![Faith Muthambi](https://techcentral.co.za/wp-content/uploads/2021/09/Faith-Muthambi-6401.jpg)
The department of communications is confident of winning its constitutional court appeal against encryption of set-top boxes.
The supreme court of appeal ruled recently that the decision by communications minister Faith Muthambi to drop encryption from the set-top boxes for digital terrestrial television was flawed.
The court ruling was a victory for free-to-air broadcaster e.tv, which insists on encryption to provide “high-quality content”.
However, Naspers-owned pay-TV provider MultiChoice and the department have launched a constitutional court appeal against the judgment.
“We’re confident that we have a strong case,” said Muthambi’s spokesman, Mishack Molakeng.
MultiChoice said that subsidiary M-Net is appealing the “whole of the supreme court of appeal judgment”.
“We are seeking leave to appeal because these errors have far-reaching implications for the process of digital migration, but equally critically for the way in which executive authority is exercised in the ICT sector,” MultiChoice said.
M-Net further plans to challenge e.tv’s argument that encryption is needed to allow free-to-air broadcasters to obtain high-definition content.
“M-Net had furnished specific evidence to demonstrate to the court that the majority of free-to-air terrestrial television broadcasters worldwide — including the BBC, ITV, and Channel 5 in the UK, and PBS, ABC, NBC and CBS in the US — do not encrypt their signals and are able to obtain high-definition television content from international studios,” said MultiChoice.
The view of the department and MultiChoice is supported by technology consultant Andrew Fraser.
![Andrew Fraser](https://techcentral.co.za/wp-content/uploads/2021/09/andrew-fraser-640.jpg)
“The department of communications may have failed to properly consult with all players, and will have to do that, but I think the supreme court of appeal erred in striking down the two regulation clauses,” Fraser said.
The department proposed a “control system” to prevent the subsidised set-top boxes from being sold internationally.
“The ‘control system’ that has been proposed by the minister is the simplest method to fix one issue: to stop taxpayer-subsidised set-top boxes from being exported. That’s all it is meant to do, so a simple mechanism that disables the decoder completely if it doesn’t receive a keep-awake signal from one of the South African broadcasters is sufficient,” said Fraser.
The government will provide about 5m set-top boxes to poor households as the country migrates broadcast TV out of the key 800MHz spectrum earmarked for mobile broadband services.
MultiChoice is a dominant player in the digital pay-TV space, and the company has argued that encryption will allow e.tv to jump-start its pay-TV offering.
“I read MultiChoice’s answering affidavit in e.tv’s appeal to the supreme court of appeal, and I can’t understand how the court bench dismissed their arguments. While they obviously want to keep the barriers to entry high in the pay-TV space, they are legally within their rights to do so,” said Fraser.
“They might be a monopoly, but we’re not going to fix that by introducing something that blatantly — and unfairly — favours another company’s business model at the cost of the South African taxpayer,” he added.