Satellite TV broadcaster MultiChoice has attacked media reports that it was broadcasting unlawfully and adds that piracy is not an issue for the group.
Yesterday, the media reported on a Cape High Court judgment that let a pirate viewer off the hook after being prosecuted by the state in terms of the Broadcasting Act of 1999. The findings implied that MultiChoice was broadcasting without a licence as it only has permission from the Independent Broadcasting Authority of SA to offer its subscription satellite services.
A statement issued by MultiChoice says that until 1999 it was not required to hold a licence, because satellite broadcasting was not regulated. It says the company has now complied with the requirements and timeframes of the Broadcasting Act of 1999 and the subsequent Broadcasting Amendment Act of 2003.
"The articles which appear in a number of newspapers on 26 June 2003 are misleading, factually wrong and sensational. They are likely to cause substantial financial loss and embarrassment for MultiChoice, a company which has at all material times been operating legally under the relevant broadcasting legislation," the statement says.
However, the confusion that has been generated by the judgment highlights the legal minefield that makes up SA broadcasting regulation.
Steven Ferguson of law firm Nicci-Ferguson says: "The two loopholes as I see it were: MultiChoice did not have a valid licence in 2001 when the defendant was charged and therefore could not enjoy the protection afforded to a licensee in terms of section 66 (prosecution of pirate viewing) of the Independent Broadcasting Act.
"And the permission that has now been granted to them was given under section four of the Broadcasting Act, as amended, which does not have any criminal provisions to prosecute such piracy."
Ferguson says the Broadcasting Act of 1999 (BA) deals predominantly with governing the state-owned SA Broadcasting Corporation, whereas the Independent Broadcasting Authority (IBA) Act deals with other parties and includes satellite broadcasting services. The new Broadcasting Amendment Act 64 of 2002 (assented to on 29 January 2003) makes certain amendments to both Acts.
"The important provision in the 2002 Act is the addition of section 4(5) to the 1999 BA Act. This new section empowers ICASA [the Independent Communications Authority of SA] to give 'interim consent` to certain parties to commence broadcasting pending the outcome of their application for the relevant licence. This appears to be the interim measure that the state tried to rely on in their argument," he says.
What the judges say
According to the findings of the Cape High Court: "To have the 'necessary permission to continue its activities` is conceptually, legally different from having a licence. Such permission would not be subject to any conditions... Had the legislature intended to equate the position of such an application with that of a licence-holder, then it would have been easy for it to say so."
Ferguson says: "The significance of this is that the BA Act does not have a corresponding provision to section 66 of the IBA Act. Section 66 makes it an offence to use or be in possession of any apparatus which allows a person to view a satellite broadcast without authorisation from the licensee."
The MultiChoice statement says it has been operating legally under section four of the Broadcasting Act as amended and as confirmed by ICASA.
"MultiChoice would like to state categorically that neither the judgment referred to in these articles nor any other court in SA has ever held MultiChoice to be broadcasting unlawfully," the company statement says.
Piracy not a problem
MultiChoice spokesman Lebogang Hashatse says pirate viewers are not a problem for the company and that it has the issue under control.
"I am not aware of any pending prosecutions against pirate viewers at the moment," he says.
Hashatse says that even if MultiChoice was not afforded any protection in terms of the Broadcasting Act, "companies were protected as piracy was generally considered an illegal act".
Ferguson says people using smart card readers/writers to gain illegal access to MultiChoice`s services could technically be prosecuted in terms of the Electronic Communications and Transactions (ECT) Act.
"In terms of subsections three and four of the ECT Act, persons who use (or sell, offer, etc) any device to circumvent security measures designed to protect data (such as the measures employed by MultiChoice in their smart cards) will be guilty of an offence," Ferguson says.
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