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The SABC’s licensing proposal involving Netflix, MultiChoice and DStv has proved divisive amongst some South Africans – however might additionally run into authorized hurdles, say specialists.
In October, deputy minister of Communications, Pinky Kekana put ahead quite a few proposed legislative measures aimed toward enhancing the SABC’s income shortfalls.
The proposed rules embrace:
- Requiring pay-TV service suppliers like MultiChoice (DStv) and Netflix to gather TV licences on behalf of the general public broadcaster;
- Increasing the vary of units on which licence charges can be payable to incorporate, inter alia, smartphones and tablets, and never solely typical tv units.
Nevertheless, these measures might run into some authorized challenges, says Ian Jacobsberg, director for Company, Mergers & Acquisitions, and Competitors at Tabacks Attorneys.
The obligation on members of the general public to acquire and pay for tv licences arises from part 27 of the Broadcasting Act, 4 of 1999.
“By way of the part, the legal responsibility to pay a licence charge arises from proudly owning and utilizing a TV set – in different phrases, it’s purely associated to the {hardware} – and never what program content material you’re accessing,” Jacobsberg mentioned.
“A TV set proprietor who’s subscribed to a pay-TV channel has the identical obligation to acquire and pay for a TV licence as one who solely watches the SABC’s programmes.”
Jacobsberg mentioned that when it comes to part 27(1)(b), sellers will not be allowed to promote TV units to anybody who just isn’t in possession of a licence and are due to this fact successfully made a part of the enforcement mechanism.
“It could be simple sufficient to introduce the same regulation obliging a subscription service supplier to make sure that a possible subscriber has a licence earlier than making the service obtainable,” he mentioned.
“The harder difficulty arises if the SABC is definitely going to try to compel the service suppliers to gather the licence charge and pay it over to the SABC.”
Jacobsberg mentioned that the truth of the way in which by which web providers are usually supplied, some challenges come up as to how the proposals are to be carried out in observe:
Month-to-month
Within the case of many, if not most, subscription providers, the contracts between the subscriber and the service supplier run from month to month, mentioned Jacobsberg
Will a service supplier have to verify as soon as a month that each subscriber has a licence ? Or will they should maintain a file of how lengthy every subscriber’s TV licence has left to run when their subscriptions begin and be sure that it’s renewed previous to expiry, earlier than persevering with to offer the subscription service?
Who bears the onus?
If a subscriber receives content material from a number of service suppliers, which one will bear the first duty of gathering the licence charge?
System-based licencing?
The duty to acquire a TV licence arises when an individual owns and makes use of a “tv set”, mentioned Jacobsberg.
“Amongst the minister’s proposals is that the vary of units on which licence charges can be payable ought to be expanded to incorporate laptops, smartphones and others on which video content material will be obtained and seen,” he mentioned.
Nevertheless, Jacobsberg mentioned that that is ‘a little bit of a crimson herring’.
The Tv licence Charges Rules revealed when it comes to the Broadcasting Act outline a ‘tv set’ for which a licence is required, as ‘any equipment designed or tailored to be able to receiving transmissions broadcast in the middle of a tv broadcasting service’, a definition huge sufficient to incorporate smartphones, tablets and laptops.
“So, no amendments to the present laws really appear to be needed to present impact to this concept,” he mentioned.
“Nevertheless, it does increase a query relating to retailers of those units, and community service suppliers who present the units as a part of a bundle to subscribers – ought to they in truth be insisting on seeing each buyer’s TV licence earlier than they provide the gadget?”
Does the SABC have the authority?
A query additionally arises as to the authorized authority of the SABC to delegate the authority to gather licence charges to companies within the personal sector, mentioned Jacobsberg.
In a number of the media protection of the proposal, it has been reported that the SABC has mentioned that requiring the suppliers of subscription providers to gather TV licence charges ‘can be much like municipalities gathering visitors fines and motorized vehicle licence disks’, he mentioned.
There could also be a similarity in that the obligation to gather income on account of a specific entity is delegated to a different physique, however there the similarity ends, Jacobsberg mentioned.
“The Nationwide Highway Visitors Act and the rules promulgated beneath it expressly permit the ‘shareholders committee’ appointed when it comes to the Highway Visitors Administration Company Act to designate native authorities as registering authorities.
“No such authority exists when it comes to the Broadcasting Act; a provision allowing the SABC to delegate the gathering of licence charges was really deleted in 2003.”
There additionally doesn’t seem like any world precedent for the proposed system, mentioned Jacobsberg.
“In nations the place tv licence charges are collected by a physique aside from the nationwide broadcaster itself, they’re usually billed together with fixed-line phone providers or electrical energy,” he mentioned.
“Given the credibility points across the suppliers of each of these providers in South Africa, it’s unlikely that public resistance to paying tv licence charges goes to be any much less if these precedents are adopted.”
“The truth that only a few, if any, different nations have imposed an obligation on personal sector service suppliers to gather licence charges on behalf of the general public broadcaster might be a sign that the authorized, logistical and financial obstacles merely don’t make it viable.”
One difficulty that instantly involves thoughts is the associated fee, Jacobsberg mentioned.
“The service suppliers should set up a wholly new layer of administration to watch the invoicing and assortment of charges.
“To ensure that the system to run successfully, that must embrace provision for authorized motion towards defaulters. It’s unlikely that any personal enterprise will react kindly to having to bear a further layer of expense from which they won’t profit.”
