Launch of TopTV's porn channels threatened

The South Gauteng High Court will only decide next week whether TopTV can launch three new pornography channels on January 20.

The Independent Communications Authority of South Africa (Icasa) brought an interdict application before Judge Ndawuyake Tshabalala on Friday, hoping to delay the independent broadcaster’s launch.

After lengthy arguments delivered by both parties’ legal counsel were heard until 7pm, Tshabalala announced his intention to rule on the matter “by latest Wednesday”.

The dispute relates to Icasa’s subscription broadcasting services regulations, specifically paragraphs 3.5 and 3.6. These regulations stipulate that Icasa must authorise or refuse applications for additional channels to be added to an existing bouquet within 60 days.

By November 13 2011, TopTV had received no response from Icasa about the application, which was made on September 13 2011.

The independent broadcaster argued regulations indicate that applications are approved by default if no response if forthcoming.

“If upon the expiry of the 60-day period contemplated in 3.4, the authority has not issued a certificate the channel shall be regarded as having been authorised,” reads paragraph 3.5.

Advocate Terry Motau SC, Icasa’s legal representative in the matter, maintained the body was still dealing with the application and needed more time for it to be “properly reviewed”.

“Within the South African context, the content of this proposed channel is unprecedented.
The rights contained in the applicant’s broadcasting license are not enhanced by the missing of a deadline,” Motau argued.

TopTV’s legal counsel, advocate Paul Kennedy SC, disputed Motau’s claim saying Icasa did not “apply their mind” and are attempting to “shift the goalposts to suit themselves”.

“As per legislation, you can add channels to an existing bouquet with a new application. As such the argument is invalid. Icasa had the 60 days to look at this. We reminded them, time and time again, but nothing was done,” said Kennedy.

This is the second interdict Icasa sought against On-Digital Media, TopTV’s parent company, after Icasa’s initial December 20 application was withdrawn.

Icasa’s initial challenge was withdrawn after TopTV agreed to move its broadcast date from December 20 2011 to January 20. TopTV has refused to delay broadcast again, as its contract with United Kingdom adult content provider, Playboy TV UK/Benelux, expires on the new planned broadcast date.

Kennedy said, “If Icasa prevents broadcast again, all the funds and preparations already put in place would be wasted.”

The channels would include the soft pornography Playboy Europe along with more hardcore offerings from Adult XXX and Private Spice. It would be aired on an eight-hour repeated schedule to complete a 24-hour continuous cycle.

Broadcasting permitted, it would be the first 24-hour pornography service to be transmitted to South African television.

“Pornography is always controversial but let’s be responsible. We don’t live in a nanny state that dictates what we can do. Apartheid dictated what we were allowed to read and watch but thank goodness those days are over,” said Kennedy.

In the meantime, Icasa planned to host public hearings on the controversial content on Monday at its offices in Sandton, Johannesburg.

Nickolaus Bauer

Nickolaus Bauer

Nickolaus Bauer is the Mail & Guardian's jack of all trades news reporter that chases down stories ranging from politics and sports to big business and social justice. Armed with an iPad, SLR camera, camcorder and dictaphone, he aims to fight ignorance and pessimism through written words, photographs and videos. He believes South Africa could be the greatest country in the world if only her citizens would give her a chance to flourish instead of dwell on the negativity. When he's not begging his sub-editors for an extra twenty minutes after deadline, he's also known to dabble in the occasional poignant column that will leave you mulling around in the depths of your psyche. The quintessential workaholic, you can also catch him doing sports on the weekday breakfast show on SAfm and presenting the SAfm Sports Special over the weekend. Read more from Nickolaus Bauer

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