The Supreme Court of Appeal (SCA) has clarified the technical encryption option embedded in the BDM policy
The Department of Communications (DoC) has noted the decision of the Supreme Court of Appeal (SCA), delivered on 31 May 2016, regarding the matter between ETV vs the Minister of Communications.
The decision of SCA has clarified the position with regards to the inclusion of an encryption clause in the 2015 amendments to the Broadcasting Digital Migration Policy as approved by Cabinet. This policy has enjoyed industry-wide deliberations first being published in 2008, amended in 2012 and 2015.
The department has further noted that the decision of the North Gauteng High Court which was in favour of the Minister has been overturned. However, the SCA did not order the reversal of the digital migration process. What the SCA did is to clarify a technicality which was embedded in the 2015 amended policy.
It is not the intention of the Minister to prohibit other broadcasters who may want to encrypt their signal in order to service their customers. The decision to encrypt any signal to provide pay television services still remains a commercial strategy option of individual broadcasters. This is so because the Digital Terrestrial Television (DTT) Set-Top-Box (STB) standard published by the South African Bureau of Standards requires that “manufacturers can obtain the security requirements from the free-to-air individual broadcasting service licensees in South Africa”.
This is further confirmed by clause 5.1.2(C) of the 2015 amendments which made a provision indicating that “Depending on the kind of broadcasting service broadcasters may want to provide to their customers, individual broadcasters may at their own cost make decisions regarding encryption of content”.
This does not translate now into government having to acquire the systems to encrypt the signal nor does government intend determining broadcaster’s route to encrypted services. This remains the preserve of broadcasters as determined by their respective market and technology strategies as has been the position of government.
It is therefore incorrect to assert as alleged in the media that the Minister proceeded with implementation of the policy despite a pending case. The North Gauteng High Court decision remained valid and entirely in favour of the Minister until the SCA invalidated clause 5.1.2(B) (a).
The department wishes to reiterate its commitment to work with all key role players to ensure that the Broadcasting Digital Migration process is successfully implemented. This will ensure that the country is able to quickly release the much needed spectrum currently occupied by broadcasters to enable the provision of broadband services to the majority of the population, thus ensuring the competitiveness of the country.
The department is of the firm view that DTT has the potential to radically transform the value chain of the broadcasting and telecommunications systems, thereby creating a new industry trajectory that will assist in addressing the triple challenge of poverty, unemployment and inequality.
Enquiries:
Mishack Molakeng
Cell: 082 469 3997
