South Africa

Films and Provocations Board: An institution’s folly

By J Brooks Spector 4 June 2012

Following the Film and Publications Board’s decision to slap a “no 16 years or younger” restriction on electronic or other images of Brett Murray’s controversial painting, The Spear, J BROOKS SPECTOR contemplates the decision in terms of the board’s responsibilities as well as its larger meaning in a wired world.

Almost 40 years ago, as a young diplomat, I supervised the American embassy’s library in downtown Johannesburg, as well as the newly established branch library in Soweto. One key bi-monthly task was to review various lists of books published in America to determine which ones should be added to our two collections. Aside from avoiding highly technical or overly specialised materials – we only had space for a collection of about 10,000 books – the goal was to select the best new books about America – its history, literature, social and political developments, economic issues and education. The libraries also had popular selections of contemporary American magazines that usually arrived weeks ahead of those in bookstores or other libraries around the country.

This, of course, was during the heyday of apartheid as well as the official Calvinist ethos pervading virtually every one of the country’s governing institutions. Stocking a library couldn’t totally avoid these influences – even a library run by a foreign embassy. To be aware of government decisions, we subscribed to something called Jacobsen’s Index (curious readers can still buy bound copies of it on the internet) that supposedly listed every film, magazine, book, record album cover, bumper sticker, postcard, T-shirt and printed bit of ephemera that had been determined to be out-of-bounds for South Africa’s sensitive, easy-to-influence minds.

The range of no-go areas was astonishingly extensive. Among other things, it included Marxist political doctrine, various ANC, PAC and black consciousness publications, pictures of banned or imprisoned figures, manifestos from African liberation movements like Frelimo, at least one novel by Nadine Gordimer, and Erica Jong’s popular Fear of Flying, as well as nipples, pubic hair, interracial couples, Malcolm X – and, I swear I’m not making this up, the classic children’s tale of a spirited horse and the child who loved it, Black Beauty.

(Back in 1990, we bought a T-shirt with the title, “Half Nelson”, that got around being proscribed by the expedient of having only half of Nelson Mandela’s face in any of the images printed on the shirt. True story.)

Besides trying to identify and select books and magazines that – broadly speaking – spoke about the US in generally positive terms, our office’s diplomats and staff all agreed we couldn’t exclude material about American race relations, minority social circumstances and the civil rights revolution, even if the government in South Africa might have another view on the matter. But there was that pesky Jacobsen’s Index and the proscribed items it listed.

Our bureaucratic problem, as defined then, was to avoid having library patrons arrested for borrowing prohibited materials from us. Because it was an open facility – there were no guards or security gates back then – there was almost always somebody sitting there who reported to the Special Branch police, watching who came in and what they read while they were our library’s patrons. This mattered to them because the SB played for keeps – it clearly understood ideas could have power – especially those dangerous ideas about liberty and freedom of expression.

What it meant for us, however, was an intra-office debate about putting a subscription to Ebony magazine out on the shelves, because Ebony was effectively under a blanket, continuing ban. So, the question was should we include it because of its importance in African-American life or should we not do so because of that ban? Eventually, after years of wrangling, we subscribed to it and let people check out back issues if they wanted to – after deciding that if America’s representatives abroad were self-censoring themselves as advocates of freedom of speech we were in some seriously deep waters all by ourselves. Sometimes things are complicated or simple, depending on your starting point.

Back then, the Film and Publications Control Board had been part of South Africa’s ministry of home affairs – although the ministry of justice imposed banning orders on individuals and groups. Post-1994, as actual censorship was eliminated, the board was reshaped into a new Film and Publications Board and charged with its primary task of providing ratings on films and video tapes – using those little symbols that warn of nudity, violence, sex and vile language and restricting attendance in cinemas via those no one-under-18 ratings, for example.

The FPB says its primary task is to create a “credible and visible content-classification authority” through the classification of content “maintaining relevance to the values and norms of South African society through scientific research; balancing the right to freedom of expression with an obligation to protect children from exposure to potentially disturbing, harmful and inappropriate materials; and [to] protect children from sexual exploitation in media content, in order to educate the broader South African society to make informed choices”.

It goes on to explain the purposes of the Films and Publications Act are to “Regulate the creation, production, possession, and distribution of certain publications and certain films by means of classification, the imposition of age restrictions and giving of consumer advice and make exploitative use of children in pornographic publications, films or on the internet punishable….” Running through all the guidance in the FPB’s founding legislation is a clear, highlighted focus on children and the chances of their exposure to pornographic images.

Organizationally, the board is appointed by the home affairs minister but the board’s work is carried out by a permanent staff of about 15 – together with a group of anonymous examiners who parse potentially offending items. The FPB’s current chairwoman is Thoko Mpumlwana, an educational policy and gender issues specialist who serves on this board as well as numerous other national boards and councils. Mpumlwana was a black consciousness activist years ago.

Meanwhile, the full-time CEO, Yoliswa Makhasi, has described herself as being “passionate about youth development and as CEO of the Film and Publication Board she feels that the organization does contribute positively towards youth and protecting children”.

The relevant South African Government Gazette says “The Film and Publications Act, Act No 65 of 1996, as amended, requires all films, games, and publications to be classified by the Film and Publications Board (“FPB”), before they may be distributed (including to sell, hire out or offer or keep for sale or hire. It includes to hand or exhibit such material to a person under the age of 18 years in certain circumstances, and includes the failure to take reasonable steps to regulate access to films, games or publications) or possession (including keeping or storing in or on a computer or computer system or computer data storage medium and also having custody, control or supervision on behalf of another person).”

Importantly, “the purpose of classification is to: (a) provide consumer advice to enable individuals to make informed viewing, reading and gaming choices for themselves as well as for children in their care; and  (b) protect children from exposure to disturbing and harmful materials and from premature exposure to adult experiences.” All material that meets the criteria of a film and game as defined in the Act, falls within the jurisdiction of the FPB. This includes films exhibited at cinemas, DVD’s, Blu-Rays, video on demand, mobile content and the internet.”

Interestingly, the next paragraph, describing the limits of the FPB’s purview, adds: “All publications that are not bona fide newspapers published by a member of a body, recognised by the Press Ombudsman and which subscribes and adheres to a code of conduct, enforced by that body, falls within the jurisdiction of the FPB.”  Curiously, too, as far as iMaverick could determine from the documents available, the simple depiction of male genitalia in a state of non-arousal is not defined, a priori, as pornographic by the applicable regulations, unless it would simultaneously fall under the characterisation of “undue display.”

The FPB explains its modus operandi, saying it monitors and visits “distributors and exhibitors of films; DVDs and games in order to ensure that outlets are properly registered with the board and that compliance with Act is adhered to in terms of sections 27 and 28 which prohibit the possession or distribution of child pornography to children. Exception in terms of section 24 is granted for the distribution or viewing of X18 pornographic materials where the holder of the licence complies with provisions of the Act to conduct his/her business in adults’ only premises.” Again that child pornography-centric approach seems central to both the FPB’s activities and its legislated focus.

The FPB’s website adds: “Distributors are therefore required to ensure that the age restriction, consumer information and any other condition imposed by the Board are clearly displayed in all advertisements and on the cover or packaging of every film. Film and Publication Board encourages partnerships with various stakeholders in the industry including the general public to ensure that we protect children against the distribution or viewing of potentially harmful, disturbing or inappropriate materials/images.”

And so we come to what the FPB actually decided on the first of June. Consistent with the regulations and guidance noted earlier, the board’s decision began by saying “Child Protection is at the heart of our mandate and we exercise our duties with interests and needs of children in mind.”

To do this it must:

  1. Provide consumer advice to enable adults to make informed viewing, reading and gaming choices, both for themselves and for children in their care.
  2. Protect children from exposure to disturbing and harmful materials and from premature exposure to adult experiences; and
  3. Make the use of children in and exposure of children to pornography punishable.”

Although the FPC says it was responding to numerous complaints over the images of The Spear when it established a prohibition of access to those 16 and under, the FPB’s own statement specifies only “Two of those complaints subscribed to the procedure set out in the Film and Publications Act and thus formed the basis for our decision to send a group of classifiers to the Goodman Gallery on 21 May 2012. The complaints received related to the painting and its appropriateness to be exhibited, published and broadcast in public platforms where children and sensitive viewers could be exposed without prior warning.”

Of course this ruling affects a painting that was already sufficiently obscured by defacement that it now looks more like an early Jackson Pollack abstract expressionist try-out than anything else. The rest of the FPB’s ruling, affecting newspaper websites, has effectively been the shutting of a digital barn door well after this particular cyber-horse was on the way to the next province.

Left unanswered, even unaddressed, is the question of how, precisely, this ruling relates to the thousands of art works on the internet depicting the nude in some way as well as thousands of other nude or near-nude images in art books already available, the length and breadth of this country in homes, libraries, art schools and book stores – let alone emblazoned on giant billboards or construction hoardings to surprise the unwary.

A very quick check of the internet as this story was being researched called up over 63 million visual references to Michelangelo’s very naked David, some 2.7 million references to Botticelli’s equally unadorned Birth of Venus, more than three million website citations for Goya’s La Maja Desnuda, a third of a million links to Robert Mapplethorpe photographs of naked and near naked homoerotic art – plus around 1.7 million references (okay, not all of them are of the original work) to Brett Murray’s phallocentric painting.

But after reading and thinking about the FPB’s ruling, numerous questions arise, begging to be answered. Just for starters, does the FPB seriously expect its writ will be applied to images in servers located everywhere around the globe or accessible in all those mirror sites that are everywhere and nowhere? As the FPB itself admitted as much when it argued: “Indeed, the painting has gone viral and may be difficult to police and contain; however, that does not mean we must fold our hands and allow for further exposure of children and sensitive viewers who have not yet been exposed. It is our intention to engage our local and international partners including the Internet Service Providers Association (ISPA), Wireless Application Service Providers Association, Press Ombudsman, search engines etc. in seeking avenues to enforce this decision going forward.” Well good luck on that in dealing with some website housed in Shanghai, Murmansk or Rio.

But, if the FPB’s real goal was to prevent the sudden, unexpected exposure of male nudity to the eyes of children younger than 16, does the FPB similarly expect bookstores and libraries will lock the shelves of art materials and require special permission to peruse the pictures by under 16s, just as the apartheid regime had required special permission for students to read prohibited novels, histories and sociological studies in their universities for their classes and theses?  Or that somehow this ruling will prevail upon artists to eschew social commentary that may draw upon physicality and the human form? This is back to the future, er, past, with a vengeance and it may well encourage artists, a notoriously perverse lot, to step up their game instead.

Despite its requirements to deal with the relationship between children and pornography, rather than to exercise aesthetic judgments about artistic quality (something not, apparently, to be found in the governing regulations), perhaps the FPB should really be slated for its failure so far to adopt a vigorous, pro-active stance against the pervasive access by almost anyone with such an interest, a computer and access to the Internet to connect to the seriously repulsive child pornography sites available.

South Africa remains a society that has had real trouble coping with a sea of sexually explicit material – something it shares with most societies in this globally wired world – as well as the kind of attitudes that allow the gang rape of mentally impaired young women (and the posting of such acts on the internet) as well as a national plague of rape more generally. And it is also a place, now, in which hundreds of Grade 3 students have become pregnant, according to national data from the department of basic education. And so, the question becomes instead: Will restricting the formerly real image of The Spear contribute to reining in such behaviour – or is it simply a distraction from such national disasters in dealing with teen sexuality, in addition to its being an assault on free expression and a distraction from other pressing national issues?

Still, despite the elemental silliness and destructiveness of this national face-mugging, rude gestures and hair-pulling over Murray’s now defaced painting, it is possible it may yet have  some kind of positive effect if it gives politicians sufficient backbone to confront the true pornography of rape and sexual abuse.

Implicit in all of this has been the assumption – especially once President Jacob Zuma called attention to it in Parliament – that all rights are of equal weight in South Africa. That is, the president’s right to dignity in person and via his office somehow balances any counterpart rights to freedom of expression and free speech. Can this really be a correct understanding of the notion of inalienable rights? Does a right to dignity really trump an ordinary citizen’s right to life, liberty, a fair trial, elemental privacy, and to be protected from unreasonable search, seizure, or confiscation of property? Where does an individual’s right to free speech, assembly, and religion (or the lack of it) rank, versus someone’s assertion of a right to dignity? Shouldn’t the argument follow, instead, influential legal philosopher John Rawls’ statement “that certain rights and freedoms are more important or ‘basic’ than others”?

Equality comes, instead, in this understanding, with the belief that “each person has an equal claim to a fully adequate scheme of equal basic rights and liberties.” The equality comes in everyone having the same rights, rather than all rights interminably checkmating each other in the courts.

Like the need to focus on the relationship between a created image and inappropriate sexual behaviour, South Africa now has some unfinished business in sorting out just how rights must be weighed between citizens – and between the various rights. But, if Brett Murray’s controversial painting has done nothing else, it has now forced South Africans to confront these questions in a contentious public space. And for the past two weeks, a piece of art – and the argument of what it means – has been front page news. This is surely a first for South Africa. DM

For more, read:

  • Film and Publications Act – South Africa Government Online;
  • FPB CLASSIFICATION OF ‘THE SPEAR’ ARTWORK 01 June 2012, as well as full information on its overall responsibilities and tasks as well as the Government Gazette regulations applicable to the FPB are available at the FPB website and the subpages
  • Zuma could spearhead an online assault in M&G.
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"A long habit of not thinking a thing wrong gives it a superficial appearance of being right and raises at first a formidable outcry in defence of custom. But the tumult soon subsides. Time makes more converts than reason." ~ Thomas Paine

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