Supreme Court dismisses GIBA’s case against NCA seeking to halt execution of pay-tv system

The Supreme Court has in a unanimous decision dismissed a case filed by the Ghana Independent Broadcasters Association (GIBA) challenging the NCA’s conditional assessment system.

GIBA had contended that its members have the absolute right and discretion over the decision to convert their press services programs into a Pay TV service.

The Association argued that neither the National Communications Authority (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 stated 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 to the people.

The writ filed at the Supreme Court in January 2020, asked for a number of reliefs.

Key among them is that the Conditional Access (CA) System, constitutes an unnecessary restraint on the establishment and operation of private media.

GIBA also wanted 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.

The NCA introduced the CA System as a mandatory requirement which effectively blocks media content from Free-To- Air broadcasters unless certain government spelled criteria have been met.

Free-To-Air TV and media according to GIBA is a right guaranteed under Article 162(3) of the 1992 Constitution, and the viewing public would be denied that if government is to place restraints on that.

Decision

The panel presided over by Chief Justice Kwesi Anin Yeboah in its decision held that the case raises no cause of action. The panel noted that the NCA had intended the use of the system to take off in June 2020 but has since rescheduled it.

The court said the claims of GIBA were therefore an anticipatory breach since the policy had not taken off.

The panel further noted that GIBA had failed to demonstrate that any action by the NCA had breached any provision in the constitution including the ones relating to press freedom.

The panel members who heard the case include Justices Dotse, Gbadegbe, Marful-Sau Sau, Nene Amegatcher, Prof Kotey, Mariama Owusu with the Chief Justice presiding.