South Africa's Supreme Court of Appeal has dismissed a petition by On Digital Media (ODM) for leave to appeal a Western Cape High Court judgment that Icasa re-consider its decision to licence ODM's porn channels.
The court dismissed the petition on
March 17, as there was no reasonable prospect of success.
On December 10 last year, the Western Cape High Court upheld an order to remit a decision on the licensing of the three porn pay channels back to the Independent Communications Authority of
Independent Communications Authority of South Africa (Icasa) will have to reconsider a decision to grant Top TV licences to broadcast three pornography channels.
The Western Cape High Court dismissed On Digital Media's application for leave to
appeal a ruling that the communications authority must revisit its decision.
A previous court case had decided that the TV regulator had not considered a restriction on porn distribution found in laws pertaining to DVD distribution and the
country's film censors.
Judge Lee Bozalek said he was correct in remitting a decision to license On Digital Media's porn channels back to Icasa rather than apply the discretion himself. He said it's not up to the court to sever the good from
the bad with regard to a decision to license three porn channels.
On Digital Media, operating as Top TV, was granted three licences in April last year to broadcast adult content pay channels. In its appeal application, On Digital Media said
remitting the decision back to Icasa would lead to unnecessary delay, prejudice and cost.
On Digital Media (ODM) and StarTimes Media South Africa wants to continue broadcasting hardcore porn to South African satellite viewers and is appealing the ruling from the Western Cape High Court which found the process flawed in which South Africa's
broadcasting regulator approved the porn channels.
It's evident that the pay-TV provider sees pornographic TV channels as part of its plan and will fight to retain its hardcore sex channels which it has been broadcasting since November 2013 as a
separate sex package for R159 per month.
According to court documents ODM and StarTimes Media SA have around 400 subscribers for the sex channels which Icasa approved after the company applied for a second time to broadcast porn following its
first application which was denied.
South Africa's broadcasting regulator, the Independent Communications Authority of South Africa (Icasa) has not yet decided whether it, like ODM and StarTimes Media SA, will be appealing the ruling.
the beginning of the month the Western Cape High Court ordered StarSat to stop broadcasting its pornography TV channels in South Africa after the the morality campaign, Justice Alliance of South Africa (Jasa), Cause for Justice and Doctors for Life took
Icasa and StarSat to court for allowing and broadcasting pornography on television in South Africa.
Icasa admitted to court that the regulator had failed to appoint experts to consider StarSat's porn plan. On Digital Media also failed to register
with the Film and Publications Board (FPB) as a porn distributor.
for leave to appeal a court ruling on the licensing of three porn pay channels will be heard in the Western Cape High Court next month.
The application by On Digital Media (ODM) will be heard on 5 December.
In its appeal application, ODM
argued that Icasa's decision was only invalid insofar as it failed to prohibit ODM from broadcasting films that had been classified as X18 , in accordance with the Film and Publications Act.
There was no reason this aspect of the
decision could not be remedied by means of severance, it argued in the application.
It believed that remitting the decision back to Icasa would lead to unnecessary delay, prejudice and costs.
A morality and religious campaign group calls itself the Justice Alliance of South Africa (JASA).
In 2013 JASA started a legal case opposing the licensing of a satellite package of 3 porn channels by the South African licensing authority ICASA. That
case will now be heard in court on 10th August 2014. Jasa claims that:
It is a step too far to introduce pornography to the family TV, which is usually in the only living room in the home. Inevitably children will be
aware of it, even if parents attempt to prevent them watching. The 8pm watershed period is absurd because teenage children settle down to watch TV at that time after doing their homework.
As advised by counsel, Jasa alleged that
Icasa erred in law in failing to find that the constitutional rights of children were laws of general application, which should have trumped the rights to freedom of expression, Jasa said.
Furthermore, Jasa alleges that Icasa ignored their
obligation. .. to consider the moral and spiritual implications of TV channels... .
An organisation calling itself Cause for Justice has filed papers at the high court in Pretoria asking for a review of a decision by the Independent Communications Authority of South Africa (Icasa) to allow StarSat to offer three pornographic channels.
The organisation claims that in spite of overwhelming public opposition to the On Digital Media's application to broadcast the channels, the authority gave went ahead and gave it the nod anyway.
Cause for Justice says it has served
the application on Icasa, On Digital Media, Icasa chairman Stephen Mncube , On Digital Media business rescue practitioner Peter van den Steen and communications minister Yunus Carrim. It claims Icasa's decision should be set aside because the authority
took irrelevant considerations into account while ignoring relevant ones. It also argues that Icasa committed reviewable errors of law and did not follow a fair administrative process. In addition, the conclusions that Icasa reached were
not rationally connected to the reasons given or to the information before it.
South Africa's satellite service TopTV made a bit of a name for itself by getting permission to broadcast 3 sex channels including hardcore porn.
But the service got in financial troubles and has now effectively been taken over by China's StarTimes TV
conglomerate following a cash bail-out. TopTV is now renamed to StarSat.
StarSat's porn channels are already running although StarTimes are not publicising the fact.
Instead of the three sex channels applied for, and for which South
Africa's broadcasting regulator granted permission, two of the pornographic channels -- Private Spice and Playboy TV -- are already available in a separate sex TV package of R159 per month.
Although no mention is being made of the porno package in
press releases or marketing materials, the package is available to subscribers who call the call centre and request the porno bouquet specifically. It's not yet clear why the third applied for sex channel, Desire TV, is not available, and whether it
would be added later.
On Digital Media is relaunching TopTV as StarSat with the pornographic bouquet of sex channels from December in time for the consumer festive season.
The South African satellite pay-TV operator received permission from the South African broadcasting
regulator to broadcast pornographic TV channels at the end of April 2013 and will now start showing those from December when the TopTV brand is dumped for the new name StarSat.
The Playboy bouquet with an R18 rating supplied by Playboy TV UK /
Benelux Limited in England will run from 20:00 to 05:00 daily with three channels, Playboy TV and the hardcore Desire TV and Private Spice.
In April, the South African TV regulator ICASA announced that it had authorised Top TV to broadcast three adult channels Playboy TV, Desire TV and Private Spice. Programming will include both hardcore and softcore material.
organisation has now published a document explaining the reasoning behind the decision, and explaining why it overturned a previous decision to refuse a licence for the adult package.
Icasa said it is of the considered view that there is no
evidence to demonstrate that pornography is a direct cause of gender-based violence:
After due consideration, the Authority accepts that there is no law of general application prohibiting the production and
distribution of adult pornography in the Republic of South Africa.
The Authority also accepts that there is no conclusive evidence to demonstrate that pornography is the direct cause of gender-based violence in the Republic of
South Africa. Those opposing the applicant's channel authorisation application where not able to provide evidence to demonstrate a conclusive link between pornography and gender-based violence.
The applicant did present evidence
to demonstrate that the distribution of pornography is not indicated as a cause of gender-based violence in the Republic of South Africa.
Icasa said that the objectors who had indicated their opposition to applicant's application have
two forms of recourse:
They may approach Parliament to formulate a law of general application to prohibit the distribution of adult pornography; and
They can monitor applicant's broadcast of the pornographic channels to ascertain whether the applicant is in
compliance with the Code and make complaints to the BCCSA in this regard.
The launch of TopTV's porn channels is being delayed by the business rescue process the satellite pay-TV operator is currently undergoing.
The launch of TopTV's porn channels is being delayed by the business rescue process the satellite pay-TV operator is currently undergoing,
according to a report in the Sunday Times.
The paper quotes Peter van den Steen, On Digital Media's business rescue practitioner, as saying in an update to creditors last week that enacting the rescue plan was not straight-forward, making it was
taking longer than anticipated.
Christian and moralist groups are uniting behind a boycott of TopTV as the company seeks permission to broadcast three porn channels. Family Policy Institute director Errol Naidoo said:
[The] Family Policy Institute
(FPI), in partnership with several major Christian denominations in South Africa, has launched a nation-wide boycott of TopTV, its advertisers, and sponsors.
The Christian church is deeply concerned that the introduction of three
pornographic channels in South Africa will exacerbate the current crisis of rape and violence against vulnerable women and children.
Research overwhelmingly indicates the widespread and easy availability of pornography is harmful
For some reason Naidoo neglected to point out the scale of child abuse initiated by Christian clerics, and the resulting harm to society.
Christian churches that have joined the boycott are the Apostolic Faith
Mission of SA, Assemblies of God of SA, the Baptist Union of SA, the Southern African Catholic Bishops Conference, and Church of England in SA.
The Dutch Reformed Church, the Full Gospel Church of SA, the Methodist Church of Southern Africa, the
Evangelical Alliance of South Africa, and the Association of Vineyard Churches in SA have also committed to the boycott.
On Thursday, the Independent Communications Authority of SA (Icasa) heard an application by TopTV to broadcast the channels.
TopTV subscribers watching a sex channel on its proposed separate porn bouquet will have to stop and re-enter their PIN every 30 minutes.
In its application before the Independent Communications Authority of South Africa (Icasa), TopTV said that
viewers watching porn will have to re-enter their PIN after every 30 minutes as a safeguard against a sex channel being left unattended:
All Playboy channels will be configured with a preset time-out period (eg. 30
minutes) after which the PIN must be re-entered. This prevents the channel being left unattended for longer than the preset period.
TopTV has also said that their prepaid subscribers will not be able to gain access to it's bouquet of
porn channels, and that it will only be made available to contract subscribers.
Eddie Mbalo, the acting CEO of TopTV said:
We acknowledge that there is genuine public concern about the protection of children
from viewing adult TV content.
Even though we have strict mechanisms in place to give parents full control over the access to these channels, as an extra precaution we have made the decision not to broadcast adult material outside
the watershed period, when children are likely to be awake.
TopTV is currently arguing its case before Icasa for authorisation for channels to broadcast soft and hardcore porn in South Africa. TopTV wants to offer three porn channels
- Playboy TV, Desire TV and Private Spice - as a separate porn bouquet and with a rating classification of R18 which comes with its own PIN system.
Can watching a couple of Rihanna videos really turn a girl into a knicker-dropping strumpet? We're experiencing a sexual counterrevolution that encompasses a backlash against women's sexual freedom. By
South Africa's TopTV has filed a new application with the country's TV censor, Independent Communications Authority of South Africa (ICASA), to launch three adult content channels on its pay TV satellite service.
Heather Kennedy, vice
president of marketing at Top TV, confirmed reports that the three channels in question are: Playboy TV, Desire TV, and Private Spice.
TopTV and On Digital Media (ODM) were previously banned from a similar 4 channel lineup after nutter opposition
chimed with influential politicians.
Among the reasons for ICASA's ban were that the right of women to equality and human dignity overrides TopTV's right to freedom of expression, as well as the rights of viewers to receive pornography on
television in the home.
The channel line up has now been modified and is now better set to appeal to women and couples so as to address the concerns of the TV censor. TopTV describes the channels as follows:
Playboy TV: a 24-hour erotic entertainment service starring the world's most beautiful women.
Desire TV: a brand-new, bespoke 24-hour adult service designed to appeal to men, women and couples. The service will showcase sensitive, erotic,
and sensual driven sex scenes. It will only contain content that celebrates women, the human form and the act of lovemaking.
Private Spice: a 24-hour adult service featuring beautiful women and stunning locations that sets the standard of adult
South Afica's TopTV's bid to air TV porn channels was banned in part by the country's TV censor because it deemed women's rights and dignity outweighed the right to freedom of expression.
The Independent Communications Authority of South Africa
(ICASA) released the reasons for its ban:
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 TopTV'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 normalization of violence against women in SA.
In its statement ICASA summarised:
The right of women to equality and human dignity overrides TopTV's right to freedom of expression, as well as the rights of viewers to receive pornography on television in the home.
TopTV's failure to take ICASA's public consultation process
seriously damaged its application.
ICASA sees no reason to expand access to pornography given government's restrictions on the content through the Film and Publications Act.
Satellite pay-TV broadcaster TopTV is now seeking legal advice before deciding on their next move.
South Africa's Independent Communications Authority will take legal action against TopTV should the pay-TV broadcaster continue with its plan to launch three porn television channels within the next few weeks.
On Digital Media, the company that
owns TopTV, said last month it would go ahead with the launch of the channels early this month despite Icasa's objections.
It argued that the TV censor had not responded to its application in the required three months and TopTV was therefore
legally entitled to go ahead.
However, Icasa last week maintained that it was illegal for TopTV to proceed with the launch until the regulator had finalised the application process.
If TopTV goes ahead with the launch we will have no
option but to obtain an interdict to stop them. We are waiting for their response to our queries, Icasa spokesman Paseka Maleka said. He added a public hearing on the issue would be held within the next two weeks. Icasa would rule on whether or not
it would grant TopTV's application for the three new channels by the end of the month.
Update: Court prevents porn starting before the TV censor has finished deliberating
The South Gauteng High Court has granted the Independent Communications Authority of South Africa an urgent interdict to stop a satellite TV operator rom going ahead with its proposed porn channels. The company must now wait on the deliberation by the TV censor.
TopTV wants to introduce a standalone porn package of channels Adult XXX, Private Spice and Playboy Europe.
The TV censor's public hearings into the licence application by On-Digital Media, owner of Top TV, have now begun in Sandton,
Johannesburg, where the year-old operator was not represented despite being invited to respond and make presentations.
The misleadingly named Freedom of Expression Institute, African Christian Democratic Party and the Film and Publication Board
have all opposed the launch.
Freedom of expression is not a pre-eminent right, and especially not when it infringes on children's rights to be protected from harm, spouted Pearl Kupe, on behalf of the Christian Action Network: Putting in
pin-blocking functions presents very little challenge to the increasingly techno-savvy generation, and I know this being a mother.
The African Christian Democratic Party said it was impossible to build a strong nation with dysfunctional
families , and producers and distributors of pornography had shown contempt for family values .
Freedom of Expression Institute's executive director, Elston Seppie, said the right to freedom of expression was about balance, ...BUT...
the right of children, women and family values should take precedence.
TopTV has lost its bid to provide South Africa with its first-ever paid adult satellite programming.
South Africa's TV censor, the Independent
Communications Authority of South Africa (ICASA) has refused to allow the company to broadcast softcore Playboy Europe , and hardcore Private Spice and Adult XXX channels.
ICASA spokesperson, Paseka Maleka said the censor
would release the reasons for the denial wihtin the next 30 days.
In a letter to Reuters, ICASA said, We advise that the Council of the Authority ... decided, after careful consideration, to refuse On Digital Media (Pty) Ltd's application for
the authorization of (the proposed) video channels.
New player in South Africa's pay-TV market, TopTV, has announced that it had made an application to the Independent Communications Authority of SA (Icasa) for permission to launch three adult content channels.
The latest bid to get porn on to
South African television screens follows leading pay-TV broadcaster MultiChoice who some while ago, decided to can its foray into adult TV after widespread objections from the public.
Icasa spokesman Paseka Maleka said depending on the nature of
the submissions, it may hold public hearings before it decides whether to give TopTV the go-ahead. Maleka said such a public hearing would most likely be held next month , but could not say when the process would be finalised.
TopTV last week
announced its intention to launch porn channels, while distancing itself from a company called African Satellite Installations, which had indicated that French porn channel PSatTV would soon be available in SA via the TopTV satellite.
holding company, On-Digital Media , said the porn channels would be separate from its bouquets and would carry a strictly enforced adult restriction. They would only be accessible as a secure, encrypted and separate subscription package on the pay-TV
platform. Potential subscribers would need to provide proof that they were over the age of 18, and viewing of the channels would require a unique, four-digit PIN code.
A spokesman said content for all three channels would be provided by Playboy
TV, with one being a soft porn channel and the other two having more raunchy content. It would cost R199 a month.
Some Christian organisations plan to boycott TopTV after it announced it would launch 24-hour pornography channels next year, said the Family Policy Institute.
The institute's director Errol Naidoo said:
Christian denominations and church affiliations support the view that the broadcasting of hardcore pornography on television degrades and objectifies women [strange, this is done so much more effectively by some religions] and exposes children to harmful
Millions of Christians will be encouraged to join the mass boycott of TopTV by not paying their subscription fees and cancelling their contracts with the pay channel.
TopTV's advertisers and sponsors
would also be targeted by the boycott, said Naidoo.
About six Christian organisations have affiliated themselves with the boycott, including the Evangelical Alliance of South Africa and the Methodist Church of South Africa.
Interesting news from South Africa over the promise of the country's first hardcore satellite porn channels.
Porn Satellite Television (PSat) promises 24/7 hardcore adult television and says it will launch this January. The channel will be
broadcast on the Astra 4A satellite, which is also utilized by the mainstream channel, TopTV.
As a separate service, PSat subscribers will have to pay R99 a month for special equipment needed to access the channel.
According to iAfrica.com,
PSat originated in France and is broadcast from outside of South Africa.
There was previously there was a mainstream service suggesting that it could branch into porn, but the authorities were not having any of it, and the idea stayed on the
drawing board. Perhaps this new idea has more of a 'Red Hit Dutch' feel to the service.
Update: You can't broadcast porn...we want to do that
It did not take long for TopTV to express its opposition to the planned rollout of a 24/7 porn channel on the same Astra 4A satellite from which it broadcasts to South African subscribers.
TopTV is claiming that the PSat service is
illegal because it has not received permission to broadcast porn from South Africa's TV censor, the Independent Communications Authority of South Africa (ICASA). TopTV said it is considering a lawsuit based on the alleged illegality of the planned
January launch. An PSat spokesperson, John Solomon, countered that TopTv does not have grounds for a lawsuit because PSat, which is an already existing French channel that wants to expand into South Africa, does not need to get permission from ICASA.
An ICASA spokesperson concurred that Solomon needs to get additional approval before its decoders can be distributed to the public.
But TopTV may have another reason for objecting to TopTV. According to iol.ca.za, the network has itself applied
to ICASA for permission to launch three Playboy subscription channels to its lineu
The TopTv application has already been publicly opposed by the country's censorship board, the Film and Production Board, whose spokesperson, Mlimandlela Ndamase,
said, We definitely will oppose the application in a manner similar to the way we did with MultiChoice when they wanted to launch a 24-hour pornography channel.
The possibility of MultiChoice broadcasting pornography has been laid to rest.
The company has decided against broadcasting pornography and the possibility of new sex channels on DStv's satellite service.
Since the end of last month,
several nutter groups have had predictably vehement reactions against the idea.
MultiChoice has announced that it had studied research data compiled by means of a subscriber survey to determine how viewers feel about adult content on pay TV
channels. According to a statement, the research showed that a significant percentage of subscribers are opposed to adult channels, while some don't mind, and another significant percentage are in favour .
Nolo Letele, MultiChoice chief
executive, said it's a pity that people interpreted the research as if the decision had already been made. According to him, such research often includes questions about content which has been requested by subscribers, or channels which are popular
abroad: The survey three weeks ago focussed on adult content since our industry will soon be facing competition in South Africa.
DStv, the South African satellite pay-TV is considering broadcasting pornography in one if its channels or creating a new channel, Die Burger newspaper reports.
The newspaper reports that MultiChoice has been immersed with requests for adult
entertainment on DStv.
Jackie Rakitla, general manager of corporate affairs at MultiChoice, is quoted as saying: At this stage we're merely doing research to determine the extent of interest in adult content, and we're looking at the
feasibility of implementing such a service.
MultiChoice is looking different broadcasting options, such as the broadcasting of mixed pornography - hardcore porn between 21:00 and 05:00 and soft porn between 05:00 and 21:00 – or hardcore
porn 24 hours per day, or soft porn 24 hours per day on DStv.
If DSTV went ahead with plans for a channel featuring pornographic content, it would be like pouring fuel on the fires of sexual abuse and exploitation , the Christian Action Network have claimed.
CAN international coordinator Taryn Hodgson
said in a statement that considering the high incidents of rape, child abuse and sexual violence against women, it was unacceptable for DSTV to be be considering a porn channel.
Should DSTV introduce such a channel they would be supporting
those that exploit, objectify and degrade women, she said: Porn violates women's constitutional rights to dignity and equality.
CAN has urged its affiliates, who are DSTV subscribers, to fill in the channel's online survey on the issue.
Should DSTV go ahead with such a channel, the Christian Action Network will urge its affiliates to cancel their DSTV subscriptions, Hodgson said.