Cape Town - The Western Cape High Court on Thursday reserved judgment on whether the decision to license three porn pay channels should be reviewed.
The Justice Alliance of SA (Jasa), Cause for Justice, and Doctors for Life had been arguing since Monday on why the Independent Communications Authority (Icasa) erred in licensing the channels.
On Digital Media (operating as Top TV and later StarSat) was granted three licences last April to broadcast Playboy TV, Desire TV, and Brazzers, subject to conditions.
Icasa's lawyer Paul Kennedy had argued that the public had adequate notice about written submissions and the public hearing in the Government Gazette.
He said this should be taken in context with Icasa press releases, the subsequent media coverage, and the fact that the public knew ODM had previously tried to apply for the channels.
The applicants had taken issue with the fact that there was only one hearing and that its format had not been fair.
In addition, Jasa argued that ODM had not been truthful to Icasa in disclosing what content would be on the channel.
Jasa lawyer Darryl Cooke said he had looked at the names of the programmes offered by the channels overseas and concluded they were promoting infidelity and unsafe sex.
“The true content of the material wasn't told to Icasa. They acted under a misapprehension and therefore they took irrelevant considerations into account”.
ODM lawyer Steven Budlender said their expert's comments about channel content at the Icasa public hearing was clearly taken out of context.
He said sexologist Marlene Wasserman, known as Dr Eve, had stated the content was not violent and that she looked for things like eye-gazing and consent during sex.
“All these debates about content were never about whether it was couples or threesomes or infidelity. The debate was about whether it was violent,” he argued.
Budlender argued that it was not a crime to distribute pornography on a secure channel.
He said it was for the Broadcasting Complaints Commission of SA, not Icasa, to deal with complaints about content.
It was also up to Parliament to balance the rights of all by enacting or amending the relevant legislation around pornography.
Cooke countered that 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.
It 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