Content Regulation / Censorship, Political Expression
Zhang v. Baidu.com, Inc.
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The High Court of South Africa set aside a decision of the Film and Publication Appeal Tribunal (Tribunal) that reclassified a controversial film as X18 because it depicted secretive initiation rituals and a same-sex relationship in the context of these rituals. The distributor and producer of the South African film Inxeba (translated as “the Wound”) brought an application to the High Court to review and set aside the decision of the Tribunal. They argued that the Tribunal’s reclassification interfered with free speech because it meant that only a holder of a licence to conduct the business of adult premises could distribute the film to persons older than 18, despite the fact that the film contained no explicit sexual content. This meant that the film, which was originally classified as suitable for persons over the age of 16, could not be shown in cinemas. The High Court examined the decision of the Tribunal, and conducted a balance between the right to freedom of expression and cultural rights, and found that the decision could not be overturned on its merits. Nevertheless, the High Court concluded that the decision could not be upheld for procedural reasons, including the fact that the distributor and producer of the film were not afforded a proper opportunity to participate in the proceedings before the Tribunal. Accordingly, the Tribunal’s decision was set aside and the film’s classification as X18 was removed.
Columbia Global Freedom of Expression notes that some of the information contained in this report was derived from secondary sources.
On July 6, 2017, the Film and Publication Board of South Africa (Board) classified the film Inxeba (translated as “The Wound”) as not suitable for viewers under 16 (16LS). The film concerns a Xhosa initiation school in rural Eastern Cape, South Africa which was criticised by the Congress of Traditional Leaders in South Africa (CONTRALESA) as “an inaccurate depiction of Xhosa initiation and as revealing sacred traditional aspects.” The film depicted a closeted relationship between two men in the context of the Xhosa initiation. This initiation is a rite of passage to manhood and fatherhood in the Xhosa tradition. Secrecy is entrenched in the practice of the initiation, and sexual intercourse was a taboo subject because it contradicts the idea of ritual purity.
In January or February 2018, the Man and Body Foundation and CONTRALESA approached the Board and sought assistance to launch an appeal against the classification of the film based on their belief that it infringed their cultural rights.
On February 8, 2018, the Indigenous Film Distribution – the distributor of Inxeba – was informed of the appeal, and was told that the appeal would go ahead before the Film and Publication Appeal Tribunal (Tribunal) on February 13, 2018. Indigenous Film Distribution sought a postponement of the appeal, but the Tribunal dismissed the request on the grounds that a postponement would be an “indulgence”. [para. 24] The appeal was heard that day, and the Tribunal handed down its decision on February 23, 2018. The Tribunal granted the appeal, set aside the decision of the Board, and classified the film as X18. This classification meant that only a holder of a licence to conduct the business of adult premises may distribute the film to persons older than 18.
The Tribunal afforded the Board, the Man and Body Foundation and CONTRALESA opportunities to submit written heads of argument in advance of the hearing, but the producers (Urucu Media) and distributors (Indigenous Film Distribution) of the film were not. Due to the limited notice they were given that the hearing would be held on February 13, 2018, they could only make oral representation without assistance from counsel.
Indigenous Film Distribution and Urucu Media launched proceedings in the High Court to review and set aside the decision of the Tribunal to reclassify the film. The Right2Know Campaign and the South African Screen Federation applied to be admitted as amici curiae in the High Court proceedings.
The matter was heard in the High Court on an urgent basis and, on March 6, 2018, the High Court issued an interim order which permitted the continued exhibition and distribution of the film as if it had been classified as 18 (which meant it could be shown in cinemas again while the High Court considered the matter). The final decision was delivered on June 27, 2018.
Raulinga J delivered the final judgment of the High Court (Court).
Raulinga J dismissed the amici’s application on the basis that “the majority of the submissions intended to be made by the amici applicants are submissions that the parties in the review application have already advanced and are therefore already before this Court.” [para. 16] He also reasoned that the Court may consider “all international instruments referred to by the amici applicants without resorting to their assistance”. [para. 18]
Indigenous Film Distribution and Urucu Media argued the matter on both procedural grounds and on the merits. Their main procedural arguments were that the Tribunal’s proceedings were unfair and unlawful, the Man and Body Foundation and CONTRALESA did not have standing before the Tribunal, and that the appeal had been brought out of time. Their argument on the merits was that the Tribunal’s classification of the film as X18 was not in line with section 18(3)(c) of the Film and Publications Act (Act). This provision empowers the Board or Tribunal to classify a film as X18 if “it contains explicit sexual conduct unless … the film … is a bona fide documentary or is of scientific, dramatic or artistic merit”. [para 55] The Tribunal argued that it had the power to issue the classification of X18 and that it adopted a purposive interpretation of the Act. The Man and Body Foundation and CONTRALESA argued that they were permitted to bring the appeal to the Tribunal, that there had been no violation of procedural fairness in the Tribunal’s proceedings, and that the decision fell within the bounds of section 18(3)(c) of the Act.
Raulinga J confirmed that the Court was only entitled to set aside the decision of the Tribunal if it found that there had been a violation of procedural fairness under the Promotion of Administrative Justice Act, 3 of 2000 (PAJA). [para. 31] As the case was a judicial review of the Tribunal’s decision it was “not concerned about the correctness of otherwise of the decision but with the manner in which the decision was taken”. [para. 32]
The Court first considered Indigenous Film Distribution’s argument that they had the “right to distribute and screen [the film] and the public [had] a corresponding right to see it”. [para. 33] Raulinga J noted that the Court had to proceed with “great caution” before interfering in decisions of specialized tribunals. Therefore, the Court had to limit its consideration to whether the rules had been broken. In doing so, Raulinga J undertook an analysis of the balance that should be struck between the right to freedom of expression and cultural rights. Raulinga J examined the cultural context of the film, and recognized that “[i]nitiation or circumcision is strongly believed to be sacred not only by the amaXhosa, but by the majority of African people in South Africa and elsewhere in other African countries”. [para. 38] He emphasized the taboo nature of sexual intercourse during initiation periods and the secrecy that surrounds the process (particularly the fact that initiation was not to be exposed to people under 18 years old). [para. 38 and 39]
Raulinga J quoted section 16 of the Constitution which protects the right to freedom of expression, and acknowledged the South African jurisprudence – specifically S v. Mamabolo – which recognizes the importance of that right. He referred to Indigenous Film Production’s argument that “the mere fact that some people may be shocked, offended or disturbed by the film is irrelevant to whether the film receives constitutional protection”. [para. 44]
However, Raulinga J made reference to the South African case of Phillips v. Director of Public Prosecutions (Witwatersrand) in which the Constitutional Court had held that the “Constitution expressly allows the limitation of expression that is ‘repulsing, degrading, offensive or unacceptable’ to the extent that the limitation is justifiable in an ‘open and democratic society based on human dignity, equality and freedom’.” [para. 45] He also referred to a passage in Mamabolo that had reiterated that the right to freedom of expression is not absolute and that the “right to human dignity is at least as worthy of protection as is the right to freedom of expression”. [para. 46]
In examining the content of the film, Raulinga J recognized that by depicting a sexual act and then treatment of an initiate “[t]wo cultural taboos are committed in one fell swoop”. [para. 50] He noted that “[w]hether the sexual conduct depicted in the film is ‘explicit’ or ‘implicit’ must of necessity be judged contextually and in relation to the fact that the arena for the conduct in question is a sacred space in which even to talk about sexual conduct is taboo and culturally forbidden”. [para. 50]
Raulinga J balanced the right to freedom of expression against cultural rights and noted that “[t]here is no doubt that in the context of this case, right to freedom of expression has an effect on the rights of the Xhosa traditional group”. [para. 52] He added that, with reference to the South African case of Mamabolo, “freedom of expression does not enjoy superior status in our law … It does not prevail over cultural rights”. [para. 52] He agreed that the application was to be considered against the uncontested rules, principles and underlying values and norms associated with the initiation from a traditional and medical point of view. He also reasoned that it could be assumed that “human dignity is universally ranked above all other rights, with exception to the right to life.” [para. 53]
He went on to find that it was not for the Court to make a pronouncement on the lawfulness of the Tribunal’s decision. However, Raulinga J recognized that the Tribunal adopted a “contextual and purposive laden interpretation” to find that some of the sexual content in the film fell within the category of “explicit sexual conduct”. Therefore, section 18(3)(c) of the Act had been complied with. In this context, he observed that “[i]f cultural beliefs and practices are to be considered, the film is harmful and disturbing and exposes 16 year olds to the sexual conduct depicted in the film … Therefore, in deciding to curtail … freedom of expression and artistic creativity the Tribunal took into account the competing rights of the affected communities more particularly their rights to human dignity, equality and cultural rights.” [para. 66]
On the procedural arguments, Raulinga J noted that Indigenous Film Distributions was only given two working days to prepare for the hearing of the appeal, and Urucu Media was not informed at all about the hearing. Moreover, he noted that the papers for the case were only given to the filmmakers the day before the hearing. He concluded that by not affording Indigenous Film Distributions and Urucu Media the proper opportunity to participate in the proceedings before the Tribunal, the Chariperson of the Tribunal “signalled exactly the opposite of respect for the dignity and worth” of the companies, and so constituted a violation of PAJA. [para. 79] In addition, Raulinga J held that the Man and Body Foundation and CONTRALESA did not have standing to appeal the Board’s initial classification to the Tribunal since this was only open to a closed category of persons. [para. 91] ccordingly, the Tribunal’s decision was set aside.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Although this decision ultimately had a positive outcome for free speech by setting aside a classification of a film that severely limited the extent to which it could be distributed, the decision has some problematic language that could be relied on in the future to limit the distribution of films that may potentially offend certain communities or traditions. For instance, the High Court stated that cultural beliefs and practices could be taken into account to determine whether content should be classified as “explicit sexual conduct”. Moreover, cultural rights were given heightened protection when compared to the right to freedom of expression. This meant that films could be classified as containing “explicit sexual conduct”, even in cases where those films are not pornographic in nature, merely because they depict sexual relations in cultural contexts where sex is usually forbidden or taboo. This decision sits in stark contrast to the consistent principle of international law that the right to freedom of expression embraces expression that may be regarded as “deeply offensive”.
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