Significant court victory in battle against TV porn

In what has been described as a “counter cultural victory”, the Western Cape High Court on Monday, November 3 reviewed and set aside the Independent Communications Authority of South Africa’s (ICASA) decision to authorise the broadcasting by StarSat (formerly Top TV) of three pay-to-view pornographic channels on South African television, and remitted the matter to ICASA for reconsideration. 

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This is a great feat for the three organisations who took a brave and determined stand against pornography in South Africa, and for which we as Christians give them great applause and our Heavenly Father great praise. 

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Following the judgment by Judge Bozalek, John Smyth QC of Justice Alliance of South Africa (JASA) commented as follows: “In the area of morality, especially porn and sexual promiscuity, Christians badly needed a win. So many prayed their hearts out for this one — not least our team and our little weekly group on Wednesdays. God has answered! Of course the campaign will continue — the enemy will not go away — but it is a very significant battle. It may even be a watershed. Time will tell, but perhaps the tide is turning. A dear friend phoned me from Durban and said  ‘John, this is so important because it gives us hope’. Yes, it is worth fighting these battles. It may seem that the world has gone belly-up on morality, but ‘the Kingdom of God is still advancing and forceful men take hold of it’!” 

Commenting on behalf of Cause for Justice (CFJ), attorney Ryan Smit said: “We are obviously very satisfied with the outcome of the case and feel that justice has prevailed. The constitutional principle that State action must be procedurally fair, reasonable and lawful has been confirmed. This gives us confidence that there is still a level playing field that applies to all people and groups in South African society. The judgment shows that those who are willing to stand up and fight for what they believe in and actually take action, will see and experience what they hope for.” 

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Echoing the above statements, Doctors for Life (DFL) specifically expressed their gratitude for the valued assistance and support that they have received from so many, including the researchers and specialists in the field of neurology and psychiatry who have courageously come alongside the organisation in the fight against pornography. DFL will be interviewed on SABC’s newsroom channel tomorrow (Friday), between 9-10 am regarding the StartSat pornography channels court Case. The interview can also be watched live on the SABC newsroom YouTube channel. The youtube links can also be found here after the show: Facebook: https://www.facebook.com/sabcnewsroom and Twitter: https://twitter.com/SABCNewsroom

Background facts
In 2011, On Digital Media (Pty) Ltd (ODM) applied to the Independent Communications Authority of South Africa (ICASA) for authorisation to broadcast three pay-to-view pornographic content channels (Playboy TV, Desire TV and Private Spice) on a 24-hour basis. Given ODM’s absence at the public hearing in relation to the application, ICASA refused the application. The struggling ODM is in business rescue and has been looking to pornography to improve its earnings.

In 2012, ODM which was then trading as Top TV, lodged a new application with ICASA for the broadcasting of these pornographic channels daily between 8pm and 5am (the watershed period). Following the application, ICASA placed a notice in the Government Gazette, inviting interested parties to submit representations in respect of the application. A total of about 645 representations were received. Subsequently, notice was given also of a public hearing in Johannesburg. ICASA invited only about 10 organisations who submitted representations, to the hearing. 

In April 2013, ICASA authorised ODM to broadcast the three channels subject to the condition that this could only be done within the watershed period and that certain security measures (namely a double pin code and the availability of the channels only as a separate subscription from ODM’s main subscription service), were to be implemented at all times to safeguard children’s rights. 

The basis for ICASA’s decision was that there was no law of general application prohibiting the production and distribution of adult pornography (as opposed to child pornography) in South Africa. Also, there was no evidence to demonstrate that pornography is a direct cause of gender-based violence in our country. 

The court application
Three separate organisations applied to Court for the reviewing and setting aside of ICASA’s decision, namely Justice Alliance of South Africa (JASA), Cause for Justice (CFJ) and Doctors for Life (DFL) (the Applicants). 

As the nature of the proceedings was that of a review (and not an appeal), the only question that the Court had to decide was whether ICASA had correctly performed its functions, for example, by following the correct procedure and having regard to the relevant laws and considerations –and not whether ICASA had taken the correct decision, as would have been the question on appeal. 

Although the harmful effects of pornography on adults, children and on society in general were traversed in evidence to some extent, the case was therefore not as much about adult pornography itself as about the way in which ICASA arrived at its decision. 

The Applicants challenged the procedural fairness of ICASA’s decision on various grounds including that its notice to the public did not make it clear that ODM’s application was for the broadcasting of pornographic channels; that notice in the Government Gazette only was inadequate; that not enough time was given to the public to make representations; that it was not enough to have a public hearing on one day in one place only; that the special committee tasked with the decision, was not properly comprised and showed bias towards ODM. All these procedural irregularities, the Applicants argued, contributed to an irrational and indefensible decision by ICASA that had for that reason to be reviewed and set aside. 

In addition, the Applicants argued that ICASA made an error of law and failed to take into account relevant considerations in making its decision. In particular, ICASA erred in accepting that there was no law of general application in South Africa that gave it a discretion to refuse the channels.

The findings of the Court
Although the Court agreed with the Applicants that the procedure followed by ICASA in various respects fell far short of adequate, the Court surprisingly did not uphold the Applicants’ challenge to the procedural fairness of ICASA’s decision. Likewise, the Court did not find that there was any bias on the part of ICASA towards ODM.

However, the Court found that ICASA wrongly accepted that there was no law of general application prohibiting the production and distribution of adult pornography in South Africa, i.e. wrongly accepted that it had no discretion to refuse ODM’s application.  According to the Court, section 24A(4) of the Film and Publications Act (which prohibits the broadcasting of any film classified ‘X18’ under certain circumstances) did just that and effectively barred ODM from displaying adult pornography falling within the X18 classification (and accordingly, ICASA from granting ODM authorisation to do so). This point was in fact conceded by ODM at an advanced stage of the proceedings – a concession which the Court described as a volte face (“total change of position”) by ODM, and which ultimately led to a victory for the Applicants in this case. 

The Court accordingly agreed with the Applicants that ICASA had committed an error of law which was so fundamental to its decision, that the decision itself had to be set aside by the Court and remitted to ICASA for reconsideration.The effect of the judgment is that ODM (now trading as StarSat) has to stop broadcasting of the pornographic channels, and that ICASA has to reconsider the application for channels authorisation afresh. 

Possible appeal against the judgment
Following the judgment, ODM has given notice that it will ask for leave to appeal against Judge Bozalek’s decision.The effect is that the Court’s order is suspended, pending the Court’s ruling as to whether ODM has any reasonable prospects of persuading a higher court that it came to the wrong conclusion. Should leave for appeal be granted, it could take a number of months before the matter is finally decided on appeal. 

The Applicants have also advised that it is considering a cross-appeal, on the basis that the Court should (also) have upheld the Applicants’ challenges to the procedure followed by ICASA before coming to the decision to grant ODM’s broadcasting application. 

In the circumstances, we continue to petition God while giving Him thanks for this first, significant victory in the battle against pornography!