By Duncan McLeod

Broadcasting regulator Icasa is expected to furnish its reasons within the next week for barring TopTV from launching adult channels on its satellite pay-TV platform. However it tries to justify the decision, Icasa deserves to be challenged all the way to the constitutional court if necessary because it has infringed on our right to freedom of speech.

Eddie Mbalo, chairman and acting CEO at TopTV, didn’t mince his words in an interview with me last week when he denounced Icasa’s decision to prevent the pay-TV player from launching racy new channels as part of a proposed new bouquet.

“Our struggle was about freedom, it was about choice, it was about South Africans having the right to determine what is good for them or not,” he said. “It’s going to set a terrible precedent if Icasa is allowed to get away with it.”

Mbalo said he was “surprised” that the media, which is “so articulate and very strong around the so-called secrecy bill, has allowed Icasa to determine what South Africans are able to see and not see”.

Icasa’s decision meant SA was in danger of “going back to the past, where the state, because of its own beliefs, or the beliefs of individuals in that state, could determine what South Africans could see”.

Though Mbalo has been criticised in some quarters for his comments, I can’t fault his logic. Personally, I have no interest in subscribing to a soft-porn bouquet from my satellite provider, but serious questions need to be asked about what right Icasa has to make those decisions on behalf of citizens living in a free state.

And where does the interference stop?

Now that it has prevented TopTV from showing titillating content, perhaps the mandarins at Icasa will decide that M-Net can’t broadcast popular shows such as Californication or Game of Thrones, both of which contain material that is arguably far more disturbing than anything served up by Playboy TV, one of the channels TopTV wanted to offer as part of its new bouquet. It’s a slippery slope.

I’m not arguing that SA television should become a cesspool of porn. There are very good reasons why free-to-air channels, where access by minors can’t always be controlled by a parent or guardian, should not broadcast content that’s unsuitable for children.

Arguably — and ironically — Icasa has been too lax in policing channels like e.tv that regularly show sexually explicit content. For years, e.tv has been broadcasting the same sort of soft porn late at night that TopTV wants to offer. Why hasn’t Icasa moved as strongly against e.tv as it has against TopTV? It smacks of double standards.

There is a need to protect minors from adult programming but TopTV was not going to offer its new bouquet over a free-to-air mechanism. Rather, it was going to give parents the sort of control that would allow them to block access to that content using technology and passwords.

Nothing is foolproof (or childproof), but the broadcaster was going to offer the same sort of parental controls that rival MultiChoice offers on its DStv platform. Apparently, that wasn’t enough for Icasa.

TopTV hasn’t decided yet whether it will challenge Icasa’s decision in the courts. It must still study Icasa’s reasons document and consult with its board of directors and its shareholders. But there appears to be little doubt that the matter can be taken successfully on review as far as the constitutional court if necessary.

This is not so much about the rights of TopTV to launch adult channels but about an institution of state arbitrarily taking away some of our hard-won freedoms.