GIBA sues NCA, AG … over Conditional Access implementation for Free-to-Air TV

The Ghana Independent Broadcasters Association (GIBA) has sued the National Communications Authority (NCA) and the Attorney General’s (A-G’s) Department over the NCA’s decision to introduce Conditional Access for Free-to-Air TV broadcast as a breach of the right to free press enshrined in the 1992 Constitution.

In a writ filed at the Supreme Court last Tuesday, GIBA seeks a number of reliefs – including that the Conditional Access (CA) System introduced as a mandatory requirement by the NCA by which media content of Free-To- Air broadcasters are blocked by the government unless certain criteria have been met before access to content is granted the viewing public constitutes an unnecessary restraint on the establishment and operation of private media as enshrined in Article 162(3) of the 1992 Constitution.

It also seeks a declaration that the blockage of media content of Free-To-Air broadcasters through the use of the Conditional Access System introduced by the NCA is unconstitutional, as this constitutes an unreasonable and unnecessary abridgement of the freedom of the media contained in Article 21(a) and 162 (1) of the 1992 Constitution.

Another relief also seeks a declaration that the blockage of media content of Free-To-Air broadcasters, through use of the Conditional Access System introduced by the NCA, contravenes the spirit and letter of Article 21(f) of the 1992 Constitution; since this constitutes an unnecessary abridgement of the right to information guaranteed under the Constitution.

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GIBA also seeks an order directed at the NCA to remove from the Minimum Requirements for Reception of Digital Terrestrial and Satellite Television Services any system in the nature of Conditional Access that encrypts or blocks the content of Free-To-Air television channels from being received.

It is recalled that the Ministry of Communications through its agency the NCA, since 2017, has been attempting to implement dramatic changes in the television broadcast sector with the introduction of systems of control (Conditional Access System – CAS) – which GIBA frowned upon due to its ability to lock-down the liberalised airwaves and send the nation back to the dark days of monopolised and controlled media.

For some time now, the GIBA and Ministry of Communications have disagreed over introduction of the Conditional Access System – even after the Ghana Standards Authority has made it clear that, by the Standards, the CAS cannot be said to be mandatory for free-to-air receivers.

Subsequently, GIBA welcomed the standards set by the Ghana Standards Authority and accused the Ministry of Communications of doctoring the Ghana Standards Authority document that instructed the broadcast industry to abide by the mandatory requirements for the reception of all TV programmes carried on the nation’s free-to-air digital broadcasting facility.

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It said such conditions – which included the acquisition of a special decoder with a proprietary software that controls and blocks programmes of broadcast content owners, unless certain criteria have been met before access to their Free-to-Air TV contents are granted to the viewing public – constitutes an unnecessary impediment to the establishment and operation of private media as enshrined in Article 162(3) of the 1992 Constitution. GIBA said the implementation of a Conditional Access System, which affects the delivery of broadcast contents only, is a breach of the provisions on freedom and independence of the media in the Constitution.

GIBA argued that as bona fide owners of the broadcast contents, they have the absolute right and discretion over the decision to convert their press services programmes into a Pay TV service; and that neither the NCA nor the oversight ministry, has the right to decide on the shape and form that their contents should be offered to the general public. GIBA believes that the choice of free and unhindered access to their content was assured with the approval received when they applied to the NCA for authorisation to use their regulated spectrum for delivery of Free-to-Air media and press services programmes to the people.

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