The Independent Communications Authority of SA (Icasa) has no right under the country’s constitution to block pay-TV operator TopTV from launching adult channels and the fact that it has done so is setting a “terrible precedent” that will erode the freedoms that South Africans fought for under apartheid.

That’s the view of TopTV chairman and acting CEO Eddie Mbalo, who tells TechCentral in an exclusive interview that all right-minded South Africans should fight what he sees as a dangerous slide back into the censorship that was prevalent under the National Party government.

Last month, Icasa said it had refused permission for TopTV to broadcast three sexually explicit channels — Playboy Europe, Private Spice and Adult XXX — promising to furnish its reasons for declining the application later. Icasa has said it will explain its decision before the end of February.

“I come from a background where I was involved in the struggle in the media to allow South Africans access to information,” Mbalo says. “I will join every campaign to stop Icasa from playing Big Brother on us.”

He says there is a much bigger issue at play than TopTV simply not being given the right to broadcast the channels. “I’m surprised the media, which is so articulate and very strong around the so-called secrecy bill, has allowed Icasa to determine what South Africans are able to see and not see. It smacks of going back to the past.”

He adds: “Our struggle was about freedom, it was about choice, it was about South Africans having the right to determine what is good for them or not. It’s going to set a terrible precedent if Icasa is allowed to get away with it.”

Mbalo says not even the Film & Publications Board is able to censor adult content, but is there simply to classify and determine what sort of material should not be accessible to children of certain ages. “There’s a constitutional matter here. There’s a human rights issue here,” he says. “Whether TopTV pursues a Playboy channel or not is irrelevant. There is a bigger issue here for South Africans to take up — whether one institution of state can play the role of censor and what South Africans have a right to see or not to see.”

He adds that Playboy TV is a legitimate television channel that is broadcast in countries around the world. “But our regulator feels South Africans are not adult enough to choose, even when they’re told how kids will be protected [using our technology].”

TopTV, he says, had no plans to offer the channels on a free-to-air basis, and the necessary controls were in place to ensure parents could control their children’s access to the material. “E.tv has been broadcasting this stuff on free-to-air late at night, without controls. We also know DStv broadcasts adult content.”

Icasa’s decision not to allow TopTV to launch the channels means SA is in danger of “going back to the past, where the state, because of its own beliefs, or the beliefs of individuals in that state, could determine what South Africans could see”.

“It would be a terrible injustice if it were allowed to happen.”

Mbalo says he’s not sure yet if TopTV will take Icasa to court as a decision must still be made in consultation with the company’s board of directors and shareholders. But he says he has no doubt the decision by the regulator is unconstitutional.

A decision on whether to take the matter further will only be taken once Icasa has furnished the reasons for its decision. — Duncan McLeod, TechCentral