A draft Bill proposing a ban on sexual content on the internet and cellphones submitted to the South African Department of Home Affairs in May 2010 claims to have the best interests of women and children in mind. The Bill was submitted to the Department, which oversees the Film and Publications Board, by a non-profit organisation called Justice Alliance of South Africa (JASA).

The draft Bill set alarm bells ringing in the women’s and LGBTI movements. Firstly, the Bill is drafted by an organisation known to be anti-choice and homophobic (JASA’s honorary director John Smyth is well known for his homophobic stance and has been involved in a number of legal attempts to reduce access to termination of pregnancy). Secondly, the Bill equates women with children, and takes a protectionist approach to the rights of women. And, even more alarming, is the notion of state control of information flows and censorship.

The Bill was developed by JASA and presented to the Department of Home Affairs coincidentally, soon after department made request to the Law Reform Commission in September 2009 to investigate pornography on the internet and cell phones. After being presented the Bill, Deputy Minister of Home Affairs, Malusi Gigaba was quoted as saying 'cars are already provided with brakes and seatbelts, it is not an extra that consumers have to pay for. There is no reason why the internet should be provided without the necessary restrictive mechanisms built into it.'

The South Africa Law Reform Commission’s Dellene Clark reports that “The SALRC received a letter from the Ministry of Home Affairs for advice on the possible banning of the dissemination and circulation of pornography in the mass media. This request served at the last Commission meeting and it was decided that a pre-investigation be done to see whether this issue should be included on the program of the Commission. A pre-investigation is currently underway.”

Neither the Deputy Minister, Mr Gigaba, nor the Bill proposed by JASA, has details as to exactly how the total ban could be effected in a country where the internet and cell phone content is not controlled by the state, and where freedoms of expression and access to information are considered central to human rights. Internet service providers, according to the Bill, will be tasked with filtering content – preventing it from being viewed from inside South Africa. The Bill uses the definition of pornography provided for in the Criminal Law (Sexual Offences) Amendment Act of 2007 which criminalises child pornography.

The Freedom of Expression Institute (FXI) previously lodged its disappointment at the passing of an Amendment to the Film and Publications Act in 2009, that took some strong steps to address child pornography and hate speech. The FXI argued that the Amendment Act could be used to limit individual freedoms and force journalists to reveal their sources: “FXI cannot condone this insidious erosion of private liberties under the banner of the protection of interests whether they be, the interests of children, religious interests or political affiliation. Any intrusion of individual rights must be measured very carefully against the guarantees embedded in the Constitution, which guarantees the Constitutional Court has already ruled should be jealously guarded.” The FXI has asked the SALRC to investigate laws relating to the protection of confidential journalistic sources and information.

What’s the issue?

On the surface of things, women and women’s organisations should be pleased at the fact that pornographic content that is implicated in, at the very least, promoting sexism and the objectification of women’s bodies, be less available to those who might use it to feed their problematic views of women. Some feminists see links between violence against women and pornography as tenuous while others make convincing arguments that see porn as making a significant contribution to violence and inequality.

Most feminists however are cautious when it comes to censorship, knowing from experience that these tools are used to police women’s sexuality and limit our access to information about our rights. In South Africa, the Bill under discussion has been proposed by an entity with views most feminists would strongly oppose. Would JASA promote access to information about lesbian sexuality or abortion? LGBTI organisations think not, and are alarmed by the proposed Bill.

With growing concern about anti-homosexuality laws in Africa and the threats to constitutional protections for LGBTI people in South Africa, these fears are not unfounded. In May this year, a Zimbabwean rights-based organisation Gays and Lesbians of Zimbabwe, was raided by police, its staff arrested and accused of dealing in drugs and pornography. The Police used Zimbabwe’s Censorship and Entertainment Control Act to justify their confiscation of computer equipment and materials as well as the arrests.

Taking into consideration the social context within which laws operate in South Africa, where violence against lesbian women and people who transgress gender binaries is a shocking reality, a law focussing on sexual content is likely to see content that focuses on lesbian sexuality or even women’s sexuality as deviant and undesirable. The countries mentioned by JASA as having enacted similar legislation to the proposal Bill – Yemen and the United Arab Emirates – both censor LGBT and political content that they deem undesirable.

Filtering technology is not a delicate art, it’s a blunt instrument. Early this year I stayed in a hotel where the internet firewall prevented me from accessing a website on treatment guidelines for HIV positive women. The word ‘sex’ was caught by the hotel’s firewall and it blocked me from viewing the content –preventing me from joining my colleagues in collectively discussing important issues for women.

Will censorship work to address problematic representations of women?

If it is true that the internet is both a measure of women’s equality and part of social discourse, will censorship change the measure and the discourse or will it, consistent with its current nature, merely silence women and limit our access to information? Will censorship change the nature of the beast or will the beast stay the same, but with an additional tool for limiting the freedoms of women and promoting a view of women constant with its own well established norms?

In Women's human rights: Violence against women, pornography and ICTs, Jac sm Kee states that “ICTs are intrinsically about power relations, and the construction or subversion of these relations” if this is true, then censorship imposed on the internet will not change the nature of it, but will reflect the interests of the powerful.

So, censorship will, more than likely, be used to entrench content in support of patriarchy and stereotypical views of women, while content that challenges these notions will be seen as radical and deviant and therefore subject to sanction. This is in evidence in Yemen and the United Arab Emirates where censorship is used to limit personal freedoms and access to content that the powerful see as a threat.

So, what should be done about content on the internet and cell phones that is degrading and misrepresents women?

We flood the internet with content that represents our diversity, that gives women in countries where their rights are limited, access to information and spaces for ‘radical’ thought. We use the internet to amplify our voices and we campaign for more access, more open content and more appropriate tools for activism. We skill ourselves and others, and we teach girls to be assertive online.

The Law Reform Commission in South Africa, tasked with investigating internet pornography should consider steps to free up access and get funds from the Universal Access Fund diverted to organisations and institutions that promote positive content by women and for women, as well as steps to address the gap in access and use of the internet by women and girls. This approach recognises that content is linked to use, is linked to tipping the balance of content in favour of more positive representations of women and more diversity.

The Law Reform Commission’s investigation at the very least, must be framed by considering that children and women are not the same entity, and that children are a separate category of people that require very different approaches than those addressing women.

The Sexual Offences Act l in Chapter 1 (d) : ‘‘pornography’’ means any image, however created, or any description of a person, real or simulated, who is 18 years or older, of an explicit or sexual nature that is intended to stimulate erotic feelings, including any such image or description of such person —

(a) engaged in an act that constitutes a sexual offence;

(b) engaged in an act of sexual penetration;

(c) engaged in an act of sexual violation;

(d) engaged in an act of self-masturbation;

(e) displaying the genital organs of such person in a state of arousal or stimulation;

(f) unduly displaying the genital organs or anus of such person;

(g) displaying any form of stimulation of a sexual nature of the female breasts;

(h) engaged in sexually suggestive or lewd acts;

(i) engaged in or as the subject of sadistic or masochistic acts of a sexual nature;

(j) engaged in any conduct or activity characteristically associated with sexual intercourse; or

(k) showing or describing the body, or parts of the body, of that person in a manner or in circumstances which, within the context, violate or offend the sexual integrity or dignity of that person or any other person or is capable of being used for the purposes of violating or offending the sexual integrity or dignity of that person or any other person;

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