On Digital Media (ODM) broadcasting hardcore pornography TV channels on its StarSat service in South Africa argued in the Western Cape High Court today that "there is no ban on pornography" and that the Woodmead-based satellite pay-TV platform isn't doing anything illegal showing sex channels.
The Justice Alliance of South Africa (Jasa), Cause for Justice and Doctors for Life have taken StarSat to court over On Digital Media's porn channels and want the decision by South Africa's broadcasting regulator, the Independent Communications Authority of South Africa (Icasa) 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 argues that ODM and StarTimes Media are contravening the Films and Publications Act by exposing children to X18 content on television.
The group argues that Icasa erred in granting a licence to ODM to shown pornography on South African television on TopTV, now StarSat.
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.
Today On Digital Media argued in the Western Cape High Court that it is not illegal for StarSat to broadcast pornography to adults on the sex channels.
Steven Budlender representing ODM told the court that the Sexual Offences Amendment Act and the Films and Publications Act criminalised the display or distribution of pornography to children and child pornography.
"Any person who exhibits an X18 film to a person under the age of 18 years shall be guilty of an offence and liable to imprisonment and a fine. They don't have any provision in relation to adults".
Steven Budlender argued that On Digital Media was exempt from applying to the Film and Publication Board to classify their films and were instead subject to regulation by Icasa.
StarSat porn channels also broadcast X18 pornography, nor content that had been refused classification, or XX18 pornography.
"Save for refused classifications and XX, there is no absolute ban on pornography. There is only a regulation of pornography," said Steven Budlender.
Icasa on Wednesday admitted that mistakes could happen whereby children could get access and see the porn channels broadcast by StarSat.
"We have to accept that it is possible that children are able to get around security codes,” said Icasa's lawyer Paul Kennedy. "These things do happen but does that mean that nothing can ever be authorised?"
