15 May 2018

Netflix Controversy - Media Update

by Verlie Oosthuizen, Partner, Durban,
Practice Area(s): Social Media / Cyber Crimes |

Last week the Independent Communications Authority of South Africa (“ICASA”) held public hearings about TV subscription services and the “Netflix phenomenon” was firmly in the spotlight.  Multichoice had not had to deal with much competition in previous years but since streaming content became easily available it claims that it has lost over 100,000 subscriptions to “unregulated” streaming services such as Netflix. Incidentally it does not complain about Showmax… probably because it owns it!

None of the “Over the Top” or OTT streaming video content providers are regulated in the same manner that subscription TV services such as DSTV are.  They do not formally fall under the authority of ICASA or the Film and Publications Board.  This, Multichoice explains, should change in the future so that all pay TV services must comply with the same regulations. The Minister of Communications agrees and has introduced a White Paper to deal with streaming content.

It is not generally illegal or unlawful to watch streaming content online unless you are doing it in a manner which is fraudulent or if the content is pirated.  You will not be criminally liable if you are using virtual private networks (VPN’s) however you may have your subscription terminated by Netflix if you try to circumvent their regional geoblocking by disguising your IP address.  If you download pirated content you may not be criminally liable, but you could be liable for damages to the copyright owner.  If you upload pirated material or distribute it, then you could be criminally liable in terms of the Copyright Act of 1978.

There have been cases where people distributing South African films over the internet illegally have been arrested and charged in terms of the Copyright Act. There is the South African Federation Against Copyright Theft (“SAFACT”) which is an NGO which protects the intellectual property rights of its members.  They report criminal activity and copyright infringements and take civil action against “pirates”.

Viewing options have come a long way since the TV was introduced to South Africa in the 1970’s (much later than the rest of the world). The regulatory system has not caught up just yet but they are working on it furiously.