South Africans will not be getting access to explicit pornographic television channels soon if a Pretoria High Court judge has his way.
Judge Ben du Plessis on Friday turned down an application by a Pretoria company, OtherChoice, to legalise the distribution of its smart cards, which give access to Spain-based Don’t Panic Television’s pornographic programmes.
OtherChoice wanted the court to declare that its sale of smart cards did not require it to obtain a broadcasting or signal distribution licence and that its activities were not unlawful.
Du Plessis, however, said no court could sanction the committing of a crime or a wrongful act and it was clear that it was unlawful for OtherChoice to sell the smart cards.
Referring to expert evidence, he said it was clear that without the smart cards, no member of the public could view the Don’t Panic TV programmes in South Africa.
There was no doubt that by selling the cards, OtherChoice played an indispensable part in making the pornographic programmes available in intelligible format to the South African public. Therefore, if Don’t Panic could not lawfully broadcast its programmes in South Africa, OtherChoice would be acting unlawfully.
”It is clear that Don’t Panic TV, assistant by OtherChoice, is broadcasting into South Africa. Similarly, the two entities are providing a broadcasting service.
”Terrestrial frequencies and satellites are not situation within the borders of any country.
”By requiring a person who renders a service in this country to be licensed — albeit that person is in a foreign country while rendering the service — our legislature is not prescribing to that person what he or she may do in the foreign country. The legislature is prescribing what the effect of what the person does may be in this country.
”I conclude that Section 34(1) of the Broadcasting Act requires the broadcasting service that Don’t Panic Television and OtherChoice render to be licensed.
”The authorities in this country have a very effective sanction against Don’t Panic TV: they can interdict the applicant from unlawfully selling the smart cards,” the judge said.
He ordered OtherChoice to pay the legal costs of the application. Despite the application possibly being of public interest, it was brought because of OtherChoice’s own commercial interest. — Sapa