Judgment was reserved on Monday in the review application of On Digital Media’s licence to operate three pornographic channels on pay television. ODM operates the satellite pay-TV service StarSat.
The Western Cape high court heard a concession from the group’s lawyer, Steven Budlender, that in fact section 24(3)(a) of the Film and Publication Act applied to his client.
This meant that by law it was required to register with the Film And Publications board to broadcast adult content, and that the Independent Communications Authority of South Africa (Icasa) should have made granting a licence contingent on this condition.
Budlender suggested that this was a widespread oversight in the broadcasting industry, arguing that other channel operators, including eNCA, should also be registered, despite the fact that they did not air X-rated films, because it was a law of general application.
However, Budlender argued that the omission was no reason to set aside On Digital Media’s licence to operate the three channels, but rather that the court should as a corrective measure impose the condition.
“Your lordship has the power to grant substitution,” he argued before judge Lee Bozalek.
Budlender argued that in the interim an order be granted which sees On Digital Media give an undertaking that it will not knowingly broadcast any films that have been given a single X-rated classification.
This met with strong opposition from lawyers acting for the Justice Alliance of South Africa (Jasa), which is seeking a court order obliging Icasa to rehear its licence application, and its supporting applicants.
Darryl Cooke, acting on behalf of Cause for Justice, argued that the submission was “cynical” and would allow the pay channel operator to omit applying for classification to enable it to continue broadcasting material that may be harmful to children.
Jasa has argued that ODM had not been truthful to Icasa in disclosing what content would be on the channel.
The case has heard extensive argument about the nature of the films, with lawyers urging a review of the licence saying the titles of the films aired clashed with ODM’s contention that it was showing sex between “adoring” partners exchanging intimate glances.
The parties calling for the review have argued that the licence application should be reheard from scratch.
But during Cooke’s arguments, Bozalek pointed out that this would lead to a repeat of submissions on showing porn on local pay stations that had already been aired extensively in the original application. — Sapa
