Icasa’s poor reasons for TopTV decision

As submitted to the Daily Maverick.

In 1983, MacKinnon and Andrea Dworkin drafted an ordinance restricting pornography which was briefly adopted by the Indianapolis legislature before being declared unconstitutional. Much of the language defining pornography in this ordinance can also be found in ICASA’s “Reasons” document (pdf) explaining why On Digital Media (ODM, trading as Top TV) were refused permission to add three pornographic channels to their product line.

This ordinance defined pornography as the “graphic sexually explicit subordination of women through pictures and/or words”. The tests for whether or not a item was pornographic included “women are presented dehumanized as sexual object, things, or commodities”, “women are presented as sexual objects experiencing sexual pleasure in rape, incest, or other sexual assaults”, and women being presented in “positions of sexual submission, servility, or display”.

ICASA accept the MacKinnon definition uncritically, much like their entire argument accepts various normative moral claims uncritically. In fact, you might struggle to find a more clear example of a regulator having its work done for it by remote-control, whether via the selective retreating of contested arguments from the likes of MacKinnon or by the latter day moral hysteria of the Christian Action Network (who have previously accused the Cape Times and the Cape Argus of censorship when those papers refused to publish obituaries for the 900 000 South African babies killed by abortion).

Many of the problems with ICASA’s reasoning were skewered in Ivo Vegter’s column on this topic and also my previous column on Multichoice’s similar experience, so won’t be repeated here. Suffice it to say that their argument is still premised on every young person being an expert in both psychological manipulation of his parents, and perhaps also a master hacker of set-top boxes (but one who mysteriously seems to never have heard of the Internet and the pornography available there).

He’d need to be all these things to a) persuade an adult to subscribe, pay the monthly fees, and reveal the two independent pin codes and b) crack those two pin codes if necessary. I checked the sums with the mathematician John Allen Paulos, who confirmed that there are 10 000 possible combinations of one 4-digit pin code, and 100 000 000 combinations for two pin codes. Parents would in other words have to stay away for months, if not years, for children to be able to guess the pin numbers in question. To put it another way, you would be seven times more likely to guess the Lotto numbers than to guess these two pin codes.

The 17-page Reasons document concludes with a summary of its three reasons for refusing the application. First, “the right of women to equality and human dignity overrides the Applicant’s right to freedom of expression, as well as the rights of viewers to receive pornography on television in the home. The Authority holds this view because it regards the consumption of pornography as one contributing factor, amongst others, to the normalisation of violence against women in South Africa”.

While it’s true that the Authority holds this view, the document fails to explain why this is the case. The data they present on sexual offences certainly show a high incidence, but certainly not an increase in the period reported on (2003-2011) – if anything, they show a slight decrease. The data might of course be poor, but that’s the Authority’s problem to resolve if they want to make the connection between pornography and sexual violence.

Oddly, though, ICASA seems reluctant to make that connection despite using it in their conclusion. “The Authority is not saying that there is a direct causal relationship between the consumption of pornography and violent sexual crimes against women. … However, consumption of pornography may contribute to the incidence of rape by making it more likely that those who are already inclined to rape may feel validated by seeing women as sexual objects to actually rape, thereby increasing the overall incidence of rape”.

This thinking is utterly disingenuous, or entirely circular. I suspect the latter, as the document is riddled with phrases like “probable consequences” and “harmful effects” – the seeds of a moral panic are in other words widely planted. The point here is that either pornography does cause these effects, or it does not, or we don’t know. We’ve got some reason to suspect that it doesn’t (and, in fact, better evidence to suggest that it decreases sexual violence), but let’s assume – as ICASA does – that the “empirical evidence for this is not conclusive”.

In other words, we are being told that we should limit it just in case, on the precautionary principle. But unless we have reasons to suspect that pornography validates the perception of women as sexual objects more than Baywatch (for example) does, we also need to prevent the screening of Baywatch. Which is to say, the data needs to support the banning of pornography to prevent this decision from being based purely on an established moral conservatism.

This brings us to the second of the three reasons, namely that ODM “misconstrued the objections to its application as moral or religious grounds rather than as serious stakeholder engagement on constitutional or legal grounds”. The grounds referred, broadly speaking, are rights to equality and dignity. And again, if only consenting adults have access to this material and it cannot be shown to lead to increased sexual violence, the argument makes its case only by saying something to the effect of “pornography undermines equality and dignity because pornography undermines equality and dignity”.

As Margot St. James observed in response to the MacKinnon ordinance, “I’m against the censorship … [one] line that worried me tremendously was, `Pornography represents women as whores by nature.’ Well, what’s wrong with that? I’m a bad girl. I like being a bad girl. I like my whore status. I have control and power over men, in private certainly, and now also in my public life”.

Whether ICASA disapproves of these women or not, they feel empowered through pornography. And while we do have to balance the right to free expression against harms, evidence of such harms is necessary to override the presumption favouring freedom. (For those who want to retort that pornography isn’t a free speech issue, note that ICASA frames it as such, which legitimates a response on those same grounds.)

The second of the three reasons also includes an aside on ODM’s failure to participate in the public hearing. Earlier in the document, this is described as “inexplicable”, and ICASA laments how they “did not receive a courtesy” of being informed that ODM were planning on missing “such a golden opportunity”. The language, in other words, is fairly smug and not exactly impartial in tone. More relevant here though is that only the merit of the case should decide the issue. While ODM certainly erred in not being there to respond, this shouldn’t act as a reason for rejecting their application. Citing it as one seems to confuse making an impartial judgement on a case with teaching a moral lesson to ODM.

The final reason notes that the government has already “limited citizens’ rights to freedom of expression with regard to the consumption of pornography by law. Accordingly, the Authority sees no reason to expand access to pornography on the airwaves into the home”. For a regulatory body that proudly asserts that it is “regarded as pro-active rather than re-active”, this is an odd thing to cite as a reason. They had the opportunity – even if they ended up not taking it – to assert that current limitations are too severe. Instead, this appeal to precedent (and authority) seems to indicate the same intention to justify a foregone conclusion discussed in respect of the other two reasons.

Of course pornography can change the social landscape, and I’m even persuaded that it can do so negatively. Naomi Wolf is quite persuasive in arguing that pornography may be responsible for “deadening male libido in relation to real women, and leading men to see fewer and fewer women as ‘porn-worthy’”. If you agree, you should be free to choose to not subscribe to pornography channels. But you’re no longer free to make that choice – it’s been decided for you that you don’t have that option, and also that you’re not capable of keeping a pin number safe from your children.

P.S.: This FreakoStats post, crunching some porn-related numbers, is well worth reading.

TopTV plans to “release a flood of filth into our communities”

Or so says Errol Naidoo, in any case. I wasn’t planning to say anything about TopTV’s plans to launch 3 porn channels (provided by Playboy TV), because besides this involving TopTV rather than Multichoice, the salient details are identical to those in the DStv porn saga last year. But a few people have enquired as to my views, so here they are.

First, it remains true that we have no compelling evidence that pornography necessarily causes harm in itself. I can’t dispute that some people have had miserable lives, or been exploited and abused in the production of pornography. It’s true that it’s an industry which conduces to trafficking, and it’s plausible that it might lead some consumers to dysfunctional attitudes towards sexuality, gender equality and so forth. These are unwelcome and regrettable correlates of porn.

But as one can’t seem to say often enough, correlation doesn’t equal causation. The fact that many people consume pornography from within healthy relationships, or as singletons who are not disposed towards seal-clubbing, satanic rituals or violence against women and children shows that it’s possible for porn to come without these complications. Which tells us that as much as some production and consumption of porn can come with problems, those problems can be addressed directly without needing to shut down an entire industry. If it ends up being true that these problems are inescapably part of porn production, then I’d agree that porn should be more strictly controlled, and perhaps even eliminated (if that were possible). But they’re not, or at least we have no good evidence that they are.

Which leaves us in a position of having to balance various interests. On the one hand, we have TopTV (or Multichoice), who want to make money. They do this by offering a service that consumers want, in this case porn. If they’re wrong, and consumers don’t want it, then the channels will most likely be pulled. But what they are planning to offer is legal, and they are entitled to do so. Of course they should (from their own self-interested point of view, as well as from the point of view of not causing needless offence) do so in a responsible way. Their plan is to offer these 3 channels as an opt-in service at an extra cost each month. So, parents need to choose whether to allow these channels in their homes or not.

This is stage 1 of the firewall that protects the innocent, fragile children. Unless a parent chooses to subscribe, Jenny and Johnny won’t be exposed to any part of the “flood of filth”. Then, in stage 2 of the firewall, each viewing of one of the porn channels requires the viewer to enter a PIN code. A parent could change this code every day, if they so choose. What this firewall adds up to is that, if Jenny or Johnny end up watching any porn on TopTV, it’s the fault of the parents, not of TopTV.

Naidoo might of course say that this shouldn’t be broadcast even to parents (or adults). For consistency’s sake (although I’m not sure if he’s familiar with that concept), he might also have to say that there can be no violence on TV. There should certainly be no booze on TV – and perhaps there should be no cars on TV, seeing as those can also be used irresponsibly. But none of this really matters to Naidoo and his ilk, seeing as personal choice needs to make way for his fascist world of obedience to the dictates of God. Well, not your god, perhaps, but the one that he insists you believe in. You know, the homophobic one.

He also says that these parental controls aren’t sufficient because:

Despite TopTV’s assurances of parental controls, it will not stop sexually depraved adults from sexually abusing women and children. The majority of the 55 000 rapes of women & sexual abuse of 25 000 children in SA every year, are perpetrated by TopTV’s target market – adult men!

He’s right. TopTV’s parental controls won’t stop sexual abuse, because we’ve got no reason to believe that a) TopTV’s porn will cause their target market to want to go out and rape women or children, and b) all these people already have access to porn, for god’s sake. In the course of his “research”, surely Errol has come across porn that would make whatever PlayboyTV provides look like scenes of Bambi running through a forest?

Naidoo closes his December 8 newsletter with this:

I appeal to you to urgently write to TopTV CEO, Vino Govender and inform him that you will stop paying your subscription fees, cancel your contract or support a targeted boycott of TopTV advertisers if he launches his proposed porn channels in South Africa.

Email Vino Govender at [email protected] and copy in Melinda Connor at [email protected]

Christian consumers stopped Multichoice from launching a 24 hour porn channel on DStv last year. You and I can do it again! Christian citizens must stand up and do what is right!

Before you take a well-deserved holiday with your family – please consider the families that will suffer because of TopTV’s greed. Please encourage your family & friends to write today!

PS: Please forward this email to your family & friends and NOT TopTV [my emphasis]. Please also join us on the official FPI Facebook page for more updates and info about TopTV’s evil agenda.

Perhaps he doesn’t want TopTV to have advance warning of the tsunami of self-righteousness heading their way. I don’t know. But there’s the CEO’s email address. Feel free to write to him to express your support for freedom of choice. Or to say that, even though you don’t like porn yourself, you commend him for his efforts to ensure that it reaches only it’s target market, rather than innocent bystanders. And if you want to mail the other public protector, Errol Naidoo, you can do so here: [email protected]