Despite widespread opposition the South African government has signed into law the Films and Publications Amendment Act 3 of 2009 (PDF). Published in the Government Gazette on August 28, the act is a wide-reaching amendment that is ostensibly designed to clamp down on the publication of child pornography but in fact introduces a range of powers to the Film and Publications Board (FPB) that may not be as benign as they seem.

I’m certainly no lawyer and I am very definitely not in favour of any form of child pornography, but reading the legalese contained in the act leaves me with a sense of foreboding. In particular the act paves the way for what the Freedom of Expression Institute (FXI) calls “pre-publication censorship and self-censorship” by establishing a requirement for non-recognised publications to have content approved by the FPB prior to publication or face up to five-year’s imprisonment or a fine. The newly-amended section 16 says (paraphrased) that “any person may request that a publication be classified if it (among others) degrades a person, constitutes incitement to cause harm, advocates propaganda for war, incites violence or advocates hatred based on any identifiable group characteristic and that constitutes incitement to cause harm”. Exempt from these regulations are those “bona fide newspapers” recognised by the Press Ombudsman.

Essentially this means that everyone else is responsible for submitting anything that might seem “offensive” under this act to the board for approval before publication, a situation which is almost certainly unworkable. The sheer volume of submissions would surely swamp the board.

Nevertheless it ought surely to be of concern that there exists a law which could be applied (even randomly) against publishers that fail to submit content to the board. Right now we live in a country with a mostly benign leadership but this may not always be the case. The very public and ugly spats over the ANC leadership over the past year give some indication of the potential for things to change very quickly. It’s also worth remembering ANC spokeswoman Jessie Duarte’s vitriolic attacks on the media earlier this year.

I worry that this type of legislation in the wrong hands could go horribly wrong.