TV encryption: Muthambi wins concourt battle

15 June 2017

Regulation & Policy

Former communications minister Faith Muthambi has won a constitutional court battle against e.tv over encryption in set-top boxes for digital terrestrial television.

TechCentral reported that the minister, who was shifted out of the communications portfolio at the end of March when President Jacob Zuma reshuffled his cabinet, had challenged a supreme court of appeal judgment in favour of e.tv.

In May 2016, e.tv won a significant battle in the long-running war over encryption when the supreme court found that an amendment to the broadcasting digital migration policy by Muthambi, made in 2015, did not follow a process of consultation and was irrational and in breach of the principle of legality. This decision has now been overturned by the constitutional court.

The judgment potentially throws government s long-delayed digital TV migration plan into further chaos. Last month, newly appointed communications minister Ayanda Dlodlo said in parliament that her department s policy on the issue will shift to one that favours encryption, in line with ANC policy. It s not immediately clear what impact Thursday s constitutional court judgment will have on Dlodlo s decision.

The following statement issued by the constitutional court outlines the details of the judgment:

Today, the Constitutional Court handed down judgment in three consolidated applications for leave to appeal against a judgment of the supreme court of appeal (SCA), which held that a clause of an amendment to the broadcasting digital migration policy adopted by the minister of communications was invalid and therefore unlawful.

South Africa will undergo a digital migration process to transition broadcast television signals from analogue to digital form. However, millions of households in South Africa do not have television sets that contain a built-in device to convert digital broadcast signals. Those television sets will require set-top boxes (STBs) to convert digital signals. In line with the policy, STBs will be provided to about 5m lower-income households on a subsidised basis.

At the same time, there has been ongoing debate among key stakeholders regarding whether these subsidised STBs should have the capability to decipher encrypted digital broadcast signals. The applicants contended that the subsidised STBs should not have decryption capabilities. The first respondent, e.tv, argued that they should. When it was adopted in 2008, the policy provided for decryption capabilities. However, in March 2015 the minister published the amendment, which inserted a clause in the policy stating that the subsidised STBs shall not have the capability to decipher encrypted broadcast signals.

After the Amendment, e.tv brought an application to the high court to review the Minister s decision. It argued that the Minister did not have the power to effect that Amendment and that certain consultations as required by the Electronic Communications Act 36 of 2005 (ECA) had not been made. E.tv argued that the minister was required to consult with the Independent Communications Authority of South Africa (Icasa) and the Universal Service and Access Agency of South Africa (Usaasa) before adopting the amendment. The high court held that minister had the power to pass the amendment under the applicable legislation and the constitution. The high court also held that the amendment satisfied the requirements of legality review, including lawfulness and rationality. Accordingly, the high court dismissed e.tv s application with costs.

E.tv lodged an appeal against the high court ruling to the SCA. The minister and 12 other respondents, including the SABC and M-Net, opposed the appeal. The SCA upheld the appeal with costs.

Aggrieved by the SCA s judgment, M-Net, the minister and the SABC filed applications for leave to appeal to the constitutional court. These applications were consolidated. The applicants sought the judgment and order of the SCA to be set aside. The applications are opposed by e.tv and others, including SOS Support Public Broadcasting Coalition and Media Monitoring Africa.

In the majority judgment, Mogoeng CJ (Nkabinde ADCJ, Mojapelo AJ, Zondo J, concurring and Jafta J concurring in the order) held that policy-making is fundamentally a power assigned by the constitution exclusively to the executive. Also, the majority held that consultation is markedly different from negotiation, which is essentially about consensus-seeking. Consultation is about the solicitation of such views as key roleplayers and interested persons might have on a policy proposal.

The majority holds that the requirements for consultation had already been met fully through consultative processes embarked on by Muthambi s predecessors, when she took over. There was no longer any obligation to consult with Usaasa, Icasa or any other interested person. That opportunity had been availed to all, particularly when Carrim published his policy proposals. Muthambi was at large to solicit the views of any other person or entity she thought could be of help to her. Although she went about it in the most unfortunate way, her conduct did not create a right for e.tv which it otherwise did not have.

The majority holds that the standard of rationality contained in legality review is not some supra-constitutional entity or principle that is uncontrollable and that respects or knows no constitutional bounds. Like all other constitutional principles, it, too, is subject to constitutional constraints and must fit seamlessly into our constitutional order, with due regard to the requirements of the doctrine of separation of powers. It is a good governance-facilitating, arbitrariness- and abuse-of-power-negating weapon in our constitutional armoury to be employed sensitively and cautiously.

Source: Screen Africa