they may have to avoid stocking a large number of films and publication that contained sexual content, to avoid imprisonment.[25]

One of the further problems with censorship is that it drives production of banned materials underground where they cannot be regulated at all. The prohibition of alcohol in America did not cease the consumption of liquor; it created room for criminal networks to take control of alcohol production and distribution. Prohibition gave criminals the financial resources to strengthen and expand their criminal empires. The forbidden fruit phenomenon means that the act of censoring material has the effect of increasing an individual’s desire for that material. Furthermore if viewers are under the impression that the media that they are exposed to has gone through a filtering process to remove all inappropriate forms of expression, then they are less likely to be critical of the material that they consume. Societies that allow for a broad selection of opinions create an environment that strengthens people’s analytical skills and trains them to question the views that are presented to them.[26]

Importance of the Purpose of the Limitation and the Relation Between the Limitation and its Purpose

I have combined two sections of the limitations clause under one heading in order to discuss what the prohibition of Virtual Child Pornography aims to achieve and to assess whether prohibition will actually achieve those aims.

Firstly, it may be argued that since Virtual Child Pornography may be used to entice children to have sex with pedophiles, it ought to be prohibited. This argument fails on the basis that innocent objects like cartoons and candy may be misused by pedophiles to achieve the same end of seducing children, but we do not think that it would be appropriate to prohibit those items.[27] Furthermore, the prohibition would not be an effective way of preventing pedophiles from enticing children, since they would continue to entice children with innocent objects.

Secondly, in some cases it is not possible to distinguish Virtual Child Pornography from Real Child Pornography. This will be the case where adults are made to look younger then the age of 18 or where images are created through the use of digital imaging software, which does not make use of performers at all. It is therefore argued that in order to prosecute Real Child Pornographers it is necessary to prohibit the Virtual counterpart.[28] However, if it really is the case that a certain class of virtual images is indistinguishable from real images, “the illegal images would be driven from the market by the indistinguishable substitutes. Few pornographers would risk prosecution by abusing real children if fictional, computerized images would suffice.”[29] It seems that virtual Child Pornography would have the positive effect of reducing the amount of Real Child Pornography being produced; it would in fact be saving children from suffering abuse. In essence what is being argued is that in order to prohibit unprotected forms of expression it is necessary to prohibit forms of expression that would otherwise be protected. However in the Broadrick case this type of argument was held to be an affront to the very principle of freedom expression. In the same way that it is better to let ten guilty people go free than to punish one innocent person, “the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted.”[30]

Thirdly, it is argued that Virtual Child Pornography will encourage pedophiles to abuse real children. In order to address this argument I will provide a discussion of the empirical evidence on the matter. There are four types of evidence that attempt to show the link between pornography and violence against third parties. Firstly, there are laboratory experiments that show how exposure to pornography affects the behavior of men. Secondly, studies that describe the factors that play a role in causing sex offenders to commit crimes. Thirdly, statistical data that seeks to correlate the availability of pornography to acts of sexual violence. Finally, there are anecdotal accounts that detail the role played by pornography in cases of sexualized violence. Such accounts are typically from testimonies made by victims and perpetrators of sexualized violence.[31]

Laboratory Experiments

Laboratory experiments are conducted by exposing subjects to pornographic images and assessing the levels of sexual aggression that are caused by the exposure. Numerous studies have failed to produce reliable results that prove that being exposed to pornography causes sexual aggression.[32] The experiments were only able to show that being exposed to pornography caused subjects to revise their beliefs about how common certain sexual practices were.[33]

Studies on Sex Offenders

Studies that have been conducted on sex offenders show that those men have been exposed to less pornography then the average man.[34] Furthermore a large number of sex offenders “were raised with strict, antisexual, repressive attitudes.”[35] This seems to suggest that it is healthier for a person to be exposed to pornography in an environment that supports sexual expression as opposed to one that condemns such expression. It is obviously the case that some sex offenders were also users of pornography. However using this evidence to support the claim that using pornography causes one to rape is as fallacious as using evidence that shows that some rapists are soccer players and suggesting that playing soccer causes people to rape. The number of people that play soccer or view pornography that do not commit rape far outweighs the numbers that do.[36]

Correlative Studies

Studies that show a relationship between an abundant use of pornographic materials and high levels of sexual violence would not in themselves show that consumption of such materials caused sexual violence. The chain of causality could run in the opposite direction. It could just as well be the case that sex offenders purchased pornography after committing their crimes in an effort to relive their actions. There could also be independent factors that cause high levels of consumption of pornography and sexual violence, like a disproportionately high number of young men in society.[37]

In addition to these problems there are numerous cases where there is an inverse relationship between the levels of violence and discrimination against women and the level of availability of pornography.[38] In countries like Japan, Denmark and Germany there are very low levels of violence against women despite the fact that pornographic materials are easily accessible in these countries. On the other hand in countries like Iran and China where women are frequently subjected to violence and discrimination, there are strict policies against pornography. This is not sufficient evidence to show that an increase in pornographic materials decreases violence against women, but it does show that there are independent factors that affect both sets of data. Tolerant environments that place fewer restrictions on freedom of expression tend to allow for more pornography to be produced but they also reduce the levels of violence and discrimination against women.[39]

Anecdotal Accounts

Catherine MacKinnon cites a disturbing case where “a brother holds up pornography magazines as his friend’s gang-rape his sister, making her assume the poses in the materials, turning her as they turned the pages.”[40] It is shocking anecdotes like this one that have the power to sway our emotions and cause us to side with MacKinnon’s cause. Without trivializing the horrendous harms that were suffered by the girl who was gang raped a few things must be noted. First of all, the men that used the pornographic magazines could have done exactly the same thing if they used diagrams found in guides for newlyweds, sketches or written discussions of sexual positions found in religious texts like the Karma Sutra or in the sex advice section of women’s magazines. Such a large part of the causal explanation for why a man commits rape has to do with his dispositions and his psychological make up, “that it is likely that some similar crime would have suggested itself to him in due time.”[41]

In their defense rapists have blamed their actions on the influence of pornography, in an effort to transfer responsibility from themselves onto the pornography industry. But it is not only pornography that has been blamed for the perpetration of violent acts. After watching the film The Ten Commandments, which showed a group of Hebrew women dancing around the golden calf in praise of it, a man in Germany became convinced that women were the root of all evil and he set out on a killing spree directed specifically at women. In another case a child attempted to murder his parents with a meat cleaver after watching a film based on Dostoyevsky’s book The Brothers Karamazov[42]. Classical literature like the Odyssey is filled with extreme depictions of violence, as is the Bible. It is entirely possible for an individual to commit actions that are described in these texts.

“In arguing that exposure to pornography causes violent crimes against women, pro-censorship feminists dilute the accountability of men who commit these crimes by displacing some of it onto words and images, or onto those who create or distribute them.”[43]Rapists ought to be held accountable for their actions. The defense that “porn made me do it” unfairly transfers responsibility. MacKinnon has argued that showing porn to a man is like shouting kill to a dog, but this crude analogy flies in the face of evidence that people are rational agents that are capable of deliberating about the material that they view and the opinions that they hear.[44]

Unfortunately there will always be a few individuals that are highly susceptible to the influence of words and images. Placing restrictions on pornographic materials would burden those that enjoy them and it is likely that those individuals that would otherwise have been susceptible to the influence of pornography will be influenced by something else. “If we attempted to ban all words or images that have been blamed for inspiring or inciting particular crimes by some aberrant or antisocial individual, we would end up with little left to read or view.”[45]

MacKinnon’s claim that “there is no evidence that pornography does no harm”[46] is not a reasonable basis for the suppression of pornography. If we were to use her standard as a basis for censorship then we could substitute any word for the term pornography to justify censoring it. For example on this account the fact that there is no evidence that Bible stories cause no harm would be a good reason to prevent further production and distribution of the Bible.[47]

The ultimate aim of the legislation is to protect children from harm. This is an admirable aim that is achieved by prohibiting Real Child Pornography. However the purpose is not achieved by prohibiting Virtual Child Pornography. I have demonstrated that virtual Child Pornography is unconnected to the abuse of real children. This means that the limitation on the right to freedom of expression is also unconnected to the prevention of child abuse.

Less Restrictive Means

It is evident that the costs of adopting the law would be heavy and it is not clear that there would be any benefit in doing so either. As Judge Barker once proclaimed “to deny free speech in order to engineer social change in the hope of accomplishing a greater good for one section of our society erodes the freedoms of all.”[48] I have argued that the current definition of child pornography is too broad since it includes both real and virtual child pornography. If the section were completely struck down as being unconstitutional, we would be in the unfortunate position of leaving Real Child Pornography unregulated. In a recent Supreme Court decision in America the court struck down legislation that is similar to our own on the basis that it was unconstitutional.[49] It is for this very reason that there is an imperative to amend the current law so that it no longer prohibits Virtual Child Pornography but that it continues to prohibit Real Child Pornography.

The Act’s purpose is to protect people, especially children from harm, and it can achieve this purpose without unduly infringing the right to freedom of expression by only prohibiting Real Child Pornography. This can be achieved by reformulating the existing definition of child pornography. The following definition should be used in place of the one currently found in S 1 of the Films and Publication Act.

Revised Definition of Child Pornography

Child pornography includes any actual photograph or film of a person who is under the age of 18-

(i) Engaged in sexual conduct;

(ii) Participating in, or assisting another person to participate in, sexual conduct; or

(iii) Showing the body, or parts of the body, of such a person in a manner or in circumstances which, within context, amounts to a sexually exploitative infringement of that person’s dignity.

Furthermore the act can take measures to regulate particular forms of Virtual Child Pornography that are offensive, without the use of criminal sanctions. A degree of caution must be taken when it comes to regulating offensive material, given the range of materials that people find offensive.[50] People suffer genuine offence at the sight of garish clothing; homosexual kissing and poor table manners yet few of us would be in favour of regulating depictions of these things. However there does seem to be a case in favour of regulating sex in public, making loud noises in the middle of the night or the desecration of religious symbols. The model that I will be using strikes a balance between competing interests to determine the content and extent of what should be regulated.

Regulating Offensive Material

I will now provide an account of Joel Feinberg’s framework, that I will use to determine the manner and extent of regulation that is appropriate to the offending material. The regulatory model works by balancing the seriousness of the offence against the reasonableness of the offence. Further procedures determine which offending parties interests ought to be taken into account and they distinguish between different types of offensive material.

The Seriousness of the Offence

The seriousness of the offence can be determined by examining the following three factors. Firstly, the intensity, durability and extent of the repugnance produced. Secondly, the effort required to avoid making contact with the offensive material. Thirdly, whether the viewers of the material “willingly assumed the risk of being offended.” [51]

The Reasonableness of the Offence

The reasonableness of the offending party’s conduct can be determined by examining the following four factors. Firstly, the personal importance of the material to the offending party. Secondly, the social value of the material. Thirdly, the motive of the party causing the offence. Fourthly, “the availability of alternative times and places where the conduct in question would cause less offence.” [52]

Mere Offence and Profound Offence

Joel Feinberg makes an important distinction between material that is merely offensive and material that is profoundly offensive. Merely offensive material has the following four characteristics. Firstly, the experience triggered by the material is of a trivial nature. Secondly, the offence must be perceived for to it have an affect and it constitutes an affront to one’s physical senses. Thirdly, the offence is experienced in a personal way, which means that the offended party thinks of herself as being personally wronged by the offending party. Fourthly, the offence is thought to be wrong because of the unpleasant states that it causes, not because it is thought to be inherently wrong.[53]

Profoundly offensive material has the following four characteristics. Firstly, it is experienced in a serious and often shattering way. Secondly, the idea of the conduct occurring is offensive in itself and one does not need to perceive it to be offended. Thirdly, the offence cannot be avoided by staying out of physical contact with the material. Fourthly, the offence is of an impersonal nature, which means that the conduct does not directly target the offended party and can be understood as an affront to the offended party’s moral beliefs.[54]

The Offended Parties’ Interests

One final consideration must be taken into account before a decision can be reached on how to regulate the offending material. It must be determined which offended parties should be given consideration and I will do this by looking at four categories of people. Firstly, all observers of the material. Secondly, all captive observers. Thirdly, people that are offended by the bare knowledge that the material is being produced or distributed in a specific location that they cannot observe. Fourthly, any offended party that has the bare knowledge that making the material legal will result in it being produced and distributed somewhere. [55]

The problem with considering the people in the first group is that the category includes those that willingly assumed the risk of being offended and still chose to view the material, which means that the group is too broad. The people in the second group would not only refer to people that are strapped down and forced to watch hours of the offending material. It would include people that do not choose to be exposed to offending materials that cannot be reasonably avoided, like those subjected to billboards or other forms of advertising that depict the material. I would argue that the interests of people in this group are the most important of the four, since they are innocent parties that hold widely shared interests. I would argue that placing a large amount of importance on interests of those people in the third group would cause an excessive burden to those that value the offending conduct. It must be noted that those that are offended by the thought of their interracial neighbors engaging in sexual acts behind closed doors, would fall under this third group. Those in the fourth group could accurately be described as abnormally sensitive and this on its own would constitute a reasonable basis for paying less attention to their concerns, but there is an even more pressing reason for not regulating material with them in mind. Carrying out the demands of this group would be a major imposition on personal privacy.[56] Regulation would require police officers to burst into bedrooms to make sure that no one was doing anything offensive, a scenario that was all too familiar in South Africa during Apartheid.

Regulating Virtual Child Pornography

I will now use the model that I have presented to determine how virtual child pornography should be regulated. It must of course be noted that not all forms of Virtual Child Pornography are offensive. Recognized works of art like those produced by renaissance painters, or films like American Beauty are only considered offensive by extremely prudish members of our society. In this section I will therefore only be considering those forms of virtual Child Pornography that are indistinguishable from Real Child Pornography but do not make use of real children. I think those forms of the material are widely regarded as aesthetically disgusting and offensive.

Categorizing the Nature of the Offence in Virtual Child Pornography

The material produced by virtual child pornographers is most accurately described as profoundly offensive. Firstly, because the offense that it causes is particularly severe. Secondly, one does not need to be in contact with it to feel offended, but being in contact with the material would only exacerbate the situation. Thirdly, the offense is of an impersonal kind.

The Seriousness of the Offence

The extreme nature of the content ensures that the intensity of the repugnance caused would be large. However the seriousness of the offence can be reduced by taking regulatory measures to limit the extent and durability of the offence, as well as making it easy for people to avoid contact with the material if they wish to do so. For example displaying images of virtual child pornography on billboards across a city would increase the severity of the offense since it would target a large captive audience, while restricting promotion of the material to adverts placed in sex shops or pornographic websites would reduce the severity of the offense. Books containing the material could be adequately marked and sealed to prevent people from stumbling across them unwittingly and being offended.

The Reasonableness of the Material

The material is of great personal value to virtual child pornographers since they derive their livelihood from distributing it. It is also important to those that buy the material since they derive pleasure from watching or reading it. Any regulation of the material would constitute a limitation on freedom of expression and there is social value in allowing expression to go unhampered, but this does not mean that no regulation ought to be permitted. Feinberg states that “unpopular, unorthodox and extreme opinions no less then any others need their spokesmen, in order that our chances of discovering truths and making wise decisions be increased.”[57] Virtual Child Pornography embodies attitudes that have political content, which play a role in the marketplace of ideas and are thus worthy of a degree of protection. The material is undoubtedly unpopular but at least some of it is motivated by an interest in reforming social values.

Conclusion

I began by drawing a distinction between Real Child Pornography, which involves the use of real children and Virtual Child Pornography, which does not make use of children but depicts or describes them engaged in sexual activity. I argued that the state is justified in prohibiting Real Child Pornography because of the severe harm that it causes to the children that are used to produce it. I argued that a prohibition on Virtual Child Pornography could not be based on a particular conception of the good, since the state has a duty to base its reasons for limiting rights on neutral harms. I examined the importance of the right to freedom of expression by demonstrating its role in a functioning democracy, the search for truth and the personal development of citizens. I argued that the prohibition is a severe infringement on the right because of the penalty that it imposes and the chilling effect it has on expression. I examined a series of arguments that aim to show that Virtual Child Pornography results in some form of harm. My assessment of the empirical evidence demonstrates that a sufficient link can not be drawn between the consumption of pornography and harm to others. I proceeded to argue that less restrictive measures can be taken by the state. The first measure involves redefining the current legal definition of child pornography so that it only refers to Real Child Pornography. The second involves a nuisance regulation of Virtual Child Pornography that strikes a balance between the interests of those that are offended by the material and those that produce and value the material. In light of the above arguments it must be concluded that the current prohibition on Virtual Child Pornography is an unconstitutional violation of the right to freedom expression, which cannot be justified by the limitations clause.

Bibliography

Books

Joel Feinberg, The Moral Limits of the Criminal Law Offense To Others Law, (Oxford University Press, 1987)

Denise Meyerson, Rights Limited: Freedom of Expression, Religion and the South African Constitution, (Juta, 1997)

Nadine Strossen, Defending Pornography Free Speech, Sex and the Fight for Women’s Rights, (Doubleday, 1996)

Feminism and Pornography edited by Drucilla Cornell, (Oxford University Press, 2000)

J De Waal et al, Bill of Rights Handbook, (Juta, 2005)

Jonathon Wolff, An Introduction to Political Philosophy, (Oxford University Press, 1996)

Journals

Suzanne Ost, Children at Risk: Legal and Societal Perceptions of the Potential Threat that the Possession of Child Pornography Poses to Society, Journal of Law and Society vol 29, No 3, September 2002

Cases

Ashcroft v. Free Speech Coalition 535 U.S. 234 (2002)

Broadrick v Oklahoma, 413 U. S., at 612 (1973)

Case v Minister of Safety and Security: Curtis v Minister of Safety and Security 1996 (3) SA 617 (CC), 1996 (5) BCLR 609 (CC)

Legislation

Child Pornography Prevention Act of 1996, 18 U.S.C. § 2256 (CPPA).

Constitution of the Republic of South Africa, 1996

Films and Publications Act, 1996

Endnotes

[1] S 1(a) of the Films and Publications Act, 1996

Child pornography includes any image, however created, or any description of a person, real or simulated, who is, or who is depicted or described as being, under the age of 18 years-

(i) engaged in sexual conduct;

(ii) Participating in, or assisting another person to participate in,

sexual conduct; or

(iii) Showing or describing the body, or parts of the body, of such a

person in a manner or in circumstances which, within context,

amounts to sexual exploitation, or in such a manner that it is

capable of being used for the purposes of sexual exploitation;

S 1(f) of the Films and Publications Act, 1996

Sexual conduct includes-

(i) male genitals in a state of arousal or stimulation;

(ii) the undue display of genitals or of the anal region;

(iii) masturbation;

(iv) bestiality;

(v) sexual intercourse, whether real or simulated, including anal

sexual intercourse;

(vi) sexual contact involving the direct or indirect fondling or

touching of the intimate parts of a body, including the breasts,

with or without any object;

(vii) the penetration of a vagina or anus with any object;

(viii) oral genital contact; or

(ix) oral anal contact

[2] Suzanne Ost, Children at Risk: Legal and Societal Perceptions of the Potential Threat that the Possession of Child Pornography Poses to Society, Journal of Law and Society vol 29, No 3, September 2002, 4

[3] There is arguably a separate case for exempting couples that are above the legal age of consent but younger then 18 from being punished for producing erotic images of themselves.

[4] Ashcroft v. Free Speech Coalition 535 U.S. 234 (2002), 3

[5] Ashcroft v. Free Speech Coalition 535 U.S. 234 (2002), 8

[6] SCHEDULE 1, FILMS AND PUBLICATIONS ACT, 1996.

XX CLASSIFICATION FOR PUBLICATIONS

A publication shall be classified as XX if, judged within context(1) it contains a visual presentation, simulated or real of- (a) a person who is, or is depicted as being, under the age of 18 years, participating in, engaging in or assisting another person to engage in sexual conduct or a lewd display of nudity.

SCHEDULE 5, FILMS AND PUBLICATIONS ACT, 1996.

ART AND SCIENCE EXEMPTION FOR PUBLICATIONS

The XX or X18 classification shall not be applied in respect of a bona fide scientific, documentary, literary or, except in the case of Schedule 1(1)(a), an artistic publication, or any part of a publication which, judged within context, is of such a nature.

SCHEDULE 6, FILMS AND PUBLICATIONS ACT, 1996.

XX CLASSIFICATION FOR FILMS

A film shall be classified as XX if, judged within context, it contains a scene or scenes, simulated or real, of any of the following: (1) a person who is, or is depicted as being, under the age of 18 years, participating in, engaging in or assisting another person to engage in sexual conduct or a lewd display of nudity.

SCHEDULE 9, FILMS AND PUBLICATIONS ACT, 1996.

ART AND SCIENCE EXEMPTION FOR FILMS

The XX or X18 classification shall not be applicable to a bona fide scientific, documentary, dramatic or, except in the case of Schedule 6(1), an artistic film or any part of a film which, judged within context, is of such a nature.

[7] Mulher sentada, (1916)

[8] Sitzender weiblicher Akt, (1914)

[9] Romeo and Juliet (B. Luhrmann Director, 1996)

[10] S 16 (1) Everyone has the right to freedom of expression, which includes-

(a) freedom of the press and other media;

(b) freedom to receive or impart information or ideas;

(c) freedom of artistic creativity;

(d) academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to-

(a) propaganda for war;

(b) incitement of imminent violence;

(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

[11] Case v Minister of Safety and Security: Curtis v Minister of Safety and Security 1996 (3) SA 617 (CC), 1996 (5) BCLR 609 (CC)

[12] S 36(1) of the Constitution

[13] Denise Meyerson, Rights Limited: Freedom of Expression, Religion and the South African Constitution, (Juta, 1997), 55

[14] Meyerson, 57

[15] Meyerson, 57

[16] Meyerson, 96

[17] Meyerson, 97

[18] Meyerson 98

[19] Meyerson, 78

[20] Jonathon Wolff, An Introduction to Political Philosophy, (Oxford University Press, 1996), 118

[21] J De Waal et al, Bill of Rights Handbook, (Juta, 2001) 310

[22] Meyerson, 81

[23] S 27 of the Films and Publications Act, 1996

(1) (a) Any person shall be guilty of an offence if he or she-

(i) is in possession of ;

(ii) creates or produces or in any way contributes to, or assists in, the creation or production of;

(iii) imports or in any way takes steps to procure, obtain or access; or

(iv) knowingly exports, broadcasts or in any way distributes or causes

a film or publication which contains child pornography or which

advocates, advertises or promotes child pornography or the sexual

exploitation of children.

S 30 (1A) of the Films and Publications Act, 1996

Any person found guilty of a contravention of section 27(1) may be sentenced to a fine or to imprisonment for a period not exceeding ten years or to both a fine and such imprisonment.

[24] Strossen, 67–8

[25] Strossen, 68

[26] Strossen, 263

[27] Ashcroft v. Free Speech Coalition 535 U.S. 234 (2002), 13

[28] Ashcroft v. Free Speech Coalition 535 U.S. 234 (2002), 16

[29] Ashcroft v. Free Speech Coalition 535 U.S. 234 (2002), 16

[30] Broadrick v Oklahoma, 413 U. S., at 612 (1973)

[31] Nadine Strossen, Defending Pornography Free Speech, Sex and the Fight for Women’s Rights, (Doubleday, 1996), 248

[32] Daniel Linz, Steven D. Pendrod, and Edward Donnertein, “The Attorney General’s Commission on Pornography: The Gaps between ‘Findings’ and Facts,” American Bar Foundation Research Journal 4 (Fall 1987): 713–36 cited in Strossen, 252

[33] Edward Mulvey and Jeffrey Haugaard, Surgeon General’s Workshop on Pornography and Public Health (Arlington, Virginia: US Department of Health and Human Services, 1986) cited in Strossen, 252

[34] Pally, Sex and Sensibility, 25–61 cited in Strossen, 261

[35] Strossen, 261

[36] Strossen, 257

[37] Strossen, 253

[38] Strossen, 254

[39] Strossen, 255

[40] Catherine A. MacKinnon, “The Roar on the Other Side of Silence”, cited in Feminism and Pornography edited by Drucilla Cornell, (Oxford University Press, 2000), 132

[41] Joel Feinberg, The Moral Limits of the Criminal Law Offense To Others Law, (Oxford University Press, 1987), 150

[42] Strossen, 257–8

[43] Strossen, 268

[44] Strossen, 272

[45] Strossen, 257

[46] Catharine MacKinnon, Only Words (Cambridge, Mass.: Harvard University Press, 1993), 37 cited in Strossen, 246

[47] Strossen, 248

[48] American Booksellers Association v Hudnut, 598 F Supp 1316, 1317 (D. Ind. 1984) cited in Strossen, 80

[49] The Child Pornography Prevention Act of 1996, 18 U.S.C. § 2256 (CPPA) was struck down in Ashcroft v. Free Speech Coalition 535 U.S. 234 (2002)

[50] Feinberg, 25

[51] Feinberg ,26

[52] Feinberg, 26

[53] Feinberg, 57–8

[54] Feinberg, 58–9

[55] Feinberg, 61

[56] Feinberg, 66

[57] Feinberg, 38