SABC plan for Netflix viewers to pay TV licenses could lead legal challenges [Opinion]

SABC plan for Netflix viewers to pay TV licenses could lead legal challenges [Opinion]

The SABC’s proposal to get companies Netflix and MultiChoice to collect licence fees on its behalf will have significant legal challenges and could be met with the same resistance as the e-tolls scheme. This is according to Tabacks Attorneys director for corporate, mergers, and acquisitions Ian Jacobsberg.

Last month, the SABC proposed that regulation be implemented to require services such as Netflix to collect TV licences on its behalf. The SABC also posited that the range of devices on which TV licence fees are payable should be expanded to include smartphones and tablets.

Jacobsberg said these measures are widely seen as a desperate way to address the SABC’s dire financial plight without addressing the reasons that created it in the first place – corruption, inefficiency, and political interference.

“The low levels of collections the SABC has achieved to date may largely be attributed to public resistance to funding what is seen to be endemic wastage and corruption, and there is understandably considerable resistance to widening the revenue base if the funds are going to be similarly misused,” he said.

Legal implications

Jacobsberg said it would be easy enough to introduce regulation obliging service providers to ensure subscribers have a valid TV licence before making their service available.

“The more difficult issue arises if the SABC is actually going to try and compel the service providers to collect the licence fee and pay it over to the SABC,” Jacobsberg said.

He said that this runs into a number of issues, including the following problems.

  • In the case of many, if not most, subscription services, the contracts between the subscriber and the service provider run from month to month and a monthly?
  • Will a service provider have to confirm once a month that every subscriber has a licence?
  • Or will they have to keep a record of how long each subscriber’s TV licence has left to run when their subscriptions commence and ensure that it is renewed prior to expiry, before continuing to provide the subscription service?
  • If a subscriber receives content from several service providers, which one will bear the primary responsibility of collecting the licence fee?

He noted that with regards to the expansion of the definition of a TV licence, this may already be provided for in the current regulations.

“The Television licence Fees Regulations published in terms of the Broadcasting Act define a ‘television set’ for which a licence is required, as ‘any apparatus designed or adapted to be capable of receiving transmissions broadcast in the course of a television broadcasting service’, a definition wide enough to include smartphones, tablets and laptops,” Jacobsberg said.

“So, no amendments to the existing legislation actually seem to be necessary to give effect to this idea.”

Jacobsberg added, however, that there is also the question of the SABC’s legal authority to require private businesses to collect licence fees, which may not be the case.

Could be doomed by public resistance

If the SABC were allowed to delegate the obligation to collect licence fees onto private businesses, this would make it possibly the only country in the world to do so.

“In countries where television licence fees are collected by a body other than the national broadcaster itself, they are generally billed along with fixed-line telephone services or electricity,” Jacobsberg said.

“Given the credibility issues around the providers of both of those services in South Africa, it is unlikely that public resistance to paying television licence fees is going to be any less if those precedents are followed.”

He said the fact that very few, if any, other countries have imposed a duty on private sector service providers to collect licence fees on behalf of the public broadcaster may well be an indication that the legal, logistical, and economic obstacles simply do not make it viable.

“The process of making any proposals into enforceable law is always a long road, with any number of public hearings, parliamentary debates and drafts and redrafts of the regulations to be expected,” Jacobsberg said.

“This is especially so in the case of controversial measures like this one, and it is likely to be some time before it becomes enforceable law, and if it does, whether it will not meet with the same public resistance that doomed e-tolls to failure.”

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