THE FPB DECISION OF FEBRUARY 2014:

The majority decision is that the film does not contain child pornography. After discussions we
unanimously agreed that the film in question does not contain child pornography based on the
fact that the contentious scene, around 67 minutes of the film. This film appears to have artistic
merit. It does not appear to stimulate erotic sense but aesthetic artistic merit in its overall
context. All the DVDs in this police case do not contain child pornography according to
reasons in this report.
And the reasons all DVDs in the case do not contain child pornography is that the films have
aesthetic artistic merit?
INTRODUCTION
The decision of the Film and Publication Board (FPB) (above) raises a number of important questions,
especially:
1
Is the decision based on the proper interpretation of the definition of child
pornography in the Criminal Law (Sexual Offences and Related Matters) Amendment Act, No 32
of 2007, given that this was a police and not a distributor or exhibitor case, as well as the proper
implementation of section 18(3) of the Films and Publications Act, No 65 of 1996? Section 18(3)
makes it clear that no image or scene involving child pornography can be exempted from
illegality even if, within context, it is a bona fide documentary, is of scientific, dramatic or artistic
merit or is on a matter of public interest18
(3)
The classification committee shall in the prescribed manner, examine the film or game
referred to it and shall
(a)

classify the film or game as a refused classification if the film or game

(i)

contains child pornography, propaganda for war or incites imminent violence; or

(ii)
advocates hatred based on any identifiable group characteristic and that constitutes
incitement to cause harm,
unless, judged within context, the film or game is, except with respect to child pornography, a bona
fide documentary, is of scientific, dramatic or artistic merit or is on a matter of public interest
2
Since aesthetic or erotic feelings are subjective and not objective, does it mean that no
single human being, including a paedophile, will enjoy eroticism from any image of a child,
whether of a sexual nature or not and even of a so-called artistic nature? (If that DVD was part
of the collection of images and videos of the possessor is that not evidence of the fact that the
possessor was experiencing sexual gratification from all his possessions?)
3
Do the classifiers understand the stark reality of child pornography and the fact that
images of child pornography, whether of a sexual nature or just explicit, are child abusive
images - impairing and degrading the dignity of all children, and not just the child-victims, by
portraying children as sexual objects?

4
Do the classifiers understand that child pornography created by the sexual abuse of real
children is not only the actus reus of a child pornography crime (and offence) but also a crime
scene?
5
Did the FPB realise that the DVDs were not submitted for classification by a distributor
but by law enforcement and, therefore, the definition of child pornography in the Criminal Law
(Sexual Offences and Related Matters) Amendment Act, No 32 of 2007 should have been the
context of their decision? Since the Criminal Law (Sexual Offences and Related Matters)
Amendment Act, No 32 of 2007 was not the context, the decision of the FPB was unlawful.
I have no idea what sections of what Act is the basis of the FPB decision! According to both the
Criminal Law (Sexual Offences and Related Matters) Amendment Act, No 32 of 2007 and the Films and
Publications Act, No 65 of 1996, child pornography remains illegal whether or not it arouses or
stimulates erotic or aesthetic feelings. Images, scenes and descriptions falling within the
definitions of child pornography in both those Acts cannot become legal because of the
feelings it stimulates or arouses an illegal image or scene cannot be made to become legal by
changing its format for aesthetic feelings.
As the Supreme Court of Canada held in the case of R v Sharpe (2001] 1 S.C.R), child
pornography does not depend on what was in the mind of the mind of the maker or possessor,
but in the capacity of the representation to be used for purposes like seduction. It is the
meaning which is conveyed by the material which is critical, not necessarily the meaning that
the author intended to convey...The test must be objective, based on the depiction rather than
what was in the mind of the author or possessor.
And in the case of New York v Ferber [458 U.S. 747 (1982]), Justice OConnor, in her
concurring opinion of the US Supreme Courts ruling that child pornography was not protected by the
First Amendment even if it was not obscene because it was intrinsically related to the sexual abuse of
children, held ....that societys interest in any child pornography material is irrelevant in
protecting children from psychological, emotional and mental harm.
Although I have not seen the scenes referred to in the FPB report, I do believe, according to the report,
that there are scenes which fall within the definitions of child pornography but, according to the FPB,
are legal because they are of artistic merit!
WHAT IS CHILD PORNOGRAPHY?
Fundamental to appropriate, and effective, legal and social responses to the sexual abuse and
exploitation of children through child pornography is a proper understanding of the complexities
involved in not just the creation, but also the dissemination and sinister use of child abusive images.
The intersecting issues which arise from child pornography include child protection concerns,
technological architecture, politics of the Internet and the implication of offenders who operate in
cyberspace but whose devastating effects are most keenly felt at the local level and within
communities. Images of child pornography are child abusive images, and are abusive, degrading and
impairing of the dignity of all children and not just the child-victims used in its creation. Child abuse
images portray children as sexual objects and serve as a tool for the grooming of children for sexual
abuse and exploitation as one paedophile confessed when convicted of sexually abusing a number of
children under the age of six: child pornography was my gateway drug...when I could not get my fix

from pornography, I moved on to hands-on offending (Child pornography was my drug: Peace Corp
man tells judge why he abused SA children: The Star, 5 October 2012)
Child pornography reinforces cognitive distortions, serving to normalize the subversive, and also to fuel
fantasies regarding future physical violations of children. Child pornography is, therefore, not only the
memorialisation of the abuse and exploitation of child-victims but also the promotion of
intergenerational sex. While it is self-evident that the creation of child pornography occasions direct
sexual harm to the children subjected to this form of physical violation, it is equally the case that the
possession and use of any image which sexually objectifies and degrades any child is likewise
devastating to the sexual dignity and safety of all children.
Is child pornography a crime or an offence? Most people see no difference between a crime and an
offence and use these words interchangeably. But there is a difference between a crime and an
offence. According to Barrons Dictionary of Legal Terms, a crime is a wrong that is injurious to the
public and that may therefore be prosecuted in a criminal proceeding, while an offence is a violation of
law for which a penalty is prescribed. And according to the Oxford Dictionary of Current English, a
crime is an evil act, while an offence is an illegal act. Child pornography, then, should be seen both
as a crime and an offence - an evil act that is injurious to children and the public and a violation of
laws prohibiting all acts related to the sexual abuse, exploitation and degradation of children. Seeing
child abuse images as simply as an offence trivialises the evil that it causes to all children in particular
and society in general. Given that judicial decisions are based on conclusions drawn from facts
presented to a court, it is critical to deal with proper facts about the reality of child abuse images that
child pornography is not just an offence of the violation of anti-child pornography laws but also a crime
of evil acts against all children not just the child-victims but all children being portrayed as sexual
objects. If child pornography is not seen as a crime, then it is not even an offence in countries without
laws specific to child abuse materials.
Generating inappropriate sexual fantasy in an individual opens the risk of that fantasy becoming a
reality....as confirmed by a number of tragic landmark cases. Watching a sexual assault may normalize
that activity and encourage the viewer subsequently to commit such assault. A real risk lies in
pornographic material becoming the model that encourages and generates viewers to take
photographs themselves in other words, for some people it provides the stimulus (when other
circumstances allow) to cross the boundary from viewing to actual abusing.
The distribution, possession and viewing of child abuse images, as well as its creation and production
even if not involving real children, should, therefore, be seen as an evil act against all children - and not
just the child-victims depicted in the images. Those who distribute, make available on P2P networks,
possess or access child pornography should be seen as accessories to the sexual abuse and
brutalisation of children and should be treated as being in some degree complicit in the original abuse
which was involved in the making of the images.... Sentences for possession should also reflect the
continuing damage done to the victim or victims, through copying and dissemination of the
pornographic images. Those who make or distribute the images bear a more direct responsibility for
their eventual use, as well as for encouraging further production. Distributing and viewing child
pornography, therefore, ensures the continued and even increased availability of the child abuse
images.

CAN AN ILLEGAL IMAGE BECOME LEGAL IF ITS FORMAT IS CHANGED?

Child pornography images are child abusive images and are illegal in almost every single country. No
legal definition of child pornography in any country includes any exemption from its illegality even if it
is seen by some as of artistic merit. An illegal image cannot be made legal by changing its format.
Non-erotic images or images of a so-called artistic merit, such as nude pictures of children or even
semi-naked pictures focussing on the genitals of children, are still child abusive images because they
portray children as sexual objects, impair the dignity of children and may be used for the grooming of
children for intergenerational sex and even making child terrorists move from the mere viewing of such
images to the actual hands-on sexual offending of children as confirmed in the Child pornography
was my drug: Peace Corp man tells judge why he abused SA children report in The Star of 5 October
2012).
Non-erotic (artistic) child abusive images may allow for reduced sentencing but not from any nonconviction for the possession or distribution of child abusive images. Parts of the definitions in both the
Acts dealing with child pornography confirms that

child pornography means any image, however created, or any description or presentation
of a person, real or simulated, who is, or who is depicted or described or presented as being,
under the age of 18 years, of an explicit or sexual nature, whether such image or
description or presentation is intended to stimulate erotic or aesthetic feelings or not....
Criminal Law (Sexual Offences and Related Matters) Amendment Act, No 32 of 2007

showing or describing the body, or parts of the body, of such person in a manner or in
circumstances which, within the context, violate or offend the sexual integrity or dignity
of that person or any category of persons under 18 or is capable of being used for the
purposes of violating or offending the sexual integrity or dignity of that person, any
person or group or categories of persons - Criminal Law (Sexual Offences and Related
Matters) Amendment Act, No 32 of 2007

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 - Films
and Publications Act, No 65 of 1996, as well as in the classification sections of the Films and
Publications Act, No 65 of 1996 that

18 (3) The classification committee shall in the prescribed manner, examine the film or game
referred to it and shall
(a)

classify the film or game as a refused classification if the film or game

(i)

contains child pornography, propaganda for war or incites imminent violence; or

(ii)
advocates hatred based on any identifiable group characteristic and that constitutes
incitement to cause harm,

unless, judged within context, the film or game is, except with respect to child pornography,
a bona fide documentary, is of scientific, dramatic or artistic merit or is on a matter of public
interest.
Section 18(3) makes it clear that no image or scene involving child pornography can be exempted
from illegality even if, within context, it is a bona fide documentary, is of scientific, dramatic or artistic
merit or is on a matter of public interest.
In many countries, especially in the United Kingdom, sentencing policies are based on the different
levels of child pornography from Level 1 to Level 5 in the United Kingdom, as reported in The Panel's
Advice to the Court of Appeal on Offences Involving Child Pornography, chaired by Prof Martin Wasik,
August 2002.
Level 1 includes non-erotic child pornographic images, such as common pictures of children taken
from family albums. The reasons for inclusion of these kind of photograph within the material related to
adult sexual interest in children...is that the extent to which a photograph may be sexualised and
fantasised over lies not so much in its objective content, but in the use to which the picture might be
put. As Professors Max Taylor and Ethel Quayle observed in Child Pornography: An Internet Crime
(Brunner-Routledge, 2003, page 32):
Level 1 child pornography includes non-erotic and non-sexualised pictures showing children in their
underwear, swimming costumes, etc. from either commercial sources or family albums; pictures of
children playing in normal settings, in which the context or organisation of pictures by the collector
indicates inappropriateness such as that of posting an image of a baby-in-the-bathtub onto a
pornography website.
(See Are bath-time photos child pornography at http://www.sfgate.com: The Demarees took a
memory stick with family photos for printing to a printing centre in Peoria, Arizona. Included among the
photos were pictures of three children, all under five years, partially nude in a bathtub. An employee of
the printing centre saw these pictures as child pornography and contacted the police. The police
agreed that the pictures amounted to child pornography .....the young girl appeared to be posed in a
provocative manner..... Peorias Child protection Services searched the Demaree home and took
custody of the children for a month while investigations continued. Lisa Demaree was suspended from
her school job for a year and the names of both parents were placed on the sex offender
register.....however, the Demarees were found not guilty when they were able to prove that the pictures
were for a family album and not for any website. AndRaising the Bar, a legal show on TNT in the USA, recently aired an episode which centered around a
father accused of endangering his child and promoting child pornography. He had taken a picture of his
son in the bathtub, showing the childs penis and posted it on the Internet. That picture soon appeared
on a child pornography website posted to the site by a person who grabbed it off the fathers personal
website. Had that picture remained in the family album, there would have been no problems. But the
context changed when it was posted on to the Internet, even if to the fathers personal website,
because it was then capable of being used for the purpose of sexual exploitation as, in fact,
happened when it was subsequently grabbed from the fathers website and posted onto a child
pornography website.)

CONCLUSIONS
Images or scenes that some may see as non-erotic or of an artistic nature cannot be exempted from
illegality if they fall within the definitions of child pornography within South African laws specific to child
pornography while a legal image can become illegal on the basis of a change in its context or format,
an illegal image will remain illegal regardless of whether it is non-erotic or artistic and regardless of any
changes in its format. An image of a baby-in-the-bathtub, for instance, non-erotic or artistic, is legal
for a family album but may be deemed illegal if posted on a website.....
Section 39 of the Constitution provides that, when interpreting a Bill of Rights, a court, tribunal or forum(a)
must promote the values that underlie an open and democratic society based on human
dignity, equality and freedom;
(b)

must consider international law; and

(c)

may consider foreign law.

Section 28(1)(d) of the Bill of Rights provides that every child must be protected from maltreatment,
neglect, abuse or degradation. Since child pornography is the abuse and degradation of children,
did the FPB follow section 39 of the Constitution by considering international laws and foreign laws, as
provided in the Sharpe and Ferber cases?
Did the FPB even properly interpret the definitions of child pornography as well as section 18(3) of the
Films and Publications Act? Obviously not, according to its report!
A film containing materials which, judged within context

amounts to propaganda for war

incites to imminent violence

advocates hatred that is based on race, ethnicity, gender or religion and constitutes incitement
to cause harm, or

amounts to child pornography as defined in the Act

should not be assigned a rating or a classification because such content is illegal. The Act does
not provide the Board with any authority to approve, by classification, the distribution of illegal
content. Since Illegal content may not be distributed or exhibited in public, or even created,
produced, accessed, imported or possessed in the case of child pornography, they should be
refused classification and, in appropriate circumstances, referred to the police.
Child pornography, or, more appropriately, child abusive image, is a global crime and requires an
international legal and social response through harmonised interpretation of the crime and sentencing
policies. No international conventions or treaties on the rights of children or foreign laws specific to
child pornography exempt child abusive images from being a crime and an offence on the basis of
artistic merit.
Society cannot claim to abhor the sexual abuse and exploitation of children and yet allow the portrayal
of children as sexualised objects even from images that are subjectively seen as of an artistic nature.
(See also THE EXPLOITATION OF THE SEXUALITY OF CHILDREN, Iyavar Chetty, April 2009.) In

fact, as Albert Einstein said, the world has become a dangerous place not because of people
who do evil but because of people who sit by and let it happen people who sit by and let it
happen include people who have no proper understanding of child pornography or proper
interpretation of relevant laws.
The FPB does not show a proper understanding of the Films and Publications Act. The context of all
sections of the Act related to the classification of films, games and publications is Administrative Law.
But a section of the Act related to child pornography offences is part of Criminal Law and criminal law
is a matter for law enforcement and criminal courts and not administrative organisations.
Sections 16(6) and 18(5) of the Act are clear and unambiguous any film, game or publication
containing child pornography submitted to the FPB must not be classified but referred to the police for
investigation and prosecution. A decision whether or not it is child pornography is a matter for criminal
courts and not an administrative organisation like the FPB.
More importantly, because the DVDs were sent by law enforcement and not distributors,
exhibitors or broadcasters, the context of the decision should have been the Criminal Law
(Sexual Offences and Related Matters) Amendment Act, No 32 of 2007 and not the Films and
Publications Act which is not a criminal but an administrative law.
Clearly the problem is the lack of understanding by the FPB of Section 33 of the Constitution
which provides that everyone has a right to administrative action that is lawful, reasonable and
procedurally fair and that everyone whose rights have been adversely affected by
administrative action has the right to be given written reasons.
The minimum requirements of lawfulness, reasonableness and procedural fairness are not difficult to
understand and follow:
Lawful
Given that constitutional democracy is founded on the values of the supremacy of the Constitution and
the rule of law, administrators, authorised by law for making administrative decisions, must obey the
relevant laws related to the making of an administrative decision. Any decision inconsistent with
relevant laws will be an unlawful and invalid decision. Administrators must comply with relevant
sections of the Constitution and the doctrine of legality.
In so far as the Film and Publication Board (Board) is concerned, classification decisions can only be
made by classification committees appointed by the Board in terms of section 10. Any change to the
composition of a duly-appointed classification committee, unless made by the Board, or any change to
the film to be examined for classification, unless made by the Board, would render that committee and
its decision unlawful and invalid that decision would be the proverbial fruit of the poisoned tree
because it would have been made either by a classification committee not appointed in terms of section
10 or about a film not referred to the committee in terms of section 18(2).
The FPB must ensure that classification committees apply the correct law in making classification
decisions.
Reasonable
What is reasonable is a matter of fact. The FPAct does not provide either a definition or a test of what is
reasonable. The issue of the reasonableness of a decision is difficult and, to a great extent, is very

subjective and dependent upon the particular decision, the subject-matter and the person or authority
making that decision. In the context of the objectives of the FPAct, clearly any decision made without
due regard to the protection of children would be an unreasonable decision and may be invalid. As the
expression itself suggests, a reasonable decision is one that is based on reason and not emotion and
that there are reasons for that decision. A decision made without indicating the reasons for that
decision would be an unreasonable decision especially where there is a right of appeal.
In so far as case-law is concerned, the most often-cited pertinent question is whether the decision is so
unreasonable that no reasonable person could have made it. Lord Diplock described the test as being
a consideration of whether a decision is so outrageous in its defiance of logic or of accepted moral
standards that no sensible person..could have arrived at that decision. 1
Reasonableness is not really about right or wrong. In making a classification decision, for instance, it
is about whether or not the decision was based on an examination (actual viewing) of the film itself and
the proper application of the guidelines. The report of a classification committee must show the
process involved in making the decision, all relevant factors in making the decision and that the
decision was based solely on those relevant factors.
Since each classification decision is that of a classification committee, what will be a valid reasonable
decision will depend on the circumstances of each classification committee, such as the

nature of the decision;

identity of members of the classification committee;

range of factors relevant to the decision; and

reasons given for the decision.

Procedural fairness
Administrative action which impacts adversely on the rights of any person must be procedurally fair. A
film classified 18 years, for instance, affects the right to freedom of expression of all persons under the
age of 18 years - not directly but indirectly since a distributor of such a film will be legally bound not to
allow distribution of such films to persons under the age of 18 years.
A decision that a film may not be distributed except from within premises forming part of a building and
only by the holder of a licence to conduct the business of adult premises also affects the right of a
person to choose a trade, occupation or profession freely 2. Since the standards of fairness are not
immutable3 and depend on the particular circumstances of each case, procedural fairness in the
classification of films requires, at the very least, that the applicant for classification knows the purpose
and significance of classification, the procedures involved, the guidelines that will be used, the
applicable fees and the procedures for lodging appeals.
Iyavar Chetty
Feb. 2014

Council of Civil Service Unions v Minister for Civil Service [1985] AC 374
Section 22 of the Constitution
3
Board of Tariffs and Trade v Brenco Incorporated, SCA 2001
2