Parliament must decide on porn: Lawyer

It is up to Parliament to make sure all rights are balanced in considering issues around pornography, the Western Cape High Court heard on Wednesday.

Steven Budlender, for On Digital Media, was arguing why the Independent Communications Authority of SA (Icasa) had little power to refuse legitimate applications to broadcast pornography.

"The notion that a body, even one in the Constitution like Icasa, is to decide what is in the public interest, is anathema to freedom of expression," he said.

He said Parliament was responsible for balancing rights by enacting or amending legislation.

"It has decided pornography is not unlawful. Parliament must make that balance, not Icasa without balance and without power."

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

The Justice Alliance of SA (Jasa), Cause for Justice and Doctors for Life had consolidated their challenges of Icasa's decision and the procedure it used to get to that decision.

These bodies had argued various points since Monday, including that Icasa had the discretion to refuse applications and that children could well be exposed to the porn channels.

Budlender countered that the licences were granted on condition that the channels were offered as separate and verified subscription packages, broadcast during the watershed period of 8pm and 5am, and accessible with a double-pin process.

This made it extremely unlikely that children would access the content.

He said licensed broadcasters such as ODM were exempt from applying to the Films and Publications board to classify their films and were instead subject to regulation by Icasa.

Regardless, ODM had committed to broadcasting X18 content, not content that had previously been refused classification or was XX18.

"Save for refused classifications and XX, there is no absolute ban on pornography. There is only a regulation of pornography."

On Monday, Cause for Justice had argued that the licensing of the channels amounted to a contravention of the Sexual Offences Amendment Act and the Films and Publications Act.

Their advocate Murray Bridgman argued that the extremely resourceful child would be able to bypass the required pin and other security features for the subscription channels.

Earlier on Wednesday, Icasa's lawyer Paul Kennedy said it was conceivable that mistakes could happen.

"We have to accept that children are savvy these days. We have to accept that it is possible that children are able to get around security codes," he said.

"These things do happen but does that mean that nothing can ever be authorised?"

Arguments were extended until Thursday.