In this case, it was argued that certain provisions of the Films and Publications Act 65 of 1996 should be declared unconstitutional. Section 16(2)(a) of Act 65 of 1996 provided for the pre-publication classification of certain materials of a sexual nature. Any person, except a bona fide newspaper subject to a press code, was required to submit any publication containing such material to the Film and Publication Board before publication. The publication would be banned, allowed to be distributed subject to restrictions, or allowed to be freely distributed.
Section 16(2)(a) had a wide ambit. The Constitutional Court pointed out that the definition of ‘publication’ in the Act included (in addition to newspapers, exempted from its provisions) books, paintings, prints, photographs, engravings, lithographs, magnetic tapes and soundtracks.
The applicants argued that, in addition to the harsh penalties for non-compliance (a fine and/or imprisonment for up to five years), the vagueness and overbreadth of section 16(2)(a) and the indeterminate delay occasioned by the classification process might lead to self-censorship and exert a ‘chilling effect’ on the right to freedom of expression. The limitation of this right, the applicants argued, could not be justified in a democratic society based on human dignity, equality, and freedom.
The right to freedom of expression is protected by section 16 of the Constitution. The Constitution provides (in section 36) for the limitation of rights under certain circumstances, none of which were present here. The Court held that the right to freedom of expression embraces the liberty to express and to receive information or ideas freely and to form one’s own opinion about these. In this way, it both promotes and protects the moral agency of individuals.
The Court held that the limitation of the right to freedom of expression by the impugned provisions of Act 65 of 1996 was not justifiable. There were less restrictive means of achieving the provisions’ aim.
The Court declared section 16(2)(a) of the Films and Publications Act to be unconstitutional and made further related orders.