Pornography and Freedom of Speech
By: ROBIN TYSONCURRENTLY a debate is raging, both in Namibia and South Africa, regarding the plans of DStv to implement a channel showing pornographic movies. Indeed, reports had it that the debate within DStv itself was not so much whether to show porn or not, but the precise nature of the material (so-called ‘soft’ or ‘hard’ porn content) and the times it could most safely be broadcast.
Reaction has been predominantly negative, with, amongst others, the Namibian Minister of Gender Equality and Child Welfare expressing concern that such content might lead to a rise in gender-based violence as well as an escalation of drug abuse and HIV-AIDS.
In South Africa the Minster of Women, Children and People with Disabilities weighed in on the discussion and expressed similar concern about the ‘rights of women and children’. Others have referred to the ‘degradation’ of young people and the possible ‘corruption’ of minds.
But the issue of pornography is vital in our understanding of one of the fundamental tenants of the Namibian Constitution, namely freedom of speech. The article in question [21(1a)] clearly refers to ‘freedom of speech and expression’. Other constitutions such as Zambia elaborate further, noting that this includes “freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to impart and communicate ideas and information without interference.” [Article 20]
It is thus implied that when we talk of freedom of speech we talk not only of the ability to say what we want, but, as adults, also to listen, read or view what we want, without interference or censorship. Obviously, our Constitution contains limitations on this freedom, and section two of the same article notes that these freedoms must be subject to the law, providing that the law imposes ‘reasonable restrictions’ in the interests of, amongst others, national security, public order, decency or morality.
What is interesting is that the Namibian High Court expressed itself on exactly this point in a landmark case, from 1998, when a certain ‘Hustler’ sex shop was raided by police and the contents of the shop (pornographic magazines, adult toys and novelties) confiscated under the ‘Combating of Immoral Practices Act’ (1980) and ‘Indecent and Obscene Photographic Matter Act’ (1967). The police felt that the objects being sold in the shop were, according to these acts, unlawful.
However, the eventual ruling of the court was that these acts, although still on the Namibian statute books, were in fact unconstitutional and too broad in their definition of what was ‘obscene’ material. The court also made it clear that freedom of expression was more than simply the ability to air political views openly, but included ‘non-political discourse’, including works of art or photographs. It also stressed that the real test of freedom of expression was not so much the inoffensive material but offensive or shocking material. The end result was the return of the items, and the continued operations of the shop, which still exists in Windhoek today.
The conclusion we must draw is that the Namibian Constitution is very much on the side of freedom of expression and courts in the country will be unwilling to allow any laws to be made which restrict such freedom of expression.
Of course, the current issue of DStv goes further, because, unlike a shop, where access can be strictly controlled, television is ubiquitous and reaches nearly every living room in the country. However, the technology of the decoder does allow ‘parental guidance’, meaning that passwords etc can be used in order to control access to certain channels. Indeed, the South African Minister expressed her concern that it was such controlled access that needed to be guaranteed if such adult channels were to be introduced.
But it also exposes another general misconception regarding the media. A common belief is that, because of their power and reach, the media have an almost spellbinding influence on their audience. Politicians are quick to blame the media for anything which irks them, and, as can be seen in the above reactions, even Ministers are under the illusion that there is a strong and binding link between what the media portray and what happens in society.
Thus, a positivist explanation of any social phenomenon will simply look at, say, the number of violent acts on television, then observe, for example, the rise of violence in society, and draw a parallel between the two. Television will thus be blamed for the increase in violence.
Unfortunately, although this seems a scientific and observable explanation, the reality is somewhat more complex. The rise in violence might have happened with or without the portrayal of violence on television. The rise in violence could be attributed to other factors such as poverty or drug abuse. The rise in violence could be linked to a rise in alcohol consumption, etc, etc. Indeed, some television producers would maintain that the portrayal of violence on television is because of the increased violence in society – to be successful television must reflect the realities of is viewers.
The simplistic ‘hypodermic syringe’ theory of media – that we are ‘injected’ with information and, like robots, immediately act on that information, cannot be seen as valid in today’s complex society. If it were, the showing of a political advertisement on television would result in every viewer voting for that party!
Indeed, another media theory regarding pornography in particular (the so-called ‘catharsis effect’) states that the viewing of pornography can actually decrease the sexual urges of viewers. In other words, an individual might build up a high degree of sexual frustration and stress, and viewing pornographic material could relieve that frustration and defuse potentially aggressive behaviour in individuals.
The issue of pornography on DStv raises another key question, namely the influence of media ownership on media content. As the article in The Namibian (9 March 2010) pointed out, the ruling party, through Kalahari Holdings, maintains a controlling interest in MultiChoice Namibia (their offices, indeed, are situated in the MultiChoice building). So it will be interesting to see if the Minister, through her party connections, is able to exert any influence on the commercial monolith that is DStv. It is, after all, a commercial enterprise, and if they can make money for themselves (and, of course for the ruling party) by persuading viewers to part with money each month for a pornographic channel, that windfall might override the concerns regarding ‘morality’ or ‘degradation’.
Finally, the issue again underlines the increasingly tenuous need for a ‘Ministry’ of Information (a phrase with ominously authoritarian-Orwellian overtones). Indeed, in the age of the satellite, the power of individual nation-states to decide on media content has long gone. Short of shooting down the satellite (and thus infringing the rights of all other countries covered by its signal) there is little that a country can do to prevent such material being transmitted over their skies. And, as in this case, when decoders are used (meaning that the viewer has paid to receive such content) is it even more difficult to implement heavy-handed censorship of what viewer can and can’t see on a country by country level.
So much as we may disagree with pornography and much as we may express concerns about the effect on society it might have, it nevertheless remains a key issue on the cutting edge of testing whether, as a nation, we understand what the Constitution means when it uses those key terms ‘freedom of speech and expression.’
* Robin Tyson is a lecturer in Media Studies at the University of Namibia.