Members of the public were sufficiently advised that On Digital Media (ODM) was applying for three pornographic channels, Icasa told the Western Cape High Court on Tuesday.
However, the judge hearing the case compared Icasa’s methods to those used in the 1970s, not in the digital era.
The Independent Communications Authority of SA (Icasa) had put notices in the Government Gazette informing that submissions could be made and that there would be a public hearing, Icasa’s lawyer Paul Kennedy said.
The notices 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.
“If someone is interested and concerned about what broadcasters broadcast, as indeed these parties are, they could and should keep their ears to the ground.”
Kennedy was defending why Icasa granted three licences to ODM (operating as Top TV and later StarSat) last April, a decision under scrutiny by the court after applications by the Justice Alliance of SA, Cause for Justice and Doctors for Life.
Judge Lee Bozalek had asked Kennedy why the government gazette notice in December 2012 did not make any mention of what the channels were going to broadcast, namely porn.
“How can that ever be rational? What is the purpose of this notice? It is to bring to the attention of the public that a matter of potential controversy is the subject of this application,” the judge said.
“If Joe Bloggs has very strong views about the broadcasting of adult material… how would he not know this is an application to put National Geographic on a channel?”
Kennedy conceded that the notice without context was not effective but maintained that it was not Icasa’s responsibility to spell everything out.
“It is not for Icasa to point out to the public that you may be interested in this because it raises x or y or z.”
He said the media coverage of the application was important and had “no doubt” generated the over 600 submissions received by organisations and individuals.
Bozalek said adding a sentence to the notice explaining the channels were for porn would not have been much trouble.
He wondered how efficient it had been for members of the public to travel to Icasa’s library in Johannesburg to obtain a physical copy of the full application.
He compared Icasa’s methods to those used in the 1970s, not in the digital era.
“This is a communications authority ironically. It deals with communications,” he remarked.