It is not a crime to distribute pornography to adults on a secure channel, On Digital Media (ODM) argued in the Western Cape high court on Wednesday.
Steven Budlender, for ODM, said the Sexual Offences Amendment Act and the Films and Publications Act criminalised the display and/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.”
Budlender was defending why ODM (operating as Top TV and later StarSat) was granted three licences last April to broadcast Playboy TV, Desire TV and Brazzers, subject to conditions.
Communications regulator 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.
Budlender said the licences were granted on condition that the channels were offered as separate and verified subscription packages, broadcast during the watershed period of 8pm and 5am, and accessible with a double-pin process.
This made it extremely unlikely that children would access the content.
He said licensed broadcasters such as ODM were exempt from applying to the Film and Publication Board to classify their films and were instead subject to regulation by Icasa.
Regardless, ODM had committed to broadcasting X18 content, not content that had previously been refused classification or was XX18.
“Save for refused classifications and XX, there is no absolute ban on pornography. There is only a regulation of pornography.”
On Monday, nonprofit organisation Cause for Justice had argued that the licensing of the channels amounted to a contravention of two criminal statutes.
Their advocate, Murray Bridgman, argued that ODM had previously conceded that it was likely or may well happen that children would view their pornography.
“That is the form of legal intent known as dolis eventualis,” he said, explaining that a party could be held accountable where they knew the outcome of their actions would cause harm.
He said the extremely resourceful child would be able to bypass the required pin and other security features for the subscription channels.
Earlier on Wednesday, Icasa’s lawyer, Paul Kennedy, said it was conceivable that mistakes could happen.
“We have to accept that children are savvy these days. We have to accept that it is possible that children are able to get around security codes,” he said. “These things do happen but does that mean that nothing can ever be authorised?” — Sapa
