About the BCCSA:
The BCCSA as an Independent Judicial Tribunal
The Broadcasting Complaints Commission of South Africa (“BCCSA”) was established by the National Association of Broadcasters (“NAB”) in 1993. According to the BCCSA’s Constitution it is a body corporate, capable of suing and being sued in its corporate name, and of performing all such acts as are necessary for or incidental to the carrying out of its objects, and for the performance of its functions and duties under its Constitution.
The BCCSA shall be based in Johannesburg but the Chairperson may, when he or she deems it appropriate, decide to hold a session of the Tribunal of the Commission at any place in South Africa. The BCCSA was recognized by the Independent Broadcasting Authority (“IBA”, now ICASA) in 1995 in terms of section 56(2) of the IBA Act 1993. During these hearings before the IBA, the IBA emphasized that the BCCSA must be an independent judicial tribunal so that it could, without fear or favour, adjudicate complaints from the public against the broadcasters, which are members of the NAB.
The BCCSA has no jurisdiction as to election complaints. Such jurisdiction resides with the Complaints and Compliance Committee (“CCC”) of the ICASA, The CCC also has jurisdiction to hear complaints about content against broadcasters which are not members of the NAB. Complaints other than those which relate to content of broadcasts, all fall under the jurisdiction of the CCC.
Although the NAB provides the funds for the BCCSA, the BCCSA is, as a body corporate, entirely independent from the NAB. The BCCSA has an enforceable ongoing contract with the NAB, according to the BCCSA Constitution, to provide the BCCSA with its reasonable expenses. If the NAB does not provide the reasonable expenses, which would include all complaint sessions of the BCCSA, the BCCSA may take the matter to an independent arbitrator who will enforce the contract. If it is found that the NAB is or has omitted to provide such reasonable expenses, it is bound in law to do so.
Other features of the Constitution which uphold the BCCSA’s character as an independent judicial tribunal in terms of section 34 of the Constitution of the Republic, are the following:
1. The Commissioners are appointed by an independent panel chaired by an independent person (up to now by a retired Judge of Appeal) plus other persons appointed at an AGM of the BCCSA. Although it was, initially, the thinking that half of the Commissioners would be appointed from persons nominated by the NAB, the Constitution was amended at the insistence of the IBA so that all candidates would be nominated by members of the public.
2. The Chair is elected at an AGM without any intervention from the appointment panel or the NAB and may be a person from outside the Commission. So as to ensure the independence of the Chair he or she is in no way answerable to the Commission in so far as the judicial work is concerned. He or she appoints each Tribunal from the Commissioners and has, in any case, the right to appoint ad hoc Commissioners where Commissioners are not available or where it is in the interests of representivity.
3. The BCCSA is not, in any manner, accountable or answerable to the NAB.
4. Only the BCCSA may, at an AGM or SGM, amend its Constitution and it does so independently from the NAB.
5. Only the BCCSA may dissolve the BCCSA and the NAB has no right to do so or withdraw its funding of reasonable expenses.
6. The BCCSA appoints its own Registrar. The Chair appoints other staff members, including the accountant. The Chair is also in the sole control of the Office of the BCCSA.
7. All salaries or fees are paid by the BCCSA, which has its own bank account and appoints its auditor annually.
8. The BCCSA may impose sanctions, which include fines. It has an internal appeal procedure.
In sum, the BCCSA is an independent judicial tribunal which must reach its decisions on the Broadcasting Code independently and in line with the precepts of administrative justice, as required by the Constitution of the Republic and legislation that governs fair administrative justice. Although initially set up by the Broadcasting industry, it is entirely independent from that industry and it would be in conflict with its corporate independence to be called an “industry body”.
Its code of conduct:
BCCSA FREE-TO-AIR CODE OF CONDUCT FOR BROADCASTING SERVICE LICENSEES
In this Code, unless the context indicates otherwise, a word or expression to which a meaning has been assigned in the Act has the meaning so assigned.
“Act” means the Electronic Communications Act, Act no 36 of 2005;
“audience” refers to both the viewers and listeners of television and sound Broadcasting service licensees
“broadcasting service licensee” means a free-to-air South African broadcasting service licensee as defined in section 1 of the Act and which: has agreed to the jurisdiction of the Broadcasting Complaints Commission of South Africa (BCCSA) as constituted in 1993 by the National Association of Broadcasters and which was formally approved by the Independent Broadcasting Authority of South Africa (ICASA) in 1995; and has thereby also agreed to the Constitution, Free-to-air Broadcasting Code and Procedural Rules of the BCCSA;
“child pornography” means any description or visual image, real or simulated, however created, explicitly depicting a person who is or who is depicted as being under the age of 18 years (a) engaged in or participating in sexual conduct; (b) engaged in an explicit display of genitals; or (c) assisting another person to engage in sexual conduct which, judged within context, has as its predominant objective purpose, the stimulation of sexual arousal in its target audience;
“child” means a person under the age of 18 years;
“ICASA Act” means the Independent Communications Authority of South Africa Act 13 of 2000;
“sexual conduct” means: (i) the display of genitals or of the anus; (ii) masturbation; (iii) sexual intercourse including anal sexual intercourse, (iv) in the case of child pornography, the fondling or touching of breasts, genitalia or the anus; (v) the penetration of a vagina or anus with any object; (vi) oral genital contact; or (vii) oral anal contact;
“watershed period” means the period between 21h00 and 05h00 for free-to-air television Broadcasting service licensees and 20h00 and 05h00 for subscription television Broadcasting service licensees.
- 2. Scope of Application
(1) Broadcasting service licensees must ensure that all broadcasts comply with this Code.
(2) Broadcasting service licensees must ensure that relevant employees and programme producers, including those from whom they commission programmes, understand the contents and significance of this Code.
(3) All broadcasting service licensees should also have procedures for ensuring that programme producers can seek guidance as to the application of the Code from them.
- 3. Violence
Broadcasting service licensees must not broadcast material which, judged within context
(a) contains violence which does not play an integral role in developing the plot, character or theme of the material as a whole; or
(b) sanctions, promotes or glamorises violence or unlawful conduct.
- 4. (1) Broadcasting service licensees must not broadcast material which, judged within context, sanctions, promotes or glamorises violence or unlawful conduct based on race, national or ethnic origin, colour, religion, gender, sexual orientation, age, or mental or physical disability.
(2) Broadcasting service licensees must not broadcast material which, judged within context, amounts to (a) propaganda for war; (b) incitement of imminent violence or (c) the advocacy of hatred that is based on race, ethnicity, religion or gender and that constitutes incitement to cause harm.
- 5. Exclusions
Clauses 3 and 4 do not apply to:
(1) a broadcast which, judged within context, amounts to a bona fide scientific, documentary, dramatic, artistic or religious broadcast;
(2) a broadcast which amounts to a discussion, argument or opinion on a matter pertaining to religion, belief or conscience; or
(3) a broadcast which amounts to a bona fide discussion, argument or opinion on a matter of public interest.
- 6. Children
(1) Broadcasting service licensees must not broadcast material which is harmful or disturbing to children at times when a large number of children are likely to be part of the audience.
(2) Broadcasting service licensees must exercise particular caution, as provided below, in the depiction of violence in children’s programming.
(3) In children’s programming portrayed by real-life characters, violence may, whether physical, verbal or emotional, only be portrayed when it is essential to the development of a character and plot.
(4) Animated programming for children, while accepted as a stylised form of story-telling which may contain non-realistic violence, must not have violence as its central theme, and must not incite dangerous imitation.
(5) Programming for children must with reasonable care deal with themes that could threaten their sense of security when portraying, for example, domestic conflict, death, crime or the use of drugs or alcohol.
(6) Programming for children must with reasonable care deal with themes which could influence children to imitate acts which they see on screen or hear about, such as the use of plastic bags as toys, the use of matches or the use of dangerous household object as toys.
(7) Programming for children must not contain realistic scenes of violence which create the impression that violence is the preferred or only method to resolve conflict between individuals.
(8) Programming for children must not contain realistic scenes of violence which minimise or gloss over the effect of violent acts. Any realistic depictions of violence must portray, in human terms, the consequences of that violence to its victims and its perpetrators.
(9) Programming for children must not contain frightening or otherwise excessive special effects not required by the story line.
(10) Offensive language, including profanity and other religiously insensitive material, must not be broadcast in programmes specially designed for children.
(11) No excessively or grossly offensive language should be used before the watershed period on television or at times when a large number of children is likely to be part of the audience on television or radio.
- 7. Watershed Period
(1) Programming on television which contains scenes of explicit violence and/or sexual conduct and/or nudity and/or grossly offensive language intended for adult audiences must not be broadcast before the watershed period.
(2) Promotional material and music videos which contain scenes of explicit violence and/or explicit threatening violence and/or sexual conduct and/or the fondling or touching of breasts and/or genitalia or the anus and/or nudity and/or offensive language intended for adult audiences must not be broadcast before the watershed period.
(3) Some programmes broadcast outside the watershed period may not be suitable for very young children. Licensees must provide sufficient information, in terms of regular scheduling patterns or audience advisories, to assist parents and de facto or legal guardians to make appropriate viewing choices.
(4) Television broadcasting service licensees may, with the advance of the watershed period, progressively broadcast more adult material.
(5) Broadcasting service licensees must be particularly sensitive to the likelihood that programmes which commence during the watershed period and which run beyond it may then be viewed by children.
- 8. Sexual Conduct
(1) Broadcasting service licensees must not broadcast material which, judged within context, contains a scene or scenes, simulated or real, of any of the following:
(a) child pornography;
(c) sexual conduct which degrades a person in the sense that it advocates a particular form of hatred based on gender and which constitutes incitement to cause harm;
(d) explicit sexual conduct;
(e) explicit extreme violence or the explicit effects thereof; or
(f) explicit infliction of domestic violence.
(2) Sub-clause 8(1) shall not be applicable to bona fide scientific, documentary, dramatic or artistic material which, judged within context, is of such a nature; provided that it is broadcast with due audience advisory after the watershed on a sliding scale according to its content.
- 9. Audience Advisories
(1) To assist audience in choosing programmes, television broadcasting service licensees must provide advisory assistance which, when applicable, must include guidelines as to age, where such broadcasts contain violence, sex, nudity an/or offensive language. The advisory must be visible on the screen for a minimum of 90 seconds at the commencement of the programme and for a minimum of 30 seconds after each advertisement or other break. Where the frequency of the said subject matters, or any one or some of them, is high, a continuous advisory will be necessary, whether it is broadcast before or after the watershed.
(2) The following visual advisory age system must be used: 10, 13, 16 and 18. The following symbols must be used in accordance with the relevant content: V(violence), L(language), N(nudity), S(sex), PG(Parental Guidance).
(3) An audio advisory before the commencement of the programme must also accompany the broadcast of a film with an age restriction of 18.
- 10. Classification by Films and Publications Board
(1) Where a Films and Publications Board classification for a film exists in terms of the Films and Publication Act No. 65 of 1996, such classification may be used as a guideline for an advisory to the broadcast of the film.
(2) No film which carries an XX classification in terms of the Films and Publications Act may be broadcast.
- 11. News
(1) Broadcasting service Licensees must report news truthfully, accurately and fairly.
(2) News must be presented in the correct context and in a fair manner, without intentional or negligent departure from the facts, whether by:
(a) Distortion, exaggeration or misrepresentation.
(b) Material omissions; or
(3) Only that which may reasonably be true, having reasonable regard to the source of the news, may be presented as fact, and such fact must be broadcast fairly with reasonable regard to context and importance.
(4) Where a report is not based on fact or is founded on opinion, supposition, rumours or allegations, it must be presented in such manner as to indicate, clearly that such is the case.
(5) Where there is reason to doubt the correctness of the report and it is practicable to verify the correctness thereof, it must be verified. Where such verification is not practicable, that fact must be mentioned in the report.
(6) Where it subsequently appears that a broadcast was incorrect in a material aspect, it must be rectified forthwith, without reservation or delay. The rectification must be presented with such a degree of prominence and timing as in the circumstances may be adequate and fair so as to readily attract attention.
(7) The identity of rape victims and other victims of sexual violence must not be divulged in any broadcast, whether as part of news or not, without the prior valid consent of the victim concerned.
(8) Broadcasting service licensees must advise viewers in advance of scenes or reporting of extraordinary violence, or graphic reporting on delicate subject-matter such as sexual assault or court action related to sexual crimes, particularly during afternoon or early evening newscasts and updates.
(9) Broadcasting service licensees must not include explicit or graphic language related to news of destruction, accidents or sexual violence which could disturb children or sensitive audiences, except where it is in the public interest to include such material.
- 12. Comment
(1) Broadcasting service licensees are entitled to broadcast comment on and criticism of any actions or events of public importance.
(2) Comment must be an honest expression of opinion and must be presented in such manner that it appears clearly to be comment, and must be made on facts truly stated or fairly indicated and referred to.
(3) Where a person has stated that he or she is not available for comment or such a person could not reasonably be reached, it must be stated in the programme.
- 13. Controversial Issues of Public Importance
(1) In presenting a programme in which a controversial issue of public importance is discussed, a broadcaster must make reasonable efforts to fairly present opposing points of view either in the same programme or in a subsequent programme forming part of the same series of programmes presented within reasonable period of time of the original broadcast and within substantially the same time slot.
(2) A person whose views are to be criticised in a broadcasting programme on a controversial issue of public importance must be given the right to reply to such criticism on the same programme. If this is impracticable, reasonable opportunity to respond to the programme should be provide where appropriate, for examples in a right to reply programme or in a pre-arranged discussion programme with the prior consent of the person concerned.
- 14. Elections
During any election period, as defined in the Act, sections 56, 57, 58 and 59 of the Act and regulations issued in terms thereof apply. The BCCSA does not have jurisdiction in these matters and complaints must be directed to the Complaints and Compliance Committee of the Independent Communications Authority of South Africa.
- 15. Privacy, Dignity and Reputation
(1) Broadcasting service licensees must exercise exceptional care and consideration in matters involving the privacy, dignity and reputation of individuals, bearing in mind that the said rights may be overridden by a legitimate public interest.
(2) In the protection of privacy, dignity and reputation special weight must be afforded to South African cultural customs concerning the privacy and dignity of people who are bereaved and their respect for those who have passed away.
(3) In the protection of privacy, dignity and reputation special weight must be afforded to the privacy, dignity and reputation of children, the aged and the physically and mentally disabled.
- 16. Competitions and Audience Participation
(1) Where audiences are invited on air to react to a programme or competition broadcasting service licensees must make known the full cost of a telephone call or a SMS.
(2) Broadcasting service licensees must specify the proportion of the cost of the call or SMS, as the case may be, which is intended for any specified charitable cause.
(3) Broadcasting service licensees must ensure that audiences who are invited to compete in any competition are made aware on air of the rules of the competition. Such rules must include the closing date and the manner in which the winner is to be determined.