Cape Town -On Digital Media (ODM) gave Icasa the impression that the pornographic channels it wanted to broadcast would show loving, healthy sex between consenting people, the Western Cape High Court heard on Monday.
Darryl Cooke, for the Justice Alliance of SA (Jasa), said a quick search of the schedules of the three adult content channels painted quite a different picture.
He said the Brazzers channel, previously known as Private Spice channel, had shows titled “Girls Behaving Badly”, “Backdoor Bikini MILFs”, “The Secret Lives of Kept Wives”, and “Young Harlots:
Carnal Education”.
“These programmes are promoting infidelity, unsafe sex, and not what was represented to the Independent Communications Authority of SA (Icasa) and the public,” Cooke said.
“The true content of the material wasn't told to Icasa. They acted under a misapprehension and therefore they took irrelevant considerations into account.”
Cooke said representations made on behalf of ODM showed that channel content would be “conventional” sex, contain eye-gazing couples who were loving and in a relationship, and healthy females who were not young or underaged.
In April last year, Icasa granted a licence to ODM (operating as Top TV and later StarSat) to air the porn channels as subscribed packages with age verification and other security features.
Jasa applied to the court to review and set aside Icasa's decision. The matter was consolidated with separate applications to the High Court in Pretoria by Cause for Justice and Doctors for Life.
The respondents include Icasa chairman Stephen Mncube, Icasa, ODM, Top TV business rescue practitioner Petrus van den Steen, and the communications minister.
Cooke also took issue with the assurance by Playboy TV UK that it complied with laws in other countries, when ODM had apparently been aware that this was not the case and that children had been put at risk.
He said an internal body within Icasa had compiled a report about Playboy's conduct and found it had breached rules and been sanctioned by the United Kingdom communications regulator Ofcom last January.
“We have, over a period of six years, repeated breaches. They are a serial offender. We are told in these reports that they are reckless and that they are repeated breachers.”
Cooke said it did not matter that ODM would ultimately be held liable for any breaches in the broadcasting code.
“The child is already devastated by what he is seen. It doesn't help the child that there is a fine down the line.”
Jasa argued that it was incorrect for Icasa to say its hands were tied because there was no law specifically banning the creation and distribution of pornography.
Cooke said Icasa still had the discretion to refuse to authorise a channel, thus balancing the rights to freedom of expression with the rights of children and the need to avoid harm.
Sapa