Media Monitoring Africa (MMA) strongly condemns the decision of many media outlets to reproduce images of child pornography in the process of exposing the perpetrator and a failing justice system. SABC 3’s Special Assignment (06/01/09, 21:30), The Times (08/01/09, p. 3), and The Citizen(08/01/09, p. 3) all included images of child pornography in their reports on a social grants officer with high political affiliations sexually abusing minors.
Initially revealed by Special Assignment, the reports expose the abusive actions of the social grants officer, and the slow response of both the justice system and his superiors to his alleged abuse.
MMA fully supports and commends Special Assignment for breaking the story and clearly pushing for action to be taken. It is also media’s role to follow up on the story and further report on the case, which both The Citizen and The Times did. MMA unreservedly supports the media’s right to expose abuse and report these cases.
However, it must also be noted that the media have an obligation to report such cases in a fair and ethical manner, and to have due consideration for the law and the Constitutional principle of acting in the best interests of the child.
DISTRIBUTION OF CHILD PORNOGRAPHY AND THE LAW
In addition to the alleged sexual abuse itself, the alleged abuser also filmed his activities. It is clips from these films that Special Assignment aired, and images from these clips that the newspapers printed. MMA believes that in doing so, the media concerned not only acted unethically but are also guilty of several criminal offences.
According to the Criminal Law (Sexual Offences and Related Matters) Amendment Act (No. 32 of 2007, Chapter 1, S. 1), 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…”.
This is closely repeated in the Film and Publications Act 65 of 1996 (as amended), which states “‘child pornography’ includes any image, however created, or any description of a person, real or simulated, who is, or who is depicted or described as being, under the age of 18 years-
(i) engaged in sexual conduct;
(ii) participating in, or assisting another person to participate in, sexual conduct; or
(iii) 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; [Definition of ‘child pornography’ inserted by S. 1 (a) of Act 34 of 1999 and substituted by S. 1 (a) of Act 18 of 2004.]”
In light of the clear definitions of child pornography as set out in the Sexual Offences Act and Films and Publications Act (as amended), the imagery provided by the media cannot be described as bona fide documentation of child sexual abuse. It is not open to the media to attempt to rely on a defense of “truth for the public benefit” in distributing these images. The clips and their images of a child engaging in sexual acts as released and distributed by the media in question amount to child pornography.
In addition to it being an offence to create child pornography (Criminal Law Amendment Act, No. 32 of 2007, Chapter 3, Part 2, S. 20, and the Film and Publications Act, S. 27), it is also an offence to either possess or distribute such images (Film and Publications Act, S. 27) and to expose a third party (over the age of 18) to child pornography (Criminal Law Amendment Act 32 of 2007, Chapter 2, Part 3, S. 10).
Under the current Film and Publications Act, newspapers who are members of the Newspaper Press Union are exempt from the provisions in the Film and Publications Amendment Act. However, newspapers are not exempt from the Criminal Law Amendment Act (No. 32 of 2007) which states that it is an offence to cause exposure of any pornography (child or otherwise) to children (Chapter 3, Part 2, S. 19) and it is an offence to cause exposure of child pornography to adults (Chapter 2, Part 3, S. 10) whether they consent to view the child pornography or not.
The Films and Publications Act provides exemptions to offences around possession and distribution of prohibited images (XX Classified Films and Publications, according to Schedules 1 & 6) for bona fide scientific and documentary publications and films. Broadcasters may argue that they are also exempt from laws governing possession and distribution of child pornography.
However, Schedules 5 and 9 of the Act specifically exclude child pornography from these exemptions, and therefore their possession and distribution remain illegal. These broadcasters are in any event guilty of various offences under the Sexual Offences Amendment Act as set out above.
In summary and in accordance with the Films and Publications Act read with the Sexual Offences Act, the possession and distribution of clips and images containing pornographic images of children by broadcasters is a criminal offence and any person (natural or otherwise) if found guilty is liable to a fine and/or a jail sentence (if a natural person).
Thus, it would appear that the SABC has broken the law by not only possessing copies of the film produced by alleged abuser, but also in airing segments of that film. In addition, the newspapers in question would appear to have broken the law in enabling children to be exposed to pornographic images through their being made freely available to any person of any age.
DISTRIBUTION OF CHILD PORNOGRAPHY AND THE ETHICS
Irrespective of the legal considerations, ethically it is difficult to understand why any media would air or print images of pornography containing children. Child pornography is child sexual abuse in and of itself according to the above definitions and law. To air or print such images provides a platform for their distribution to the public and perpetuates the sexual abuse of the children concerned. Even beyond the stipulations of law establishing distribution and possession as an offence, ethically it cannot be justified.
While media may argue that providing such images is a way to draw public attention to the story and the abuse, and to create a sense of horror and thereby a push for justice, this argument seems difficult to maintain in the face of perpetuating child abuse. This is also a weak argument, when the fact remains that it is child pornography, and the child-victim AND her family will know that it is her, know that the images have been publicly shared, and be explicitly reminded of the abuse.
THE BEST INTERESTS OF THE CHILD
Children are one of the most vulnerable groups in society, and are afforded special protections and consideration. In the case of children who have been abused, even greater sensitivity should be shown to survivors of sexual abuse and the trauma they have suffered.
According to South African law, international conventions, and standard ethical practice in reporting on children, children’s best interests should be paramount in decisions regarding them1.
While the adolescent girl who is in the images used is now 16 years of age, she is still considered a child by South African law, and therefore remains deserving of the special protections and consideration demanded by law and ethical practice2.
Distributing imagery that reveals a child survivor’s abuse for public consumption can in no way be regarded as taking these standards into consideration and being in the best interests of the child.
INDIRECT IDENTIFICATION OF A CHILD WITNESS
MMA is also disappointed with SABC 3 in enabling indirect identification of one of the allegedly abused children through the identification of the girl’s school, grandfather and aunt, who were named and interviewed. Given that the child is now a potential witness in criminal proceedings, this contravenes the law and is a criminal offence. According to law, no child witness to a criminal proceeding can be identified by media, directly or indirectly (Section 154 (3) of the Criminal Procedure Act, No. 51 of 1977). Enabling the adolescent girl to be identified also does little to protect her dignity given the nature of the alleged crime and the imagery released. This then is also in conflict with standard ethical practice in reporting on children, as the best interests of the child cannot be seen to have been upheld.
That Special Assignment, The Times and The Citizen released these images is of deep concern to MMA, as it displays both an appalling lack of sensitivity to the survivor, and a lack of understanding around child abuse and the law.
MMA asks that all media involved in releasing these images extend an apology to the young survivor. MMA also hopes that media commits to improving their approach to reporting on child sexual abuse, and not reproducing such images again. The images are evidence of a crime being committed, but should be held for analysis in a court of law, not by the general public.
Media have been vehemently opposed to the proposed changes articulated in the current Film and Publication Amendment Bill (No. B27D of 2006) which could further limit media freedom. The release of these images undermines media’s argument that it is capable of independently monitoring its own actions and making responsible decisions without government interference. In this situation, it is imperative that media show they are capable of discerning when they may potentially act unethically and outside the law and take action to mitigate this possibility. Media must also show they are capable of speedily identifying when they have acted unethically and outside the law, work quickly to address and resolve this failing, and ensure that it does not happen again. MMA, as a defender of media freedom and self regulation, hopes that media respond and act appropriately in response to this issue.
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Footnotes:
1 See the South African Constitution, Chapter 2: Bill of Rights, S.28.2; The Children’s Act 2005, Chapter 2, S.7&9; UN Convention on the Rights of the Child; MMP & UNICEF, (2003) “All Sides of the Story, reporting on Children: A Journalist’s Handbook”, pp. 14-15, p.43). The laws and guidelines encompass what to report and how to report on children.
2 The South African Constitution states that individuals under the age of 18 are considered children (Chapter 2, Bill of Rights, S.28.3.)