Supreme Court dismisses GIBA’s suit over conditional access for free-to-air television

The Supreme Court has dismissed a suit by the Ghana Independent Broadcasters Association (GIBA) which was challenging the decision of the National Communications Authority (NCA) to introduce conditional access for free-to-air (FTA) television.

In its suit, GIBA alleged that the conditional access which would have made some television contents paid for was an impediment to the establishment of private press and, therefore, a violation of Article 162 clause 3 of the 1992 Constitution.

However, in a unanimous decision Tuesday, June 23, a seven-member panel of the apex court dismissed the suit on the basis that GIBA failed to properly invoke its jurisdiction to interpret and enforce the constitution.

According to the court, presided over by the Chief Justice, Justice Anin Yeboah, the conditional access that GIBA was unhappy about was yet to be implemented and, therefore, GIBA was complaining about an anticipatory breach of the constitution.

It was the view of the court that the a person can only ask the Supreme Court to enforce the constitution with regard to the actual breach and not anticipatory breach.

The judgement of the court was read by Justice Sule Gbadegbe.

The court dismissed the case following a preliminary legal objection filed by lawyer for the NCA, Mr Gary Nimako Marfo.

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GIBA’s case

Article 162 (3) stipulates that “There shall be no impediments to the establishment of private press or media.....”

Joined to the writ as defendants were the Attorney–General (A-G) and the NCA.

Recently, GIBA complained about the new standards on Digital Terrestrial Television (DTT) and Direct-To-Home (DTH) published on the website of the NCA.

According to GIBA, the document published by the NCA had a new chapter, numbered 13, which contained Conditional Access and Middleware Applications and additional control features as minimum mandatory requirements, contradicting the original standards (document (GS1099: 2019) published by the Ghana Standards Authority (GSA), which is the statutory body mandated to do so.

The association contended that the standards amounted to attempts to implement dramatic changes in the television broadcast sector with the introduction of systems of control known as Conditional Access System (CAS).

Whereas the GSA standard made CAS non-mandatory for FTA television (TV) receivers, GIBA said the revision to the ‘legal’ standard by the Ministry of Communications made CAS a mandatory requirement for the reception of all TV programmes carried on the nation’s only FTA digital broadcasting facility.

That requirement means that one needs to acquire a special decoder, with proprietary software, before watching any FTA TV programme in the country.

GIBA is of the view that the GSA standard must be adopted and used to regulate the operations of players in the broadcast space to ensure fairness to all.

Reliefs

GIBA was seeking to use the legal action to convince the Supreme Court to declare the new requirement by the NCA as a violation of Article 162 clause 3 and, therefore, unconstitutional.

It was also seeking a declaration that the conditional access system introduced by the NCA was an “unreasonable and unnecessary abridgement of the freedom of the media” and, therefore, unconstitutional.

GIBA further wanted a declaration by the apex court that the action of the NCA was an infringement against the right to information as guaranteed under Article 21(f) of the 1992 Constitution.

Also, it wanted an order from the court “directed at the NCA to remove any system in the nature of conditional access that encrypts or blocks the content of FTA television channels from being received.”