JASA said it believed the Independent Broadcasting Authority (Icasa) had erred in law in failing to find out that the constitutional rights of children should have trumped Top TV’s rights to freedom of expression.
The Alliance also contended that fixing a watershed time of 8pm “flew in the face of common sense”, bearing in mind that most children finished their homework at about 8pm and then watched television for an hour or two until bedtime.
The organisation will ask the court to review Icasa’s findings and refer the matter back to the broadcasting authority for them to apply the law correctly.
Icasa obtained a court order in January last year to stop TopTV from going ahead with the channels without its permission, but in April granted permission for the pornographic channels.
Despite opposition by several family and religious organisations, Icasa said there was no basis in law or research evidence to refuse TopTV’s application.
Conditions included that the channels could only be broadcast between 8pm and 5am, that a double PIN code was put in place and that the adult channels be made available to subscribers as a separate subscription.
On Digital Media announced last month that it would relaunch TopTV as StarSat with a pornographic bouquet consisting of Playboy TV, the hardcore Desire TV and Private Spice in time for the festive season.
JASA’s executive director John Smyth said in an affidavit it was clear from the evidence presented to Icasa that certain men were more likely to be sexually violent towards women if they were exposed to substantial amounts of pornography. There was a substantial risk that those who watched pornography would commit rape and many serial rapists were involved in pornography.
ICASA’s conclusion that there was no evidence to demonstrate that pornography was a direct cause of gender-based violence was not rationally connected to this information, he said.
Smyth described Icasa’s finding that there was no legal basis on which it could refuse an application for channels which harmed children as “astonishing”.
He submitted that Icasas decision infringed the rights of children, whose interests should be paramount in terms of the Constitution. Smyth said children were technologically savvy and it was not realistic to expect a security code to prevent them from gaining access to the pornographic channels.