The Independent Communications Authority of South Africa (“ICASA”) in April 2013 permitted the Respondent, ODM (trading as STARSAT), to broadcast what is generally referred to as pornographic content on three channels during the watershed period for subscription broadcasters. Subscribers may gain entry to this service by entering pin numbers. On 11 August 2014, an application to set aside this decision of ICASA was heard by the Western Cape Division of the High Court. ICASA’s decision was set aside by the Court on 3 November 2014. An application for leave to appeal was lodged. This application was turned down, however. In spite of letters from the Complainant regarding this matter, ODM continued its service pending the lodging of an appeal to the Supreme Court of Appeal. The appeal, which suspended the order, was however, only lodged by 7 January 2015. The application for leave to appeal was dismissed.
The Complainant lodged a complaint with the BCCSA in terms of the Subscription Code, which prohibits broadcasts on channels which have not been permitted by ICASA. The permission by ICASA was, of course, no longer valid after the Court order.
At the hearing of this matter, the Respondent conceded a contravention of the Code and argued that a reprimand would be an appropriate sanction. It also argued that sufficient extenuating circumstances existed to obviate the need for the BCCSA to impose a fine, which could amount to a maximum of R60 000.
The BCCSA held that, in the circumstances, the maximum fine of R60 000 was not justified – the service having been provided to less than 300 subscribers. However, since the provision of a broadcasting service without the necessary authority was a serious matter, a fine of R25 000 was imposed.