## Facts

- Police searched Tasco Luc De Reuck’s home in July 2000 and seized material alleged to constitute child pornography under the Films and Publications Act 65 of 1996.
- De Reuck, a film producer, was charged in regional court with possessing and importing child pornography under § 27(1) of the Act.
- The criminal case was postponed to permit a constitutional challenge to § 27(1) and the statutory definition of “child pornography.”
- De Reuck contended that the provisions were overbroad and infringed constitutional rights to freedom of expression, privacy, and equality, including because he claimed a legitimate purpose (documentary film production).
- The High Court rejected the challenge; De Reuck sought and obtained leave to appeal to the Constitutional Court.

## Issues

1. Whether criminalizing possession and importation of child pornography limits freedom of expression and, if so, whether the limit is justified under the constitutional limitation clause.
2. Whether criminalizing private possession of child pornography infringes privacy and, if so, whether the infringement is justified.
3. Whether the scheme violates equality by treating possession differently from distribution/broadcasting or by burdening professionals who may need access for legitimate purposes.
4. Whether the statutory definition of “child pornography” is impermissibly overbroad as to the material covered (including simulated depictions) and the persons affected.

## Decision

- The Constitutional Court (Langa DCJ) dismissed the appeal and upheld § 27(1) and the related definitional provisions.
- The Court held that the provisions limit freedom of expression and privacy, but the limitations are reasonable and justifiable given the objective of combating child pornography and protecting children.
- The Court rejected the equality claim, finding the legislative distinctions rational and not unfair.
- The Court construed the definition narrowly: material qualifies only where, viewed objectively as a whole, its predominant purpose is erotic stimulation and it explicitly depicts specified sexual conduct involving a child; depictions predominantly stimulating aesthetic feeling fall outside the definition.
- The Court relied in part on an exemption mechanism allowing authorization for bona fide research or similar purposes upon good cause shown.

## Legal Principles

- Expression is presumptively protected unless excluded by an express constitutional carve-out; nonetheless, expression may be restricted if the limitation is justified under the general limitations framework.
- Criminal prohibitions on child pornography may be justified by objectives including protecting children’s dignity, suppressing demand for abusive material, and reducing risks of further harm to children.
- Privacy interests in the home are substantial but not absolute; possession-related conduct can be regulated where closely linked to harm and exploitation of children.
- Overbreadth challenges may fail where courts interpret statutory definitions to confine liability to sexually explicit, eroticized depictions, assessed objectively and in context.
- An exemption or authorization procedure for bona fide professional or research purposes can support the proportionality of restrictions and weaken claims of unfairness.

## Conclusion

The Court upheld the statutory ban on possessing and importing child pornography, holding that the resulting limits on expression and privacy were proportionate to the compelling aim of protecting children and eradicating the child-pornography market, and that the scheme—narrowly construed and supplemented by an exemption process—did not violate equality or suffer from unconstitutional overbreadth.


De Reuck v. Dir. of Pub. Prosecutions, 2004 (1) S. Afr. L. Rep. 406 (S. Afr. Const. Ct. 2003)