Sexual offences: pornography and children

The Prevention and Combating of Trafficking in Persons Act

3.143 The Prevention and Combating of Trafficking in Persons Act includes a child under the definition of “abuse of vulnerability”. The Act aims to inter alia amend the Children’s Act by substituting the definition of “commercial sexual exploitation” with the following definition.

commercial sexual exploitation”, in relation to a child means ­

[(a)]the procurement of a child to perform sexual activities for financial or other reward, including acts of prostitution or pornography, irrespective of whether that reward is claimed by, payable to or shared with the procurer, the child, the parent or care-giver of the child, or any other person [;or

(b) trafficking in a child for use in sexual activities, including prostitution or pornography];
3.144 The definition of exploitation includes sexual exploitation.
“sexual exploitation” means the commission of –

(a) any sexual offence referred to in the Criminal Law (Sexual Offences and Related Matters) Amendment Act; or

(b) any offence of a sexual nature in any other law;
3.145 Trafficking in persons is criminalised in terms of section 4 of the Act. Which inter alia provides that any person who delivers, recruits, transports, transfers, harbours, sells, exchanges, leases or receives another person within or across the borders of the Republic by means of the abuse of vulnerability or the abuse of power aimed at either the person or an immediate family member of that person or any other person in close relationship to that person, for the purpose of any form or manner of exploitation is guilty of the offence of trafficking in persons. This definition also includes the offence of adopting a child, facilitated or secured through legal or illegal means within or across the borders of the Republic, for the purpose of the exploitation of that child or other person in any form or manner.
3.146 The facilitating of trafficking in persons is criminalised under section 8 of the Act. The offence reads as follows:
Conduct facilitating trafficking in persons
8.(1) Any person who – . . .

(c) intentionally advertises, publishes, prints, broadcasts, distributes or causes the advertisement, publication, printing, broadcast, or distribution of information that facilitates or promotes trafficking in persons by any means, including the use of the Internet or other information technology; . . .

Is guilty of an offence.

(2)(a) An electronic communications service provider operating in the Republic must take all reasonable steps to prevent the use of its service for the hosting of information referred to in subsection (1)(c).

(b) An electronic communications service provider that is aware or becomes aware of any electronic communications which contain information referred to in subsection (1)(c) and which is stored upon or transmitted over its electronic communications system must –

(i) without delay report the electronic communications identity number from which those electronic communications originated any other particulars available to such electronic communications service provider which can be used to identify the person or electronic communications service provider (including an electronic communications service provider operating outside the Republic) from who or from which those electronic communications originated, to the South African Police Service;

(ii) take such reasonable steps as are necessary to preserve evidence as may be required by the relevant investigation and prosecuting authorities, for purposes of investigation and prosecution by the relevant authorities; and

(iii) without delay take such reasonable steps as are necessary to prevent continued access to those electronic communications –

(aa) by any of the customers of that electronic communications service provider; or

(bb) by any person if they are stored on the system of the electronic communications service provider.

(3) An electronic communications service provider which fails to comply with the provisions of subsection (2)(a) or (b) is guilty of an offence.

(4) Nothing in this section places a general obligation on an electronic communications service provider to –

(a) monitor the data which it transmits or stores; or

(b) actively seek facts or circumstances indicating an unlawful activity.

(5) An electronic communications service provider is not liable for any loss sustained by or damage caused to any person as a result of any action taken in good faith in terms of subsection (2)(b(iii).
3.147 The President assented to the Act on 28 July 2013, which was published in the Government Gazette on 29 July 2013. Section 50 of the Act provides that the Act takes effect on a date fixed by the President by proclamation in the Gazette. Different dates may be fixed in respect of different provisions of the Act. The reason for this provision is to allow for the finalisation of regulations, national instructions and directives to be issued in terms of the Act, so as to ensure the smooth implementation of the Act.
3.148 The Ministers of Justice and Correctional Services, Home Affairs and Social Development must, in terms of section 43 of the Act, make regulations to give effect to various provisions in the Act that have a bearing on the duties of their respective departments. In terms of section 44 of the Act, the Directors-General: Justice and Constitutional Development, Home Affairs and Social Development, the National Director of Public Prosecutions and the National Commissioner of the South African Police Service must issue directives and national instructions with which officials must comply in the execution of their duties imposed on them in terms of the Act.
3.149 The Act moreover requires all regulations which have financial implications for the State to be approved by the Minister of Finance. The Minister of Finance has approved the regulations to be made by the Minister of Justice and Constitutional Development. The Act also requires all regulations to be submitted to Parliament for approval 60 days prior to publication thereof in the Gazette.
3.150 With the above as background, it is anticipated that the Act will be implemented in the second half of 2015, subject to the Departments of Home Affairs and Social Development submitting their regulations to Parliament within the next month.

2 The applicable administrative classification regulation response

1.