Why ICASA turned down TopTV’s porn plans

Women’s rights to equality and dignity are more important than TopTV’s rights to freedom of expression, or viewers’ rights to watch pornography at home, says the Independent Communications Authority of South Africa (ICASA) in a long-awaited explanation of its decision to block the broadcaster’s plans to launch three porn channels.

In a media release published today the licensing authority also cites TopTV’s failure to participate in ICASA’s public consultation process, as well as existing limitations on the distribution of pornography in terms of the Film and Publications Act as factors in its decision, on January 20, to reject the broadcasters porn channels application.

 ICASA says that In making its decision, it considered the submissions made by stakeholders and members of the public in light of the South African Constitution and relevant broadcasting laws. ICASA also considered the written response of TopTV to those stakeholder viewpoints.

 After its application was turned down TopTV said it would consider its options after it had an opportunity to study ICASA’s reasons for its ruling.

“Unconstitutional”
In recent interviews TopTV acting CEO Eddie Mbalo, has accused Icasa of eroding the freedoms that South Africans had fought for under apartheid and called its ruling  “unconstitutional”. He has also said that TopTV is still keen to screen “adult entertainment” programmes.  

 The full ICASA media release reads as follows:

 The Independent Communications Authority of South Africa (ICASA) has on 20 January 2012 refused to grant On Digital Media’s application for the authorisation of three pornographic channels on its TOP TV platform.

 In making its decision, ICASA considered the submissions made by stakeholders and members of the public in light of the South African Constitution and relevant broadcasting laws. ICASA also considered the written response of TOP TV to those stakeholder viewpoints. The key point of deliberation revolved around how to balance the right of TOP TV in terms of its right to freedom of expression with the right of women to equality and human dignity.

Pornography is sometimes defined as any material that is sexually explicit or as an obscene form of speech. ICASA views pornography not as sexually explicit material per se or as obscene forms of speech but as that subset of sexually explicit material which is objectionable because it harms women and children.

Violence against women
Pornography is sexually explicit material that depicts women’s subordination in such a way as to endorse that subordination. In other words, not all sexually explicit material is pornographic. ICASA views pornography as a systematic practice of sexual discrimination that violates women’s right to equality and human dignity. South Africa is experiencing very high levels of violence against women, perpetrated in the main by men. Recent research has shown that South Africa has some of the highest levels of violence against women worldwide. In this regard, the Government has actively engaged the issue of violence against women through its support for the `16 days of Activism for No Violence against Women and Children’ Campaign.

 ICASA is not saying that there is a direct causal relationship between the consumption of pornography and violent sexual crimes against women. The empirical evidence for this is not conclusive and it is certainly not so that all men who consume pornography will suddenly transform into rapists. However, consumption of pornography may contribute to the incidence of rape by making it more likely that those, who are already inclined to rape may feel validated by seeing women as sexual objects, to actually rape, thereby increasing the overall incidence of rape. Of course, pornography may not be the only contributing factor to violent sexual crime.

 The factors contributing to violence against women are likely to be numerous and connected in complex ways and may include alcohol abuse, `macho values’ or childhood events and circumstances. But the mere fact that there may be other factors influencing sexual violence against women does not show that consumption of pornography cannot also be able to play a role. Consumption of pornography may, on its own, be neither necessary nor sufficient for violent sexual crime (or for sexist attitudes and behaviour more generally); yet it might still contribute to violent sexual crime if it validates social norms of sexual abuse.

 Reasons
ICASA refused On Digital Media (Pty) Ltd.’s application to broadcast three pornographic channels for these reasons:

1.     On the issue of balancing the rights of women to equality and human dignity with the right of freedom of expression, ICASA is of the view that the right of women to equality and human dignity overrides TOP TV’s right to freedom of expression, as well as the rights of viewers to receive pornography on television in the home.  ICASA holds this view because it regards the consumption of pornography as one contributing factor, amongst others, to the normalisation of violence against women in South Africa.

2.     TOP TV’s failure to take ICASA’s public consultation process seriously fatally damaged its application in that TOP TV:

a)     Misconstrued the objections to its application as moral or religious grounds rather than as serious stakeholder  engagement on constitutional and legal grounds;

b)     Failed to participate in the public hearing in order to expand on its application and take questions from ICASA and the public or to rebut stakeholder views opposed to its application.

3.     ICASA notes that the South African government has already limited citizens’ right to freedom of expression with regard to the consumption of pornography by law, through the Film and Publications Act, which places limits on how and where pornography may be distributed. Accordingly, ICASA sees no reason to expand access to pornography on the airwaves into the home. 

 The full text of the reasons is available on ICASA’s website: www.icasa.org.za