Case Number: 35/2012 Date of Hearing

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.

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Internet communication not within jurisdiction of the BCCSA –– Freeman vs 5FM, Case 35/2012.

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SUMMARY

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.”

[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

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. Many of the provisions regarding broadcasting were copied verbatim from the IBA Act.

In a recent wave of activity coming from the Minister of Communications (Minister) and the Independent Communications Authority of South Africa (ICASA), it seems that the stage is being set for an altered regulatory landscape for the broadcasting industry. Lisa Thornton: Thornton Inc.1

[5] What is Broadcasting?

The substance of the majority opinion is based on the advice of an expert (Mr Redelinghuys) and deals with the question of whether the internet is considered to be a valid method of broadcasting. This minority opinion has had the advantage of reading this expert submission.

Broadcasting is the distribution of audio and video content to a dispersed audience via any audio visual medium. Receiving parties may include the general public or a relatively large subset thereof. It has been used for purposes of private recreation, non-commercial exchange of messages, experimentation, self-training, and emergency

1 Lisa Thornton Inc provides legal, policy and regulatory advice to various types of clients including small and large businesses, both established and emerging, civil society and government entities, including Ministries, independent regulators and state-owned enterprises. Lisa Thornton Inc has written countless opinions on matters ranging from constitutional issues to the more technical aspects of communications regulation. Some examples include Electronic Communications Regulatory Review: Proposed Amendments to the Electronic Communications Act - prepared for The Edge Institute and Shuttleworth Foundation, Openness & Transparency at ICASA - prepared for ECN Telecommunications, Protecting Minors from Harmful Content via Mobile Phones - prepared for the Lawyers for Human Rights Child Rights Project and Civil Society Advocacy Programme, and an opinion for the South African History Archive Trust on the issue of Copyright in State Documents in South Africa.

communication such as amateur (ham) radio and amateur television (ATV) in addition to commercial purposes like popular radio or TV stations with advertisements. http://en.wikipedia.org/wiki/Broadcasting

[6] In the Electronic Communications Act of South Africa, “Broadcasting” means:

any form of unidirectional electronic communications intended for reception by— a) the public; b) sections of the public; or c) subscribers to any broadcasting service, whether conveyed by means of radio frequency spectrum or any electronic communications network or any combination thereof, and ‘‘broadcast’’ is construed accordingly;

“Electronic communications” in turn means the emission, transmission or reception of information, including without limitation, voice, sound, data, text, video, animation, visual images, moving images and pictures, signals or a combination thereof by means of magnetism, radio or other electromagnetic waves, optical, electro-magnetic systems or any agency of a like nature, whether with or without the aid of tangible conduct, but does not include content service;

[7] In order to Broadcast, one must be a ‘‘Broadcasting Service”, which means:

any service which consists of broadcasting and which service is conveyed by means of an electronic communications network,

Further, the Broadcast Service must be a “Broadcast Service Licensee”, which means:

a person to whom a broadcasting service licence (in terms of section 5(2)(b) or section 5(4)(b));

has been granted by the Authority in terms of this Act.

Finally, the broadcast service must distribute its content to the audience contemplated under the definition of broadcasting, and this is done by means of “Broadcasting Signal Distribution” which means:

the process whereby the output signal of a broadcasting service is taken from the point of origin, being the point where such signal is made available in its final content format, from where it is conveyed, to any broadcast target area, by means of electronic communications and includes multi-channel distribution;

[8] Although the IBA Act has been repealed and replaced by the EC Act, the EC Act continues to treat broadcasting, a subcategory of Electronic Communication Services (ECS), differently than ECS. In the EC Act, a distinction is still made between broadcasting and broadcasting signal distribution.

As a result, broadcasters will be required to obtain a broadcasting licence in terms of chapters 3 and 9. If broadcasters want to provide their own signal distribution, they

will also need to obtain an Electronic Communications Network Services (ECNS) licence. [9] For the purposes of this paper, broadcasting can therefore be broadly divided into three separate but inter-related processes:

1. The Production Process – the creative process leading to the production of (audio-visual) material; this includes conceptualisation, writing, acting, filming/videoing, editing and a host of other specialised creative services. This may be done by the broadcaster themselves, but more usually as a combination of internal and external production resources. It may also include programmes recorded live as they happen.

2. The Final Content Process – the assimilation of all the produced material into a synchronous offering known as a final content of the broadcast; this process both precedes the creative process (the commissioning phase) and succeeds it (the final control phase). It includes the bringing together of live presentation, produced material emanating from process one above, as well as advertising and other commercial material. It also, importantly, includes the addition of various materials required to conform to various regulations; e.g. audience advisories.

3. The Signal Distribution Process – the distribution of the broadcast to an audience via means of a type of signal; the signal may either be analogue or digital in nature, and can be sent via many different communication networks, either by the broadcaster themselves (e.g. Multichoice/DSTV) but more usually by specialist providers of such services contracted to the broadcaster (e.g. SABC/SENTECH).

[10] The BCCSA is primarily mandated to exercise control over broadcasters in respect of processes 1 and 2 above. In general, all complaints are heard that emanate from the “final content output”, although there are specific nuances as well, such as the timing of broadcasts of that “final content”.

[11] However, in this specific instance, the BCCSA is commenting, and indeed reaching a judgment, in terms of Process 3; the signal distribution.

[12] Does the use of the internet by broadcasters fall under the definition of broadcasting?

The EC Act, more specifically Section 2, as quoted above, specifically promotes the idea of “Convergence”, with the aim of achieving a “technologically neutral” licensing framework.

This legislated aim supports the view that broadcasting in its proposed final state will be inclusive of the internet, rather than excluding it.

I would therefore, with respect, suggest that the view of Mr Redelinghuys, is incorrect in this regard.

The statement in the judgment that the definition of broadcasting supports the view of Mr Redelinghuys is also not clear-cut. My opinion is that the EC Act supports rather than gainsays that the internet (as an electronic communications medium) is a valid form of broadcasting.

This is specifically supported by the following relevant parts of the definition:

… whether conveyed by means of radio frequency spectrum or any electronic communications network or any combination thereof, and ‘‘broadcast’’ is construed accordingly;

[13] In regard to the statement in the judgment that the tribunal (B vs Multichoice, Case 21 of 2012) has already found that “internet communication as such does not amount to broadcasting”. This is a red-herring and is used out of context – the finding was that the electronic ordering of a film from DSTV’s on-demand service is akin to ordering a film over the internet, and that this specific act, as with internet communication generally, does not amount to broadcasting.

[14] This is because the electronic ordering process, whilst indeed an example of convergence, does not contain all of the components of broadcasting as per the definition (given above), with only the method of delivery (namely via the decoder) being in common.

[15] The contention of this minority opinion therefore is that this specific case does not speak to the situation under consideration; i.e. where a broadcaster deliberately takes the “final content” as assembled as the “broadcast” and then distributes it via multiple means of “signal distribution:” … with one of these being the internet in addition to the normal means of signal distribution.

[16] In apparent support of the aforementioned aims of the EC Act, in 2009 ICASA provided a broadcast license to Telkom Media, the conditions of which license included the broadcast of content via Internet Protocol Television (IPTV).

Subsequent to this, ICASA has recently (in 2012) published Digital Migration Regulations and it also has initiated public debate on regulations for IPTV and Mobile TV, amongst others.

Undoubtedly therefore, ICASA has already recognised that broadcasting not only can but should also be done via the internet.

[17] It is also pertinent to note that many of the major as well as smaller broadcasters that subscribe to the BCCSA code have themselves already embraced the internet as a further platform for the signal distribution of their broadcasts.

To whit, these broadcaster provide/host links, either on their own websites or on generic websites, that allow viewers and/or listeners to stream their broadcast/s via the internet.2

[18] The following is a list of the links that could be sourced for the purposes of this paper:

Commercial Stations

5 FM Website: www.5fm.co.za

94.2 FM Jacaranda Website: www.jacarandafm.co.za

2 Live audio streaming for most stations in South Africa is provided by the AntFarm and by Net Dynamix. However, if you're planning to listen to the radio for an extended time, it's best to initiate it from the home page of the respective radio station (as listed below). Read more: http://www.southafrica.info/abroad/streamingradio.htm#ixzz226iATsNq

94.5 Kfm Website: www.kfm.co.za

94.7 Highveld Stereo Website: www.highveld.co.za

99.2 Yfm Website: www.yfm.co.za

567 Cape Talk Website: www.capetalk.co.za

Algoa Website: www.algoafm.co.za

Capricorn FM Website: www.capricornfm.co.za

Classic FM Website: www.classicfm.co.za

East Coast Radio Website: www.ecr.co.za

Gagasi 99.5 FM Website: www.gagasi995.co.za

Good Hope 94 - 97 FM Website: www.goodhopefm.co.za + Mobisite: goodhopefm.mobi

Heart 104.9 FM Website: www.1049.fm

Kaya FM Website: www.kayafm.co.za

Metro FM Website: www.metrofm.co.za

MPower FM Website:www.mpowerfm.co.za

North West FM Website:www.northwestfm.co.za

OFM 94 - 97 Mobisite: m.ofm.co.za

Radio Kansel/Radio Pulpit Website: www.radiokansel.co.za

Talk Radio 702 Website: www.702.co.za/onair + FREE 083 900-0702 to listen via your mobile

Public-service stations

All public service stations, including the African language stations, are broadcast by the SABC, South Africa's national broadcaster. The following offer internet streaming.

SAfm Offers live internet audio Radio Sonder Grense Offers live internet audio Lotus FM Offers live internet audio

Community stations

Eastern Cape community stations

Bay FM Website: www.bayfm.co.za

Kingfisher FM Website: www.kingfisherfm.co.za

Link FM Website: www.linkfm.co.za 10

Rhodes Music Radio Website: new.rhodesmusicradio.co.za

Free State community stations

Karabo FM Website: slmhost.com/karabofm.co.za/

Gauteng community stations

1485 AM Radio Today Website: www.1485.org.za

90.6 FM Stereo Website: www.906fm.co.za

Impact Radio Website: www.impactradio.co.za

Radio Islam Website: radioislam.ndstream.net

Radio Pretoria Website: www.radiopretoria.co.za

Tuks FM Website: www.tuksfm.co.za

UJFM Website: www.ujfm.co.za

North West community radio stations

PUK FM 93.6 Website: www.puk.ac.za/studentelewe/pukfm/index_e.html

Western Cape community radio stations

Bush Radio Website: www.bushradio.co.za

Eden FM Website: www.edenfm.co.za

Fine Music Radio Website: www.fmr.co.za

MFM 96.2 Website: www.mfm.co.za

Radio Namakwaland Website: www.radionamakwaland.rsa.nu

Further information in regard to the above can be read at: http://www.southafrica.info/abroad/streamingradio.htm#ixzz226fbfQiz

[19] The view of this minority opinion is that there seems to be no legitimate basis for the BCCSA to “paint itself into a corner” at this stage by issuing a definitive “the internet is not broadcasting” judgment at this point.

[20] The SABC, who referred the issue of jurisdiction back to the BCCSA, would also appear to have no case to fall back upon, as they themselves are already utilising the internet as a platform for their signal distribution. In fact, in the tribunal hearing about this matter (heard on 27 June 2012), the station manager for 5FM bemoaned the 11

fact that they are not allowed to count internet audience numbers for AMPS and other statistical purposes, something that affects commercial rate cards.

[21] Does an international complainant fall under BCCSA jurisdiction?

This matter refers back to the three processes of broadcasting as outlined above, and in particular to process three; namely signal distribution.

In support of this, the EC Act, clearly makes a distinction between broadcasting and broadcasting signal distribution.

The latter is defined as – “… process whereby the output signal of a broadcasting service is taken from the point of origin, being the point where such signal is made available in its final content format, from where it is conveyed, to any broadcast target area, by means of electronic communications and include multi-channel distribution.”

The EC Act defines broadcasting as –

“… any form of unidirectional electronic communications intended for reception by the public, sections of the public or subscribers to any broadcasting service, whether conveyed by means of radio frequency spectrum or any electronic communications network or any combination thereof.”

As a consequence, Broadcasters are required to obtain a broadcasting licence in terms of chapters 3 and 9, and If broadcasters want to provide their own signal distribution, they will also need to obtain an ECNS licence.

[22] In terms of the above, it would seem that the BCCSA’s main mandate is to adjudicate in terms of broadcast content; namely the “output signal of a broadcasting service”.

It is this output signal that is then received by a viewer/listener … and subsequently complained of to the BCCSA.

[23] The signal distribution that takes place between the broadcaster and the viewer is another entirely different process, as separately defined in the EC Act, and as elucidated above.

This signal distribution process is therefore irrelevant to the final content … either as “output” by the broadcaster or received by the citizen.

[24] The complaint in this specific case (Freeman vs 5FM) is not about signal distribution, but about “final content”, and the complaint itself should therefore, in my opinion, be valid.

The fact that Mr Freeman is listening via the internet is not relevant when adjudicating the specifics of the complaint about the “final content” output.

Mr Freeman’s personal geographic circumstance when listening to the internet is however a different issue. The fact that the internet has no geographic boundaries does not automatically mean that complaints from outside South Africa are legitimate.

Equally however, until properly tested, it also does not mean that complaints received from persons residing outside of South Africa should be automatically disqualified.

[25] Simplistically, geography is irrelevant to the complaint about the “final content” output – the offensiveness or acceptability of the “final Content” is an objective process, based on various South African Constitutional and Media law, as well as precedent and jurisprudence.

[26] Accordingly, the fact that Mr Freeman does not reside in South Africa and may therefore not have a commonality with an ordinary South African viewer/listener is of no consequence.

As an additional complication, Mr Freeman is in fact a South African, resident for the time being in another country. Does this mean that his constitutional right to protection under the South African constitution has fallen away due to his current geographic positioning?

[27] The real question therefore is whether a person not residing in South Africa is entitled to complain about something that happened in South Africa. This is not my field at all, but I would posit that common sense (perhaps international law too) allows the receipt of such complaints on the proviso that they are to be judged solely against the mores and conventions of South Africa.

[28] Summary

In the instance, based on the reasoning above, I would have found that:

1. the internet is indeed a valid form of signal distribution for a broadcaster and accordingly the “final content” of broadcasts received via the internet are subject to the Code of the BCCSA; and

2. the complainants geographic locale is irrelevant to the objective evaluation of the “final content” of the broadcast as complained about;

3. the issue of whether complaints emanating from outside of South Africa should be debated further … one cannot obviously have an open-door-to-the-world

policy … but in the interim, they should be judged on the merits of the case, as per current BCCSA procedure.

JCW VAN ROOYEN SC CHAIRPERSON