Monday, June 1, 2020

Bocra Vs Multichoice: Much ado about nothing

By Thabo Seoni

The plot of Much Ado About Nothing is based upon deliberate deceptions, some malevolent and others benign. In reading the full judgement on the matter above the following paragraph 35 ÔÇô sticks in my mind “that would amount to a classic example of exercising statutory powers for an ulterior purpose or motive, which conflicts with the principals of legality…. In fact it would come close to blackmail through an abuse of power.”

For those with long memories they will recall the previous legal matter in 2005 between MultiChoice Botswana and in those days the National Broadcasting Board (NBB), and once again the regulator has received clarity and a ruling from Court of Appeals.

The legal case ultimately revolved around whether BOCRA could regulate an entity operating outside of the Botswana boarders ÔÇô and as such the ruling established in the court is that the operations of a foreign company are not subject to local regulation.

Regulation is not a simple business, neither should it be taken lightly when considering the impact of harmful content in the form of hate speech, pornography and the issue of piracy which is so badly damaging Africa’s fledgling creative industries. However, as I have argued before the focus appears misaligned and it does appear that there is “Much ado about nothing” right now in terms of consumer protection.

In previous commentary I have discussed the matter of regulation of the American “giants” such as Netflix and Amazon and how many governments around the world are grappling with how to regulate in the new world of the Internet.  I maintain my position that central to regulation should be the protection of citizens from harmful content.  Over and above this are the important government issues of tax payments, job creation and development of the local industry.

However, this case revolved around regulating price.  It must be remembered that pay television entertainment is not a necessity such as water, electricity, education and health care ÔÇô it’s a discretionary service for consumers who are under no obligation to subscribe if the price and offering is not to their liking ÔÇô as such, the price of entertainment should not be a matter government should be regulating.

Fair pricing is a matter negotiated between a provider and consumer in a fair and transparent market. In Nigeria, following a lengthy debate the Nigerian Consumer Protection Council admitted it had no mandate, desire or intention to statutorily regulate the price of MultiChoice’s services, either by the pending litigation or future regulatory action.   Similarly, in the Court of Appeal ruling handed down on Friday 8 February last week in Botswana further supports this position.

For pay television to be sustainable it has to be able to charge customers for the price of satellite infrastructure, technology, the massive cost of content especially for sports rights and the support services it provides its customers.  If this is not able to happen on a free demand and supply basis it will not be sustainable as we have seen with many of the operators including Kwese and GTV which many will remember.

*Thabo Seoni is a pseudonym. True identity of writer is known to the Editor

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