CASE NUMBER: 35/2012 DATE OF HEARING: 27 JUNE 2012 DATE OF ISSUE OF JUDGMENT: 1 AUGUST 2012 W FREEMAN COMPLAINANT vs 5FM RESPONDENT TRIBUNAL: PROF KOBUS VAN ROOYEN SC (CHAIRPERSON) PROF HP VILJOEN (DEPUTY CHAIRPERSON) MS G HARPER DR N MAKAULA MR A MELVILLE FOR THE COMPLAINANT: The Complainant not present. FOR THE RESPONDENT: Mr Fakir Hassen: Manager: Broadcast Compliance, Policy and Regulatory Affairs, accompanied by Ms Veronica Barnard, Compliance Officer of the SABC, assisted by the Station Manager Ms Aisha Mohamed. _________________________________________________________________________ Internet communication not within jurisdiction of the BCCSA –– Freeman vs 5FM, Case 35/2012. ___________________________________________________________________________ SUMMARY 1 The legal point which had to be decided is whether the BCCSA has jurisdiction to hear a complaint which emanates from a country outside the licence area and was received by way of what is technically called “streaming” by way of internet communication. The Tribunal held that it only has jurisdiction over broadcasts and that internet communication does not amount to broadcasting. The Complaint was, accordingly, not upheld. JUDGMENT JCW van Rooyen SC [1] The legal point which must be decided at the commencement of this matter is whether the BCCSA has jurisdiction to hear a complaint which emanates from a country outside the licence area and was received by way of what is technically called “streaming”. I have, nevertheless, set out the complaint so that the reader of the judgment can understand the context of the matter. [2] The complaint read as follows: “My address is …Woking, GU23 7ED, UK. Most days I listen to DJ Fresh’s ‘Fresh Drive’ and I enjoy it (we listen over the internet on our internet radio, iPhones and PCs). This afternoon was surprisingly shocking! I kinda wondered whether Fresh or the producer was in a particularly ‘mind in the mud’ mood this afternoon with a large amount of sexual innuendo conversation and swearing in clips. First, DJ Fresh played a clip (two or three times I think) that referred to someone’s partner performing fellatio to 37 other partners. A long conversation split over a number of songs and lasting about 20 minutes then ensued by the studio team firstly with Fresh referencing his “snatch” and asking his team mates if they had ever “done it” with multiple partners. Fresh invited callers to call in and participate in the conversation. Second, someone (Poppi, I think) played a song with a blatant ‘f*ck’ word in it …which she apologised for. Third, a number of the comedy clips played were full of bleeps leaving very little to the imagination. At the end of the day I couldn’t help feeling a little tainted after wincing so many times through-out the afternoon. Not very pleasant at all. Probably the most concerning is that there are children and teenagers which will be listening in. I certainly would not let my kids listen to that. They get rubbish like this at school all the time from peers which has consequences both on the perpetrators who get into trouble but also on the culture which is pulled into the muck and dirtied. So then, you should expect that if you turn on the radio you don’t have to contend with it there as well, especially considering that the radio is a culture and trend-setter and 2 should be holding the bar much, much higher. Keep it clean and happy I say! Hope something can be done. I can’t give you much more detail other than I think it was around 4.30pm and 5.30pm (SA time). I honestly wasn’t listening to the content properly but there were so many bleeps where they were removing words that it really highlighted to me that the language was really bad for a good proportion of the comedy piece. As for the first clip that started the conversation, it was something to do with “37 partners”. You know I think the guys are great and I love their show, but I did think it was too below the belt today.” Evaluation [3] According to the procedural rules of the BCCSA the Registrar will entertain a complaint which is not anonymous, or which, in his or her opinion, is not fraudulent, frivolous, malicious or vexatious and which prima facie falls within the ambit of the Code. The Commission only has jurisdiction over broadcasts. [4] For purposes of this judgment it is not necessary to consider what the position would be if by way of spillage or any other manner a broadcast is received by a complainant outside the licence area of a broadcaster. [5] I requested an expert in the area of broadcasting frequencies, retired General Manager of Sentech, Mr Izak Redelinghuys, to provide us with an opinion. The opinion reads as follows: “The programme “Fresh Drive” is broadcast from the radio station “5FM” in Johannesburg. 5FM is one of the SABC stations and is broadcast from the Auckland Park studio.The programmes from 5FM are aired on FM frequencies in all the major cities in South Africa. Its aim is to broadcast nationally to a youth audience. Its payoff line is "The Power of 5". It, however, also streams its programmes over the internet where the programmes can be received on PCs and internet radios all over the world. The case in point is a listener who has received the programme “Fresh Drive” in the UK.Fresh Drive is presented by DJ Fresh also assisted by other anchors such as Poppy Ntshongwana who is mentioned in the complaint. In conclusion, it has to be said that if the UK listener received the upsetting material on the Internet, it is highly likely that the same material did go out on the FM frequencies in South Africa. However, the complaint came from a listener who received the programme on the Internet which, in the narrow sense, cannot be considered broadcasting. Broadcasting is defined as: the distribution of audio and video content from one point to multipoint via any audio visual medium for assimilation of the broad public. Internet radio or webcasting, on the other hand, is an audio service transmitted via the Internet and not transmitted broadly by means of radio waves on any particular frequency. This means of disseminating audio to the public is relatively new since 2000. In the UK OFCOM does not licence stations that do webcasting but royalties are payable to artists.” 3 [6] The definition of “broadcasting” in the Electronic Communications Act 2005, supports the opinion of Mr. Redelinghuys. [7] In B v Multichoice (Case 21 of 2012) it was held by this Tribunal that internet communication as such does not amount to broadcasting. There is no reason why we should depart from that finding. The complaint is not upheld for lack of jurisdiction over the internet. Commissioners Viljoen, Makaula and Harper concurred with the judgment of the Chairperson. MINORITY JUDGMENT Alan Melville [1] The BCCSA heard (on 27 June) a case involving a complaint from an internationally- based listener against 5FM.The broadcaster did not defend the substance of the case, but instead asked for guidance from the BCCSA as to jurisdiction; namely whether the complaint from the 1) international listener was valid, since he had 2) heard the broadcast over the internet streaming service of 5FM. [2] The question therefore was whether the BCCSA entertain a complaint from a complainant resident outside of South Africa, and listening to a BCCSA member broadcast via an alternative new media platform; e.g. internet radio? [3] Following the tribunal hearing, the Chairman drafted a majority opinion, finding that the BCCSA had no jurisdiction over the complaint, as “internet communication is not within the jurisdiction of the BCCSA”. [4] This is a minority opinion, drafted in response to that finding: This is a multi-dimensional issue, as will be dealt with in this paper as follows: 1. What is broadcasting? 2. Does the use of the internet by broadcasters fall under the definition of broadcasting? 3. Does an international complainant fall under BCCSA jurisdiction? However, before looking at these three issues separately, one needs to note that the current regulatory framework not only openly promotes the notion of convergence but is pre-empting an altered regulatory framework that is “technologically neutral” in the future; broadly this means that services which were once separate and distinct are 4 encouraged to converge to become at minimum overlapping and at maximum one service. The Electronic Communications Act (EC Act) came into force in 2006. The driving force behind the legislation was the convergence of networks and services. It was originally called the Convergence Bill. Section 2 of the EC Act provides that the primary object of the Act is “to provide for the regulation of electronic communications in South Africa in the public interest and for that purpose to— (a) promote and facilitate the convergence of telecommunications, broadcasting, information technologies and other services contemplated in this Act; (b) promote and facilitate the development of interoperable and interconnected electronic networks, the provision of the services contemplated in the Act and to create a technologically neutral licensing framework; (c) promote the universal provision of electronic communications networks and electronic communications services and connectivity for all; The EC Act replaced the then Telecommunications Act and the Independent Communications Authority of South Africa Act (IBA Act), which had regulated the broadcasting segment of the industry. The Broadcasting Act, however, which regulates the state-owned South African Broadcasting Corporation, was left largely intact. The EC Act includes provisions regulating telecommunications on the one hand and broadcasting on the other. However, the market segments are still regulated separately and differently, albeit under the same piece of legislation.