The South African broadcasting regulator admitted in the Western Cape High Court that the way in which the regulator notified the South African public and TV industry that On Digital Media (ODM) has applied and want to broadcast pornography on South African television was not effective in the context in which it was done.
South Africa's broadcasting regulator also failed to appoint experts to consider On Digital Media's application for sex TV channels.
The Justice Alliance of South Africa (Jasa), Cause for Justice and Doctors for Life are taking StarSat to court over the Woodmead-based satellite-TV operator's porn TV channels and want the decision by the regulator to be overturned.
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.
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.
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); 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.
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 hardcore pornographic Brazzers TV channel.
StarSat has previously declined to give subscription numbers for its porn bouquet but according to court papers has about 400 subscribers.
Icasa told the Western Cape High Court that the South African public and the TV industry were sufficiently advised that ODM had applied to broadcast sex channels on its satellite-TV platform.
Judge Lee Bozalek took issue with Icasa's argument, asking why the Government Gazette notice in December 2012 did not make any mention of what the applied for TV channels were going to broadcast, namely pornography.
"How can that ever be rational? What is the purpose of this notice? It is to bring to the attention of the public that a matter of potential controversy is the subject of this application?"
"If Joe Bloggs has very strong views about the broadcasting of adult material, how would he not know this is an application to put National Geographic on a channel?" asked judge Lee Bozalek.
Icasa admitted that the Government Gazette notice without context was not effective but said that it was not Icasa's responsibility to spell everything out.
"It is not for Icasa to point out to the public that you may be interested in this because it raises X, Y or Z," said Icasa.
"If someone is interested and concerned about what broadcasters broadcast, as indeed these parties are, they could and should keep their ears to the ground," said Icasa.
Judge Lee Bozalek said the process was inefficient by which Icasa made it possible for the public to access the application documents. People have to travel to Icasa's library in Johannesburg to access a physical copy of the full application StarSat made to start broadcasting pornography on television.
Judge Lee Bozalek compared Icasa's methods to those used in the 1970s, not in the digital era.
"This is a communications authority ironically. It deals with communications," said judge Lee Bozalek.
Icasa also failed to appoint experts to consider On Digital Media's application for sex TV channels.
"The committee felt there was no need for that. The matter was not so complex," argued Icasa.
"What would these experts in fact be doing? What were they needed for?" argued Icasa in the Western Cape High Court. "The failure to appoint experts did not render the procedure unlawful or unfair".
