The online version of the infamous The Spear painting will be classified by the Film and Publications Board.
The Goodman Gallery’s defence team had asked for the dismissal of the case against it because, advocate Matthew Welz said, the painting no longer existed.
But the board insisted the online version still existed to pose problems for children and sensitive people.
The board’s chief operations officer, Mmapula Fisha, who chaired proceedings, said: “We will still classify the painting as is our duty to children. Online content cannot be looked at in isolation.”
On Tuesday, the board, City Press and the Goodman Gallery debated and discussed the possible classification and jurisdiction, culture and the politics of the image.
The City Press legal team called on the board to keep within its jurisdiction and the boundaries set by the legislation, which exonerate bona fide newspapers from regulation by the board.
Advocate Steve Budlender told the board: “The image on our website no longer exists.”
He then said the board would be acting unlawfully and beyond statute if it continued with the case against the publication.
Budlender said there were no grounds to classify the painting as explicit and unfit for children under 18.
“Children over 16 are allowed by the Children’s Act to have sex. They can access contraception and can have abortions, and then they are not allowed to look at the picture of a (penis)?”
He urged the board to reject the complaint. “City Press is bound by the Press Code. If there has been any violation, it is not a matter for this board, but that of the press ombudsman,” Budlender said.
After deliberations, the board agreed it had no jurisdiction and said the complaint would be escalated to the ombudsman. “We accept that the print media self-regulation body needs to deal with this,” Fisha said.
But a decision on how to classify the online picture of the painting would be made within two days.
Welz explained the nature of art galleries and the work they produced for their consumers.
“This painting does not have a gratuitous array of (penises), it is not a close-up and it does not exaggerate,” he said.
It was an extension of other pieces that were on show.
“Art lovers are confronted by nudity in various contexts and techniques.”
The classification of this artwork would serve no purpose because “…tens of thousands of websites have it, it has been served on tens of thousands of servers, and insisting on classifying just one is an exercise in futility”.
He said the whole process smacked of victimisation, an accusation that Fisha denied.
the DA has reacted with disbelief at the Film and Publications Board’s decision to classify the artwork.
DA justice spokeswoman Dene Smuts said the board appeared “to be scraping the bottom of the barrel” in its attempts to find grounds “for restricting the distribution or display of The Spear”.
It was in fact “measurably” the result of the ANC’s attempts at censorship that images of the painting had gone viral.
“Frankly, the vandalised painting is more frightening to children than the original,” said Smuts.
“The decision by the board today, and the vehemence with which the ANC and its allies have pursued ‘banning in perpetuity’ Murray’s work, represents yet another incident in the chain of events taking the country further and further away from the free speech dispensation under the Bill of Rights,” she said