Judge Ben du Plessis denied the application of Pretoria-based OtherChoice to sell smart cards that would enable viewers to pick up porn programs on their satellites from Spain’s Don’t Panic Television.
OtherChoice unsuccessfully argued that it did not need a broadcasting or signal license to sell the cards.
Du Plessis ruled that OtherChoice’s distribution of the cards violated South African law. Since local law would prohibit Don’t Panic from broadcasting pornographic material, the Judge ruled that distribution of the cards, which are required to access the programs, would circumvent South African law.
“It is clear that Don't Panic TV, assisted by OtherChoice, is broadcasting into South Africa. Similarly, the two entities are providing a broadcasting service,” Du Plessis wrote. “By requiring a person who renders a service in this country to be licensed — albeit that person is in a foreign country while rendering the service — our legislature is not prescribing to that person what he or she may do in the foreign country. The legislature is prescribing what the effect of what the person does may be in this country.”
Concluding that the service provided by OtherChoice and Don’t Panic requires a license under South African law, Du Plessis found that the South African government was free to “interdict the applicant from unlawfully selling smart cards.”
Despite the loss, OtherChoice was ordered to pay the application fee.
