Portfolio Committee on Communications signs off on proposals to widen the scope of legal pornography

On Tuesday, 21 November 2017 the Portfolio Committee on Communications, National Assembly (PCC, NA) concluded its deliberations on the Films and Publications Amendment Bill and adopted the Bill in its entirety. The Department of Communications’ (DoC), who brought the Bill to Parliament, proposed amendments including, amongst others:

• the watering down of the definition of prohibited “obscene material”, called “XX” classification in SA’s Films and Publications Act (the Act); and

• the legalising/decriminalising of hardcore online pornography in South Africa, subject to provisions requiring the protection of children from exposure to online pornography.


DoC Proposals

The proposal by the DoC to start putting in place measures and mechanisms to protect children from exposure to online pornography, is welcomed and fully supported.

Three other proposals by the DoC were however very concerning and perplexing – they proposed the deletion of provisions that prohibit depictions that –

1. Violate/disrespect the human dignity of any person;

2. Are degrading of human beings;

3. Describe or give instructions on how to cause harm to human beings.

The DoC proposed replacing these prohibitions with a single prohibition “explicit sexual conduct [that is] accompanied by explicit violence”. This will however leave holes in the law for abuse by producers of vile pornography and exploiters of vulnerable and trafficked women.


PCC Response – Adopted Bill and positive developments

The text of the Bill adopted by the PCC today, will make more vile types of pornography legally accessible by adult audiences in SA.

They have rejected calls from the public to prohibit the distribution of non-violent degrading material.

As a result, the Bill that will now go to the NA for a second reading and if unamended by the NA, to the National Council of Provinces (NCOP), will result in SA following suit in allowing the distribution of some of the vilest pornography to adults in SA (e.g. material including defecating and urinating on “sexual partners” in a non-violent manner) – excluding pornography containing explicit violence.

The decision is indicative of an underlying policy that consent trumps human dignity. Put differently, no matter how degrading a depiction may be of a human being, as long as the person filmed consented to the degrading act being perpetrated on him/her, the act may legally be filmed and distributed to adults. Notable exclusions to this underlying policy is depictions of bestiality and incest (which may not be distributed, although the persons consented to the act) and depictions of sexual acts with unconscious, drugged or mentally disabled persons (which may be distributed, even though the persons were unable to consent to the act).

As noted, proposals aimed at protecting children from exposure to pornography has remained intact.

Another welcoming amendment coming out of the PCC process is the prohibition that no-one may “create, produce or distribute …films or photographs depicting sexual violence and violence against children”. The creation of this new criminal offence will afford protection to especially women and children, who are most vulnerable in society to sexual exploitation and abuse.

Remaining holes include: (materials that may be viewed by adult viewers)

• Material violating the human dignity of a person

• Non-violent degrading material

• Material depicting sexual acts with a human corpse

• The possession of materials containing sexual violence – a narrowly defined term (i.e. for personal use)

• The creation, production and possession of material containing bestiality or incest (for personal use, although the law does not allow these materials to be distributed)

• Material containing descriptions or instructions on how to cause harm to human beings


• The distribution of materials containing sexually suggestive or lewd acts to children


Next action on the Bill

Bar something akin to a miracle happening at the second reading of the Bill or in the NCOP, it seems a virtual certainty SA will take the value it places on human beings down a further couple of notches. With Parliament paving the way, one cannot help to wonder whether other media regulators (e.g. broadcasting’s BCCSA) will hold the line or also give way?

Once the NA and NCOP have concluded their considerations and deliberations on the Bill, the nation will have a clear picture of the value Parliament places on the people they represent and their human dignity.




For further queries, contact CFJ at:


Tel: 083 235 1511


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