PRESENTATION BY e TO PARLIAMENT’S PORTFOLIO COMMITTEE ON HOME AFFAIRS 14 December 2005

1. PRESENTATION BY e.tv TO PARLIAMENT’S PORTFOLIO COMMITTEE ON HOME AFFAIRS 14 December 2005

2. INTRODUCTION • e.tv holds a commercial free-to-air television licence issued by ICASA in 1998 • The channel was launched in October 1998 • It operates in accordance with licence conditions issued by ICASA and its compliance with its licence conditions is evaluated on an annual basis • e.tv is currently South Africa’s second largest television station with a 22% market share

3. INTRODUCTION • e.tv understands and shares the concerns of the committee with regard to child & unregulated pornography • All content broadcast by e.tv complies with all relevant legislation, regulations and the BCCSA’s Code of Conduct • e.tv is uncertain as to the purpose of this hearing • e.tv is concerned about the calls and letters received by the committee regarding pornography on television as it has not been provided with any information in this regard – accordingly it cannot deal with the specifics of these complaints • However, e.tv is always willing to assist Parliament in its deliberations & we have therefore prepared the following presentation

4. HEARINGS ON 15 NOVEMBER • e.tv received unwarranted negative publicity regarding its non-attendance at the hearings on 15 November 2005 • e.tv was accused of deliberately failing to attend these hearings having been given timely notice • In fact, e.tv was notified of the hearing on 14 November at midday – e.tv is aware that the SABC received notice at least two weeks prior to the hearing • As a result of the short notice, e.tv advised the committee on 14 November that it was unable to attend but that it was willing to attend any hearing on being given reasonable notice • Statements were made on national radio and television that e.tv had received three weeks notice – this is untrue

5. HEARINGS ON 15 NOVEMBER • Adverse inferences were made on behalf of the committee as to why e.tv was not present – these included e.tv’s alleged role in the spread of pornography & the reasons for the absence of its CEO • These statements were circulated in the media – they are untrue and defamatory of e.tv • e.tv takes these statements seriously • Letters were written to the chairperson of the committee concerning the untrue and defamatory statements requesting a retraction and a copy of the recording of the proceedings • There has been no response to these letters • e.tv reserves its rights as a result of these statements in the event that appropriate retractions and apologies are not forthcoming

6. BCCSA • Section 56(2) of the Independent Broadcasting Authority Act (“the IBA Act”) provides for self-regulation by broadcasters provided that: • the self-regulatory body enforces a code of conduct by means of its own disciplinary mechanisms; and, • such code of conduct and disciplinary mechanisms are acceptable to the Authority • The Broadcasting Complaints Commission of South Africa has been recognised by ICASA in terms of this section. • The new Electronic Communications Bill contains a similar provision

7. BCCSA • e.tv is a member of the BCCSA and is therefore governed by its Code of Conduct • The BCCSA Code of Conduct is almost identical to the Code of Conduct in the IBA Act • The BCCSA has recognised that issues relating to taste, decency and public morality are subjective • The Code envisages and permits the broadcasting of material intended for adults only including sexually explicit material under certain conditions • Because of this, the Code emphasises viewer information & protection of children, as opposed to the prohibition of material which may be regarded by some as offensive

8. BCCSA • In terms of the Code, broadcasters are required to ensure that they: • advise consumers about programme content in order that viewers may make an informed choice about what to watch • schedule material unsuitable for children after the watershed (9pm) • broadcast material which is more adult with the advance of the watershed period • carry adequate warnings on adult material to enable parents to determine what their children should view

9. FREEDOM OF EXPRESSION • The broadcast of adult content in terms of the BCCSA Code is guided by the constitutional protection afforded to freedom of expression contained in section 16 of the Constitution - this freedom includes the freedom to receive or impart information or ideas • The Code recognises that freedom of expression lies at the foundation of a democratic South Africa • The freedom to broadcast any material and for viewers to view such material is therefore guaranteed subject to such material not contravening the provisions of the Constitution, the BCCSA Code or any other law • The material broadcast by e.tv meets such requirements

10. ADULT CONTENT ON e.tv • e.tv broadcasts adult content after 11pm (usually after midnight) on Friday and Saturday nights • This content is generally known as erotica and does not constitute either XX or X18 material – it is certainly not material which is prohibited in terms of s28 of the BCCSA Code of Conduct • The content is preceded by a special warning and is classified 18S • Promos for these films are not shown before 11pm • Parental supervision of children’s viewing choices is expected after 9pm • In considering complaints, the BCCSA has found that the content broadcast by e.tv does not contravene the Code of Conduct

11. STANDARD OF TOLERANCE • The BCCSA held, in 2002, as follows: • “The legal test in determining whether material can be categorised as offensive to public morals, is not what is offensive to an individual or whether members of a community themselves might be offended by seeing it, but what the community will tolerate, and what members of such community would not abide other members seeing because it would be beyond the contemporary South African standard of tolerance to allow them to see it – it is the standard of tolerance, not taste that is relevant.”

12. STANDARD OF TOLERANCE • In applying this test to e.tv’s late night erotica programmes, the Commission made the following findings: • that adult erotica is found not to be indecent, or obscene, or harmful or offensive to public morals as it has not been shown that these films are beyond the contemporary South African standard of tolerance to be allowed to be seen or that members of the community would not abide other members of the community viewing such films • that no factual justification had been established proving that the limitation of the broadcaster’s freedom of expression is permissible in terms of the limitation clause i.e. section 36 of the Constitution • that the broadcaster was lawfully entitled to broadcast the feature films and that such broadcast did not violate the broadcasting code

13. ADS FOR MOBILE ADULT CONTENT • During the late night films, advertisements for mobile adult content services are flighted • e.tv has developed an internal policy with regard to the acceptance and flighting of such advertisements: • Must not be flighted earlier than 11pm • Programme in which the ads are scheduled should be for adults only • Ads should contain no innuendo of coercion or violation of women’s rights of equality and dignity and should not be degrading to women • WASPA is developing a code of conduct which intends to regulate the form and content of mobile adult content – e.tv will abide by this policy • These advertisements are also subject to the Advertising Standards Authority Code of Conduct

14. CONCLUSION • e.tv has consistently participated in debates on this issue: • e.tv is a member of the National Association of Broadcasters (NAB) • The NAB made submissions to this Committee in November 2003 on the Films & Publications Amendment Bill on behalf of e.tv and other broadcasters • e.tv has attended and contributed to the ICASA round table on adult content which dealt with broadcast content and televised advertisements for mobile adult content • Proposals arising from the round table will be implemented by broadcasters over the next period and e.tv will participate in this process • e.tv intends to continue to engage in discussions on this issue with the relevant public bodies