Communications regulator Icasa was not deceived about the type of content that would be shown on StarSat’s adult pay channels, the Western Cape high court heard on Thursday.
He said sexologist Marlene Wasserman, known as Dr Eve, had stated the content was not violent and that she looked for things like eye-gazing and consent during sex.
“All these debates about content were never about whether it was couples or threesomes or infidelity. The debate was about whether it was violent,” he argued.
Budlender was defending why ODM was granted three licences last April to broadcast Playboy TV, Desire TV and Brazzers, subject to conditions.
Icasa’s decision to grant the licences was under scrutiny by the court after applications by the Justice Alliance of South Africa (Jasa), Cause for Justice and Doctors for Life.
On Monday, Jasa lawyer Darryl Cooke said he had looked at the names of the programmes offered by the channels overseas and concluded they were promoting infidelity and unsafe sex.
“The true content of the material wasn’t told to Icasa. They acted under a misapprehension and therefore they took irrelevant considerations into account.”
Budlender said the legal exercise was not to look at show titles such as Your Boyfriend Will Never Know and make assumptions about the content.
“Your lordship has no idea whether this is a parody of something, a plot-driven scene or something that is shown as reality. We simply have no idea. It really is very broad.”
He stressed that the channels offered a wide range of programmes and that not all would be educational or entertaining.
It was up to the Broadcasting Complaints Commission to deal with viewers’ complaints about content, not Icasa.
Judge Lee Bozalek agreed they were just titles but said he did not think “a spade was being called a spade”.
This was all the more reason why Icasa should have taken random looks at the content beforehand, he said.
“What point would be served by a broadcasting regime which says that maybe you’re going to put snuff movies on TV, you’re calling them euphemistic descriptions but the code will sort you out. Isn’t that short-sighted?” the judge asked.
Budlender said that if the review application was dismissed, Jasa would in any way approach the Broadcasting Complaints Commission to complain about the content and that issue would be resolved.
“We are not dealing here with a Sextopia or an Adult World or someone who ships something in brown envelopes. We are dealing here with one of four licensed broadcasters. They are a serious and credible entity.”
Jasa was criticised for raising their concerns about misrepresentation of content at such a late stage, and not in their founding and supplementary papers. — Sapa