Proposed Changes to Public Broadcasting Legislation on the Cards

It is no question that the embattled national broadcaster is in dire need of recalibration to pull it out of the dark age into a modern era. The government is of the view however, that this burden should be shared by the nation, whether they consume SABC content or not. In an effort to increase SABC’s revenue streams and enable it to make the changes necessary to not only survive, but to provide competitive quality content, the Department of Communication and Digital Technologies (“the Department”) has employed an interestingly unique strategy. The Department, in its draft White Paper on Audio and Visual Content Services (“draft White Paper”) released in October 2020, has proposed the salvation of the SABC to come in the form of a delegation of the collection of tv licence fees to other persons, particularly pay-tv platforms such as Netflix and MultiChoice.

In amending existing legislation (i.e. the Broadcasting Act) and adopting a new policy framework to accommodate these proposed changes, the Department states, as its rationale, that “the current statutory definition of broadcasting services is too narrow and too platform specific in its application by the regulator to capture the range of new audio-visual content services proliferating online beyond the boarders of nation states.” The proposed policy framework has at its core, new definitions and thresholds for regulating these services. These include new definitions for “audio and audio-visual content services” “broadcasting” “on-demand audio content services” “user-generated video” and “video sharing platform service”. Essentially, this will expand the definition of broadcasting devices that require tv licenses to include smartphones, laptops and tablets.

As it is mandated, the Department invited comments on the draft White Paper from the public and stakeholders, the results of which were quite telling and can only be considered as negative feedback, with the general sentiment opposing the changes. It stands to be seen how much weight the Department will attribute on the public participation comments when finalising the white paper and presenting it to parliament. This should be particularly interesting because an overwhelming majority of public comments do not support the draft White Paper; 96.71% to be precise. With respect to pay-tv players, MultiChoice has also been outspoken about its disinterest in assisting the SABC by collective tv licenses on its behalf.

We are still quite a distance from having the proposed legislative changes finding effect and becoming an Act; with the process of a Bill becoming a law taking on average 2 years in South Africa. The Department has not yet announced when the amendments will be published, with the last round of public hearings on the Draft White Paper only having concluded in the second week of June. How the Department addresses the submissions it received from the draft White Paper and incorporates it into the Bill which will be presented to Parliament will be most interesting in an era marred by policy uncertainty and controversy.

We will continue to keep a watchful eye on the development of this piece of legislation and undertake not to levy a fee for our publication of these updates, Fo’ Sho.

Njabulo Mazibuko
Associate | Attorney
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