Porn channel appeal application denied

An application for leave to appeal a court ruling on the licensing of three porn pay channels was dismissed by the Western Cape High Court on Wednesday.

Judge Lee Bozalek ruled that he correctly ordered that the Independent Communications Authority of SA (Icasa) review its decision last year to license On Digital Media's (ODM) porn channels.

ODM (operating as Top TV and later StarSat) was granted three licences on April 23 last year to broadcast Playboy TV, Desire TV, and Brazzers, subject to conditions.

Last month, Bozalek reviewed Icasa's licensing decision and set it aside after consolidated applications by the Justice Alliance of SA (Jasa), Doctors for Life, and Cause for Justice.

The organisations had argued that Icasa erred in making its decision.

ODM conceded during arguments at the time that it was required by law to register with the Film and Publications board to broadcast adult content.

In its appeal application, ODM argued that Icasa's decision was only invalid insofar as it failed to prohibit it from broadcasting films that had been classified as "X18", in accordance with the Film and Publications Act.

It thus believed that remitting the decision back to Icasa would lead to unnecessary delay, prejudice, and costs, and suggested severance with an order of correction or substitution instead.

Bozalek said on Wednesday it was not up to the court to exercise discretion.

"These are matters which quintessentially lie in the province and expertise of Icasa. For all the reasons cited, they are not appropriately decided by a court," he said.

"The appropriate remedy is remittal and not severance or substitution."

He also did not change his initial ruling that Icasa and ODM pay the applicants' costs.

- SAPA