The Justice Alliance of South Africa (Jasa) argued in the Western Cape High Court yesterday that the pornographic TV channels on On Digital Media (ODM) and StarTimes South Africa's StarSat satellite pay-TV platform in South Africa are promoting unsafe sex and infidelity and that South Africa's broadcasting regulator contravened laws when it granted StarSat a licence to start broadcasting the sex channels.
Jasa, Cause for Justice and Doctors for Life are taking StarSat to court over the satellite-TV operator's porn TV channels.
The group argues that StarSat's (formerly TopTV) broadcasting of pornography on South African television contravenes section 19 of the Sexual Offences Amendment Act, which deals with the exposure to, or display of pornography to children, as well as the Films and Publications Act.
Besides StarSat, the respondents in the porn TV case include the chairperson of South African's broadcasting regulator, Stephen Mncube of the Independent Communications Authority of South Africa (Icasa) - which initially denied StarSat's first application; Peter van der Steen who is StarSat's business rescue practitioner since the company is in business rescue; and the minister of communications, Faith Muthambi.
The group argued in court that ODM and StarTimes Media are contravening the Films and Publications Act by exposing children to X18 content on television.
Icasa granted ODM a licence to broadcasting its bouquet of porn channels in April 2013 after StarSat brought a second application to show porn on TV to subscribers. Out of the 644 written application, over 90% opposed the granting of a porn TV licence to StarSat.
StarSat started showing Playboy TV, Desire TV and Private Spice as a stand-alone sex bouquet which requires a separate subscription and PIN. StarSat quietly changed Private Spice to the Brazzers TV channel.
The sex TV channel shows pornographic material entitled "Young Harlots: Carnal Education", "Backdoor Bikini MILFs", "Girls Behaving Badly" and "The Secret Lives of Kept Wives".
StarSat has previously declined to give subscription numbers for its porn bouquet but according to court papers has about 400 subscribers.
"The true content of the material wasn't told to Icasa," says Darryl Cooke of Jasa. "These programmes are promoting infidelity, unsafe sex and not what was represented to Icasa and the public".
The group also argues that assurances given by On Digital Media regarding Playboy TV UK that it complied with laws are not the case and that ODM knew it.
"We have, over a period of six years, repeated breaches. They are a serial offender. We are told in these reports that they are reckless and that they are repeated breachers".
Darryl Cooke said Icasa still had the discretion to refuse to authorise porn on South African television and to balancing the rights to freedom of expression with the rights of children and the need to avoid harm.
The group's advocate Murray Bridgman argued that ODM and StarSat had admitted it was likely or may well happen that children would view their pornography.
Murray Bridgman said that pornography is an issue that impacts on all South Africancommunities as a whole and on the constitutional rights to dignity, equality and security.
"[There was] one public hearing, one city, one day. Not good enough. There should have been meetings in each of the nine provinces and there should have been a far greater level of engagement".
Murray Bridgman argued that Icasa's advert in the Government Gazette inviting public comment did not even mention that StarSat's sex channels were to broadcast porn. If the public wanted to view the application, they had to make a photocopy at Icasa’s library in Johannesburg.
"If this had been done right, there would have been 1 649 objections," He said that the public hearing in March 2013 gave inadequate time to objectors and denied the Film and Publication Board (FPB) the chance to make oral submissions over ODM's application for porn channels.
Icasa's special committee was criticised for not appointing experts and inspectors to investigate the content of StarSat's porn TV channels and to make sure it abided by certain criteria.
