Porn is not illegal, StarSat argues - TechCentral

Porn is not illegal, StarSat argues

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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

6 Comments

  1. It does not matter how one pulls out the arguments in support of Porn on National TV, like, “Porn being legal, Security features with 2 or more pin codes, opting In our Out, depict sex between couples in a loving relationship and sexually empowered women” Porn is smut it does not matter in what form it comes(Just like alcohol whether it is a beer, wine or Sambuca or Tequila it is still booze). Surfing porn on the mobile phone can be done anonymously but bringing porn into the family living room is a different story. Having a child walking in on the parents watching porn in the living room could be quite awkward. It is quite an invasion of families personal lives, just imagine – “Children you can not be in your own family living room over weekends (especially after a busy week for the whole family,when children are to spend some family time) because mommy and daddy is going to watch porn”. Obviously the children would like to know what is going on and will sneak and peak behind the doors and outside widows to see what why they can not go into their own living room. It just an attempt for media to make more money and not worrying about the social implications it will have on the family. In other countries where these channels are legal, it is know that teenage boys are regular viewers of porn on television. Not all the children are in bed by 20h00; especially over weekends, this is a recipe for an unhealthy situation in the family setup.

  2. Brian Schekierka on

    I would much rather watch porn than bombing, killing, maiming, decapitations……..I wonder why a religious organization knows so much about porn channels???? maybe…………….

  3. Greg Mahlknecht on

    >this is a recipe for an unhealthy situation in the family setup

    If you really believe the rubbish you wrote in your post, I think you’re the one with an unhealthy family situation and are projecting it on others.

  4. yip, it’s religious radicals like you (and those before you) that are the reason why in the year 2014 the human race is still stuck on earth.

    I think i’ll watch some porn tonight in your honour! and by the way watching some porn with sexually empowered women may teach you a thing or 2…

  5. I do not see what the case here is. If I am not interested in pornographic material, why do I select it? It would be part of an additional bouquet, I believe. The same as for the previous German bouquet, Indian or Spanish ones available from multichoice. Why would I get an additional subscription if I don’t watch it or a risk of under aged exposure exists in my household ? Availability is key in any business. To supply a service/product is great for everyone, however the decision for purchase is still that of the consumer.

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