What new regulations mean for Netflix, DStv and internet pirates

The Independent Communications Authority of South Africa (Icasa) has officially begun public hearings into regulating TV subscription services in South Africa.

While the hearings are aimed at breaking down monopolies in the arena (including sports and other programming rights), most of the discussion has instead focused on internet streaming – particularly the rise of Netflix.

“Multichoice had not had to deal with much competition in previous years, but since streaming content became easily available it claims that it has lost over 100,000 subscriptions to ‘unregulated’ streaming services such as Netflix,” explains Verlie Oosthuizen, head of Social Media Law at Shepstone Wylie.

“None of the ‘Over the Top’ (OTT) streaming video content providers are regulated in the same manner that subscription TV services such as DSTV are. They do not formally fall under the authority of Icasa or the Film and Publications Board (FPB).

“This, Multichoice argues, should change in the future so that all pay TV services must comply with the same regulations. The minister of communications agrees, and has introduced a White Paper to deal with streaming content.”

Speaking in October 2017, then-communications minister Ayanda Dlodlo said that the White Paper would revise the Broadcasting Act to respond to the new challenges in the internet-era.

According to the minister, the white paper will update the broadcasting policy to:

• Create a fairer environment for traditional broadcasters, video-on-demand providers and video-sharing platforms;
• Promote South African content;
• Promote diversity of voices in the media, nation building and social cohesion;
• Propose approaches and strategies to deal with the broadcasting spectrum over the next years;
• Propose new approaches to protect children, minors, and the vulnerable;
• Limit availability and ability to tackle on/off line harmful material and hate speech better.

Current regulations

Oosthuizen explained that, currently, it is not generally illegal or unlawful to watch streaming content online unless you are doing it in a manner which is fraudulent or if the content is pirated.

“You will not be criminally liable if you are using virtual private networks (VPNs); however, you may have your subscription terminated by Netflix if you try to circumvent their regional geoblocking by disguising your IP address,” she said.

She added that if you download pirated content you may not be criminally liable, but you could be liable for damages to the copyright owner. In contrast, if you upload pirated material or distribute it, then you could be criminally liable in terms of the Copyright Act of 1978, she said.

“There have been cases where people distributing South African films over the internet illegally have been arrested and charged in terms of the Copyright Act. There is the South African Federation Against Copyright Theft (Safact) which is an NGO that protects the intellectual property rights of its members.

“They report criminal activity and copyright infringements and take civil action against pirates,” she said.

“Viewing options have come a long way since the TV was introduced to South Africa in the 1970s (much later than the rest of the world). The regulatory system has not caught up just yet but they are working on it furiously.”

Read: New complaint questions whether DStv’s ‘hidden costs’ should be advertised with decoders