CASE NUMBER: 32/2009

DATE OF HEARING: 25 NOVEMBER 2009

ROETZ COMPLAINANT vs

MULTICHOICE RESPONDENT

TRIBUNAL: Prof Henning Viljoen (Deputy Chairperson) Mr Brian Makeketa Prof Gerrit Olivier Ms Modjadji Nkwane (Co-opted)

FOR THE COMPLAINANT: The Complainant was unable to attend.

FOR THE RESPONDENT: Mr. Bruce Mkhize, Regulatory Compliance Manager at MultiChoice. ______

Religion – freedom of religion protected by the Broadcasting Code where bona fide religious broadcast take place. Limits not overstepped. Complaint not upheld. Case No. 32/2009(BCTSA). ______SUMMARY

Episode 108 of the series “South Park”, a satire on Multichoice VUZU Channel, was found to be very disturbing and very offensive especially where Jesus is made to appear like an absolute fool. Although the satirical language and scene is crude, offensive and ribald, such language and scene did not amount to blasphemy or hate speech. The complaint is dismissed. 2

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JUDGMENT

B MAKEKETA

[1] The Registrar of the Broadcasting Complaints Commission received a complaint from Ms. Felicity Roetz, regarding the broadcast of an animation series called “South Park” on Multichoice VUZU Channel on the 13 September 2009 at 21h00. Ms. Roetz says that she finds this particular episode 108 of the series very disturbing, especially where Jesus is depicted as an absolute fool. She says that as a Christian she finds this episode blasphemous and very offensive. The part that really upset her is a scene where Jesus is in a boxing ring with Satan and after the round of boxing, Jesus goes and sits in his corner tired, beaten up with one eye shut, and one character loudly announces “Jesus lost again”. She makes a point that nobody ever makes fun of other religions and their dogmas of faith, but the Christian religion is always portrayed in films in a negative and mocking way. She feels that film directors or scriptwriters do not respect Christian religion at all. She says that she might not approve of other religions, but she respects other people’s beliefs and she expects the same courtesy from others. Ms.Roetz strongly feels that this particular episode 108 is sarcastic and nasty.

[2] The broadcaster in its response denies that the series amounts to blasphemy. It argues that the portrayal of the fight between Jesus and Satan in this programme does not amount to the advocacy of hatred that is based on religion nor does it constitute incitement to cause harm, and therefore does not justify limitations to DSTV’s right to broadcast such material. The broadcaster further argues that scriptwriters of South Park have used their creative and artistic freedom to deliver very powerful messages to society as a whole. The episode in question, the broadcaster says, contains strong corrective and moral lessons.

The broadcaster states that it is a pity that the complainant did not view the episode in its entirety and therefore never exposed herself to the outcome and the correctives contained in the conclusion of the episode. The Broadcasting Standards Authority of

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New Zealand1 ruled, “the material in the cartoon was of such a farcical, absurd, and unrealistic nature that it did not breach standards of good taste and decency in the context in which it was offered”. In view of the foregoing, the broadcaster submits that MultiChoice did not contravene clause 10 of the BCCSA Code in any way.

Moreover, the broadcaster argues, South Park is in its 12th season on the various DSTV channels. The episode that the com plaint refers to is part of a re-run of the first season of South Park. It is therefore worth noting that the majority of the DSTV audience has become well aware of the genre and nature of this series.

[3] THE BCCSA CODE Clause 10 of the BCCSA Code states that: A subscription broadcasting service licensee may not knowingly broadcast material which, judged within context:

10.1 amounts to propaganda for war;

10.2 incites imminent violence; or

10.3 advocates hatred that is based on race, ethnicity, gender or religion and which constitutes incitement to cause harm.

In a paper presented at a conference of the International Academy of Comparative Law, in Australia2, Prof. Van Wyk defined the above-mentioned terms as follows:

The term “advocacy” implies more than mere ly a statement, and includes an element of exhortation, pleading for, supporting or coercion.

Hatred is interpreted to mean an intense, passionate, or active dislike, ill will, malevolence, or feeling of antipathy or enmity connected with a disposition to injure.

1 Broadcasting Standards Authority of New Zealand decision on South Park 30 June 2006.

2 Prof. Christa van Wyk, University of South Africa, XVIth Congress of the International Academy of Comparative Law, Brisbane, Australia, 14th - 20th July 2002.

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Incitement means to call for, urge, or persuade. It means to rouse, stimulate, place in motion, to move to action, to spur or to move on.

The concept “harm” is defined as emotional damage caused by words that may have grave psychological and social consequences, such as humiliation, degradation, a loss of self-worth and dignity.

[4] THE SERIES The South Park series has been broadcast since 1992 and is an Amy-award winning, animated comedy series that satirises politics, religion, and culture. The unique brand of humour displayed in the series has met with acclaim and the series is broadcast all over the world. The series has even made the front cover of Newsweek3 and Time Magazines4.

The complaint refers to an episode of South Park , entitled Damien. The episode begins with a new kid joining the school in South Park. Damien is the son of Satan and warns the other kids that the time for Satan’s coming is near and that there will be a final battle between “good” and “evil” in South Park, the good depicted in a Jesus like figure in a boxing match with the evil depicted in a Satan like figure. The town’s people turn the fight into a huge Pay per View event and everybody places bets on the outcome of the fight. Compared to the Jesus -figure, the figure representing Satan is big, muscular and draws all the bets to win the fight except one. The Satan figure dominates the fight, with the Jesus figure barely throwing any punches. When the Jesus figure sits in a corner and feels despondent, the school kids tell him not to give up and to fight for that one person that believes he will win the fight. The Jesus figure gets back into the fight and throws a feeble punch that actually knocks the Satan figure out. In the end, it turns out that the Satan figure was the one person in town that placed the bet that the Jesus figure would win the fight. He ends up taking all the betting money, the townspeople beg the forgiveness of the Jesus figure, and the Jesus figure forgives them.

3 News Week Magazine.23 March 1998 4 Time Magazine 5 March 2006

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The fact that the episode is an animation simply means that it should not be viewed as a reality. It is the aim of animation to take the viewing public to new levels of thrills and the unimaginable. This is the exact reason why animation in films is so important. Therefore, one is right to conclude that the nature of the series of South Park challenges the viewer to use his or her imagination when viewing the series.

[5] BLASPHEMY While the BCCSA Code is silent on the definition of blasphemy, the South African Pocket Oxford Dictionary describes blasphemy as the irreverent, unlawful, and intentional publication of words or conduct whereby God is slandered, the existence of God is denied, or contempt is shown towards God.5 In a case of A. Fry and Others v 5FM6 the BCCSA Tribunal held that: “The object of blasphemy is to protect the Name of God against contempt. It matters not who commits the contempt or who hears the contempt – contempt is contempt. To make a finding that a broadcast was in contravention of the Code because of blasphemy, the Tribunal would have to resort to clause 16(3), the clause outlawing hate speech. For a finding of a contravention on this ground, the Tribunal would have to be convinced that a broadcast was so contemptuous of God that it amounted to the advocacy of hatred based on religion, coupled with incitement to cause harm.”

In a case of VANEK & OTHERS v M-NET7, the BCCSA Tribunal held that: “Although the satirical language of an episode of South Park entitled “Red Hot Catholic” wherein priests are depicted in a bad light is crude, offensive and ribald, such language does not amount to blasphemy or hate speech.”

Like with all other complaints, the Tribunal always considers the facts of each case. Nowhere during the episode is God’s name slandered. In the end, I have come to a conclusion that there was no contravention of clause 10(3), and the complaint of blasphemy cannot be substantiated.

5 rd The South African Pocket Oxford Dictionary.3 edition. Soanes,C.ed.Oxford University Press, Cape Town,2004 6 A. Fry and Others v 5FM case no.37/2007 7 Vanek and Others v MNET case no. 47/2003

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The BCCSA acknowledges the fact that South Africa is a multi religious society. Due to the deep rootedness and conviction of South Africans in what they believe in, the South African society has become very sensitive when coming to the subject matter of religion. Emotions run very high especially in cases where one particular religious group feels unfairly portrayed and attacked in the media. A case in point is this episode 108 of South Park broadcast by Multichoice, which the complainant feels attacks and mocks what she strongly feels and believes in. While the BCCSA do acknowledge the fact that programming falls outside its mandate, however, broadcasters should always take care when airing episodes or a film that touches the core of people’s religions.

[6] TIME OF THE EPISODE It is important to note that the programme was broadcast at 21h00, which is one hour after the commencement of the watershed period for the subscription broadcasters. I do agree with the broadcaster that children would most likely not be watching at this time. The care shown by the broadcaster in broadcast ing this episode an hour into the watershed period further demonstrate s to me the bona fide intention of the broadcaster with this series.

[7] THE AGE RESTRICTION The programme carried an age restriction of 18 with the warning of strong language. The complainant concurs with this fact. Although these precautionary measures were not necessary, given the time at which the programme was broadcast, I agree that this was sufficient to mitigate any harm that may have been caused to sensitive viewers like the complainant. One deduces further that South Park is aimed at an adult audience that is able to interpret the content broadcasted and would not accept the absurdity of the cartoon characters at face value.

[8] CONTRAVENTION OF THE BCCSA CODE Religion is a topic that, by its very nature, si open for debate, indeed, vehement debate. The concept of a unitary state religion is anathema to the democratic state. That is why section 15 of the Constitution of the Republic of South Africa guarantees freedom of religion. Freedom of speech must also be awarded a ge nerous interpretation and be fully invoked at the outset when testing the facts.

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In Islamic Unity Convention v The Independent Broadcasting Authority and Others8 Langa DCJ convincingly contrasted the current situation regarding freedom of expression with that of the restrictive past, as follows:

“Notwithstanding the fact that the right to freedom of expression and speech has always been recognized in the South African common law, we have recently emerged from a severely restrictive past where expression, especially political and artistic expression, was extensively circumscribed by various legislative enactments. The restrictions that were placed on expression were not only a denial of democracy itself, but also exacerbated the impact of the systemic violations of other fundamental human rights in South Africa. Those restrictions would be incompatible with South Africa’s present commitment to a society based on a ‘constitutionally protected culture of openness and democracy and universal human rights for South Africans of all ages, classes and colours.”

The test that we must apply seems to be the one contained in section 16(2) of the Constitution. This subsection contains limitations on the freedom of expression in the sense that it excludes certain expressions from the protection afforded by section 16(1). The relevant exclusion in this instance is the advocacy of hatred based on religion.

Applied to the episode in question, it is my opinion that the episode complained of cannot be c onsidered to be blasphemous or to amount to the advocacy of hatred based on religion. The whole series of SOUTH PARK falls within the genre of satire and no serious conclusions can be drawn from anything done or said by any of the characters. I do not think that there are any pretensions in the episode under consideration to convey any religious truths. Seen in context, it is my view that the episode complained of does not fall within the limitation contained in section 16(2) of the Constitution.

8 Laugh It Off Promotions CC v SAB International (Finance) BV t/a Sabmark International (Freedom of Expression Institute as Amicus Curiae) 2006 (1) SA 144 (CC).

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Considering whether the programme had breached the good taste and decency standard, I had to take into account a number of contextual factors, including South Park’s time of screening, the 18 years classification warnings, and the fact that it is an animation, meaning that it’s limited to an adult target audience. While I do agree that the contextual factors alone are not enough to save this episode, however, we should bear in mind that the material in the cartoon is of such a farcical, absurd and unrealistic nature that an objective , reasonable viewer would not find it to have breached standards of good taste and decency in the context in which it was offered. In no way does the episode amount to propaganda for war; incite to imminent violence; or advocate hatred that is based on religion. In the end I find no contravention of the BCCSA Code.

The complaint is not upheld.

BRIAN MAKEKETA COMMISSIONER Commissioners Viljoen, Olivier, and Nkwane (Co-Opted) concurred with the judgment.

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