South Africa May Block Online Porn

“The Commission provisionally recommends that legislation should comprehensively criminalise all acts of exposing children to pornography and content not suitable for children, in whatever manner."

Porn neon sign
Porn neon sign. igorstevanovic / Shutterstock.com

The South African Law Reform Commission has approved the publication of its discussion paper on sexual offences (pornography and children) for comment.

As part of its provisional recommendations, the Commission paper proposes the blocking of online porn by ensuring that all devices (new and second hand) be issued or returned to a default setting that blocks inappropriate content, with an opt-in possibility depending on proof of age of the buyer/user as being 18 and older.

“Giving effect to this recommendation will serve to protect both the child and the provider, though regulations will be required to provide for effective implementation,” the discussion paper reads.

Vodacom and MTN networks both have parental protection facilities available, and blocking of handsets for ‘child pornography‘ and ‘adult content‘ can be effected after purchase and are not default settings.

This again provides for protection in the formal sense but to amount to substantive protection the requirement would be for the default setting to be a block against harmful content and for it to be lifted on the production of proof of age.

The Commission is an independent advisory statutory body established by the South African Law Reform Commission Act.

This discussion paper aims to identify gaps in the manner in which the law currently regulates and protects children from being exposed to pornography or from being used to create child sexual abuse material.

Its purpose is to serve as a basis for in-depth deliberation on the law reform needed to protect children and to test public opinion on the solutions identified by the Commission

The Commission provisionally recommends that the Department of Education partners with relevant stakeholders draft guidelines on the use and risks involved in using the Internet and that these guidelines be included in the national education curriculum.

Shocked man searching online for porn at the computer.
Shocked man searching online for porn at the computer. DavideAngelini / Shutterstock.com

“A specific section should be dedicated to the child‘s rights and responsibilities in respect of the child‘s and other children‘s sexuality and the consequences of creating, possessing and distributing explicit self-images.”

The Commission warns in the discussion paper that opportunities offered by the mass media to access a varied and vast amount of information, educational material and entertainment and to actively engage in remote communication using electronic tools do not come without risks.

“One of the risks that children face when engaging with the mass media and using electronic tools in South Africa is that they may intentionally seek or unintentionally be exposed to pornography or child pornography (described as child sexual abuse material in this discussion paper). This material may be illegal or may only be legal for adults.”

As part of the overarching investigation into the review of all sexual offences, this discussion paper seeks to review the legislative framework that currently applies to children in respect of pornography and child sexual abuse material within the larger framework of all statutory and common law sexual offences.

The secondary aim is to consider the need for law reform in relation to the legislative framework governing children and pornography and where necessary to make preliminary recommendations in this regard.

“The Commission provisionally recommends that legislation should comprehensively criminalise all acts of exposing children to pornography and content not suitable for children, in whatever manner, including through advertisement and enticement or by making use of misleading techniques,” it explains.

Some respondents submit that the law needs to be amended to put better controls in place in order to protect children from exposure to pornography on the internet.

Some respondents suggest that the solution to protecting children from exposure would be to make the default position that all pornography is unavailable on the internet. To access it adults would have to pay an extra fee or specifically subscribe to it.

The Commission invites comment on the discussion paper and the draft Bill which accompanies it. The comment may also be made on related issues of concern which have not been raised in the discussion paper.

The closing date for comment is 30 July 2019.

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