Supreme Court defers GIBA suit against NCA, AG to March 18

The Hearing of the Motion on Notice for an Order of Interlocutory Injunction filed by the Independent Broadcasters Association (GIBA) against the National Communication Authority (NCA) and the Attorney General (AG) at the Supreme Court has been deferred to March 18, 2020.

The apex court was expected to hear the motion on Wednesday but when parties arrived they were informed by the Court Registrar to return on March 18.

GIBA early this year sued the NCA and the AG’s Department over the NCA’s decision to introduce conditional access to free-to-air TV broadcast as a breach of the right to free press enshrined in the 1992 Constitution.

In a writ filed, 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, 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 same 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 the use of the Conditional Access System introduced by the NCA, contravenes the spirit and letter of Article 21(f) of the 1992 Constitution since same constitutes an unnecessary abridgement of the right to information guaranteed under the Constitution.

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.

NCA Conditional Access System

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

For some time now, the GIBA and the Ministry of Communications have disagreed over the introduction of the Conditional Access System even after the Ghana Standards Authority 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 which 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.

It said such conditions which included the acquisition of a special decoder with proprietary software that controls and block programs 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 on 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, as a breach of the provisions on the 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 programs 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 made with approvals when they applied to the NCA for authorisation to use their regulated spectrum for the delivery of free-to-air media and press services programs for the people.