On the 1st of April, as from 23:30, e-tv broadcast The Story of “O”, produced and directed by Just The Constitutional Court has held that freedom of expression includes the right to also express that which offends. Only when it is reasonable to do so in terms of section 36 of the Constitution, the offensive uttering may be prohibited. The Films and Publications Act 1996 and the Broadcasting Code 2003 both exempt bona fide drama. When applying the Constitutional Court’s approach to freedom of expression as permitting the offensive within reasonable bounds, this Tribunal must accept that once it is concluded that the material before it amounts to bona fide drama, even if it conveys an offensive theme, the Code has not been contravened. Of course, art and drama is so much easier to accept when it deals with what is generally perceived to be values of a higher standard. However, freedom of expression is put to its ultimate test when the material examined goes against the very grain of what modern democratic thought espouses. Yet, the democratic psyche can only survive if it is confronted by choices. The broadcasting and watching of the Story of “O” is one of those choices. Superficially examined, it amounts to sexual abuse of a woman. O’s constant consent to the deeds committed with her and her seeming ultimate happiness, pose moral questions which could easily be ignored. However, it is the very putting of these moral questions – in stead of simply turning a blind eye to them – that enhances the capacity to make moral choices. It is interesting how the young man who falls in love with “O”, when confronted by her bondage, runs away shocked – obviously, never to return. This is not a shock which is included as a superficial attempt at balancing the moralities in a pornographic movie, but has a substantial impact on the degenerate behaviour shown. This is the catastrophe which one, at times, finds in drama. The Tribunal did not regard it necessary to delve deeper into the moral issues: it was abundantly clear that the film does satisfy the aims of drama and was correctly included by e-tv in its late night show. The complaints were not upheld. The respondent has agreed that the film which was broadcast was the film as pre-cut before classification by the BBFC. For future reference purposes the BCCSA will regard the film, as classified by the BBFC, as the film which was broadcast and held to be not in contravention of the Code in this matter. The Tribunal pointed out that there would seem to be uncertainty as to how and when a film classification and age restriction should be brought to the attention of viewers. The general rule is that the classification must be screened for the initial 180 seconds and, where appropriate, be accompanied by a voice over. Thereafter, the classification must again be shown after each advertisement break for 30 seconds. In the case of mid-night movies with continuous explicit sexual scenes, as is the case with The Story of “O”, the classification should, however, be on the screen continuously. For the sake of clarity: these films may not be broadcast before 23:45 and promotion material may only be broadcast as from 23:00. The watershed ends at 05:00. [1] The film was also broadcast on two previous occasions, without complaints having been received by the Registrar. [2006] JOL 18392 (BCTSA)
Jaeckin, who also made films such as the Emmanuelle series in the 1970’s and Lady Chatterley’s Lover in the early 1980’s.
CASE NUMBER: 38/2006 – BRETT & GRIFFITHS VS etv – SADO MASOCHISTIC FILM
[1] The film was classified as 18SNV. Complaints were received that the film degrades women and depicts them as being willing and submissive sex objects to be used for the enjoyment of men. Clause 15.1 of the Broadcasting Code provides that broadcasters shall not broadcast material which, judged within context, sanctions, promotes or glamorizes any aspect of violence against women. Clause 16.1 provides that licensees shall not broadcast material which, judged within context, sanctions, promotes or glamorizes violence based on race, national or ethnic origin, colour, religion, gender, sexual orientation, age, or mental or physical disability. Both these prohibitions shall not apply, according to clause 17 of the Code, in the following instances: (1) a bona fide scientific, documentary, dramatic, artistic, or religious broadcast which, judged within context, is of such nature; (2) broadcasts which amount to a bona fide discussion, argument or opinion on a matter pertaining to religion, belief or conscience;(3) or broadcasts which amount to a bona fide discussion, argument or opinion on a matter of public interest.