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Broadcasting Code Final

GOVERNMENT GAZETTE OF THE REPUBLIC OF NAMIBIA

N$20.40N$20.40WINDHOEK - 31 October 2018 No. 6750
No. 602Broadcasting Code for Broadcasting Licensees issued in terms of Section 89 of the Communications Act, 20091
General NoticesGeneral NoticesGeneral Notices
No.6022018
BROADCASTING CODE FOR BROADCASTING LICENSEES ISSUED IN TERMSOF SECTION 89 OF THE COMMUNICATIONS ACT, 2009BROADCASTING CODE FOR BROADCASTING LICENSEES ISSUED IN TERMSOF SECTION 89 OF THE COMMUNICATIONS ACT, 2009BROADCASTING CODE FOR BROADCASTING LICENSEES ISSUED IN TERMSOF SECTION 89 OF THE COMMUNICATIONS ACT, 2009
TheCommunications Regulatory Authority of Namibia, in terms of section 89of theCommunications Act, 2009 (Act No. 8 of 2009), prescribes the Broadcasting Code for Broadcasting Licenseesset out in this Schedule.TheCommunications Regulatory Authority of Namibia, in terms of section 89of theCommunications Act, 2009 (Act No. 8 of 2009), prescribes the Broadcasting Code for Broadcasting Licenseesset out in this Schedule.TheCommunications Regulatory Authority of Namibia, in terms of section 89of theCommunications Act, 2009 (Act No. 8 of 2009), prescribes the Broadcasting Code for Broadcasting Licenseesset out in this Schedule.
  1. Definitions
  2. Application

SCHEDULE

ARRANGEMENT OF RULES

PART A

DEFINITIONS AND APPLICATION

PART B GENERAL CONDITIONS

  1. Obligations regarding information on this Broadcasting Code
  2. News and current affairs
  3. Prohibitions relating to sexual conduct and other explicit material
  4. Protection of children
  5. Violence and hate speech
  6. Privacy, dignity and reputation
  7. Audience advisory assistance
  8. Controversial issues
  9. Watershed period
  10. Competitions and audience participation
  11. Public notices of emergencies or public disaster announcements
  12. Comments
  13. Counter-versions
  14. Advertisements
  15. Exemptions

PART C

COVERAGE OF ELECTIONS AND REFERENDUMS

  1. Party election broadcasts
  2. News and current affairs during elections and referendums
  3. Balance and impartiality
  4. Allocation of free airtime by the NBC
  5. Party election broadcasts
  6. Political advertising
  7. Broadcasting on polling day
  8. Local content objectives
  9. Local content policy
  10. Local content requirements
  11. Measurement of local content
  12. Local content exemption
  13. Record keeping
  14. Supervision by the Authority and enforcement

PART D

LOCAL CONTENT

Definitions

  1. In this Broadcasting Code, any word or expression to which a meaning is assigned in the Act, has the same meaning and -

‘Act’ means the Communications Act, 2009 (Act No. 8 of 2009);

‘advertisement’ means any visual or aural communication, representation, reference or notification of any kind, which is intended to promote the sale, leasing or use of any brand, product, belief, goods or services, or which appeals for or promotes the support of any cause and includes promotional content of display material, menus, labels, and packaging but excludes editorial material unless it is editorial material for which consideration has been given or received;

‘audience’ means both the viewers and listeners of television and radio broadcasting licensees;

‘broadcasting licensee’ means a broadcasting service licensee as set out in the Regulations Setting Out Broadcasting and Telecommunications Service Licence Categories published in Government Gazette No. 4714, General Notice No. 124 of 18 May 2011, as amended in Government Gazette No. 5148, General Notice No. 74 of 13 March 2013;

‘by-election’ means an election through which a vacancy is filled as contemplated in section 63(2) of the Electoral Act;

‘child’ means a person under the age of 18 years as defined in section 1 of the Child Care and Protection Act, 2015 (Act No. 3 of 2015), and reference to ‘children’ has the same meaning;

‘controversial issue’ means an issue of public importance to the Namibian people which has topical currency and excites conflicting opinions;

‘current affairs’ means a programme which is not news but which predominantly focuses on and includes interviews, discussions and comments with regard to, and interpretation and analysis of, issues of immediate social, political or economic relevance and matters of international, regional and local significance;

‘election’ means any election of the President, members of the National Assembly or any member of a regional council or local authority council, as the context may require, and, if relevant, includes a by-election;

‘election broadcast period’ means the period within which party election broadcasts may be transmitted commencing after nomination day and ending 48 hours before polling commences;

‘Electoral Act’ means the Electoral Act, 2014 (Act No. 5 of 2014);

‘film’ has the meaning assigned to ‘film’ in section 1 of the Namibia Film Commission Act, 2000 (Act No. 6 of 2000);

‘local content’ means local content music, local content programmes and local content channels;

‘local content channel’, with regard to a subscription television broadcasting licensee, means an acquired channel which consists of local content music or local content programmes as contemplated in rule 27(3) and which are compiled and uplinked from Republic of Namibia;

PART A DEFINITIONS AND APPLICATION

‘local content music’ means -

‘local content programme” means a programme, which is produced -

‘Namibian language’, for purposes of the definition of ‘local content music’ means -

‘NBC’ means the Namibian Broadcasting Corporation established in terms of the Namibian Broadcasting Corporation Act, 1991 (Act No. 9 of 1991);

‘news’ means programming, which is not current affairs, by a broadcaster in which it predominantly presents factual new information on, or reports on news relating to, events of immediate social, political or economic relevance and on matters of international, national and local significance;

‘nomination day’ means a day determined as nomination day in terms of section 64(1)(a) of the Electoral Act;

‘party election broadcast’ means any programme, whether pre-recorded or a live event, which is -

‘performance period’ means the period of 126 hours in one week measured between the hours 05:00 and 23:00 each day;

‘political party’ means a political party registered in terms of section 137 of the Electoral Act;

‘polling day’ means a day determined as a polling day in terms of section 64(1)(b) for voting in an election or a day determined under section 119(5) for voting in a referendum;

‘programme’ for purposes of the definition of a ‘local content programme’, means any sound, text, still picture or other audio-visual representation, tactile representation or any combination of the preceding which is capable of being created, manipulated, stored, retrieved or communicated electronically and, without derogating from the aforegoing, includes a film;

‘public disaster’ has the meaning assigned to ‘disaster’ in section 1 of the Disaster Risk Management Act, 2012 (Act No. 10 of 2012)

‘public notice of emergency’ means a notice issued by a Government Minister or a duly authorised public enterprise, as defined in the Public Enterprises Governance Act, 2006 (Act No. 2 of 2006) or any other public authority or organ of State relating to a sudden or unforeseen event or situation beyond the ordinary which threatens lives or property;

‘referendum’ means a referendum held as anticipated in section 119 of the Electoral Act;

‘sexual conduct’ means:

‘subscription television broadcasting licensee’ means a broadcasting licensee providing broadcasting services to a subscriber upon payment of a fee; and

‘watershed period’ means the consecutive period commencing at 22:00 on a day and ending at 05:00 of the ensuing day.

Application

  1. (1) This Broadcasting Code applies to all commercial and community broadcasting licensees unless -

(2) Pursuant to section 93 of the Act, until a date determined by the Minister, this Broadcasting Code will not apply to the broadcasting services or to any broadcasting activities carried on by the NBC.

PART B

GENERAL CONDITIONS

Obligations regarding information on this Broadcasting Code

  1. (1) A broadcasting licenseemust ensure that relevant employeesand programmemakers, including those from whom such licensee commissions programmes, understand the content and significance of this Broadcasting Code.

(2) A broadcasting licensee must have procedures in place for ensuring that programmemakers and channel providers can seek guidance from such licensee regarding the relevance and application of this Broadcasting Code.

News and current affairs

  1. (1) Subject to this rule, a broadcasting licensee must use reasonable efforts to -

such account must be presented in such a manner as to clearly indicate that that is the case.

and must pay particular attention to this duty during afternoon or early evening newscasts and updates.

Prohibitions relating to sexual conduct and other explicit material

  1. A broadcasting licensee may not broadcast material which contains, or which judged within the context contains, a scene or scenes, simulated or real, of any of the following:

Protection of children

  1. (1) A broadcasting licensee must ensure that reasonable care is exercised in order to avoid content which may disturb or be harmful to children when the licensee broadcasts programmes at times when a large number of children may be likely to be watching or listening to radio or television programmes.

(2) A broadcasting licensee must, in the depiction of violence in children’s programming, exercise the following particular care:

Violence and hate speech

  1. (1) A broadcasting licensee may not broadcast material which, judged within the context -

(a) contains violence which does not play an integral role in developing the plot, character or theme of the material as a whole; or

Privacy, dignity and reputation

  1. (1) A broadcasting licensee must exercise special care and consideration in matters involving the privacy, dignity and reputation of individuals, bearing in mind that these rights may be overridden by a legitimate public interest.

Audience advisory assistance

  1. (1) In order to assist audiences in choosing television programmes, a television broadcasting licensee must -

Controversial issues

  1. (1) A broadcasting licensee must ensure, in so far as is practical or reasonable, when reporting on a controversial issue that a balanced and reasonable range of significant views and opinions is reported, either within a single programme or within a series of programmes, which shall be broadcast as soon as is reasonably possible.

Watershed period

  1. (1) Subject to rule 5, a television broadcasting licensee may only broadcast programmes on television, which contains scenes of -

intended for adult audiences during the watershed period.

intended for adult audiences during the watershed period.

Competitions and audience participation

  1. (1) A broadcasting licensee must make known during a broadcast the full cost of a telephone call or a message service, such as an SMS, where audiences are invited on air to react to a programme or competition.

Public notices of emergencies or public disaster announcements
13. (1) A broadcasting licensee must without delay broadcast or otherwise distribute, free of charge, a public notice of emergency or a public disaster announcement requested, in writing, by any Government Minister or duly authorised public enterprise or any other public authority or organ of State. 2. ( 2 ) The broadcasting licensee must, prior to the broadcast or alternative distribution thereof, verify the authenticity of the notice with the relevant Government Minister, State-owned Enterprise or other public authority or organ of State from which the written request emanates 3. ( 3 ) A designated position in relation to each broadcasting licensee must be identified as the contact person during business and non-business hours for all matters relevant to this rule. 4. ( 4 ) Compliance with this rule is dependent upon the cooperation of the relevant Government Minister, State-owned Enterprise or other public authority or organ of State involved therein and a broadcasting licensee will not be in breach of this rule if any of them fail to respond to the licensee’s request for information, provides inaccurate information or otherwise fail in providing the broadcasting licensee with information and assistance necessary to effect the broadcast.

Comments

  1. (1) Subject to this Broadcasting Code, a broadcasting licensee may broadcast comment on and criticism of any actions or events of public importance.

Counter-versions

  1. (1) Where it appears that a comment was incorrect or differed in a material respect from what was previously broadcast by a broadcasting licensee, the broadcasting licensee must broadcast or publish, in the manner set out in this rule, a counter-version presented by a person or organisation affected by and objecting against an such incorrect or different fact in any programme transmitted by the broadcasting licensee.

until the broadcasting licensee receives a notice to the contrary from the Authority or for a period of at least 12 months, whichever period expires first.

Advertisements

  1. (1) An advertisement broadcast by a broadcasting licensee must be presented in such a manner that a reasonable audience will be able to identify such advertisement, at the time of the broadcast, as advertising material.

Exemptions

  1. (1) Rules 5 and 7(3) do not apply to -

subject thereto that it is broadcast with due audience advisory after the watershed period on a sliding scale according to contents.

PART C COVERAGE OF ELECTIONS AND REFERENDUMS

Party election broadcasts

  1. (1) A broadcasting licensee may not broadcast, or allow to be broadcast, a party election broadcast under any circumstances except during an election broadcast period.

News and current affairs during elections and referendums

  1. (1) News coverage of elections and referendums is at the discretion of the news editor of the broadcasting licensee.

Balance and impartiality

  1. (1) A broadcasting licensee must afford reasonable opportunities for the discussion of conflicting views and must treat all political parties equitably.

(2) A broadcasting licensee must ensure that it is balanced and impartial in its election or referendum reporting and that no political party, candidate or proponent is discriminated against in editorial coverage or the granting of access to coverage.

the broadcasting licensee concerned must afford that political party, candidate or proponent a reasonable opportunity to respond to the criticism.

Allocation of free airtime by the NBC

  1. (1) Subject to section 93(1) of the Act, where the NBC offers free airtime to various political parties participating in an election, it must do so on the basis of the respective formula set out in rule 22 of this Broadcasting Code.

Party election broadcasts

  1. (1) A political party intending to broadcast a party election broadcast must submit its broadcast contents to a broadcasting licensee at least 96 hours prior to the broadcast thereof.

(7) A political party submitting its party election broadcast contents to a broadcasting licensee for broadcasting -

Political advertising

  1. (1) A broadcasting licensee may not broadcast, or allow to be broadcast, a political advertisements under any circumstances except during an election broadcast period.

Broadcasting on polling day

  1. (1) No broadcasting licensee may on polling day broadcast a party election broadcast, political advertisement or any material canvassing for support of any political party or candidate.

PART D LOCAL CONTENT

Local content objectives

  1. Every broadcasting licensee must, through the promotion, development or broadcasting of local content strive to -
  2. ( a ) encourage the development of Namibian identity and expression by providing, within the type of programmes or music promoted, developed or broadcast by a broadcasting licensee, a wide range of local content which reflects Namibian attitudes, opinions, ideas, values and artistic creativity by displaying Namibian cultures and entertainment through music, dramas, series, news, documentaries, current affairs, movies, films and other programmes;
  3. ( b ) serve the needs and interests and reflect the circumstances and aspirations of Namibian women, men and children in a democratic Namibian society;
  4. ( c ) promote, develop, produce and maintain local content of high standards and quality; and
  5. ( d ) make maximum use of Namibian and African creative and other resources in the creation and presentation of local content.

Local content policy

  1. (1) In order to promote the progressive implementation of local content in broadcasting, a broadcasting licensee must, within 12 months after the commencement of this Broadcasting Code develop, and submit to the Authority, its written local content policy in accordance with this rule.

Local content requirements

  1. (1) A broadcasting licensee must, over the reporting period, during the performance period, measured as set out in rule 28, comply with the minimum local content requirements set out in this rule.

Measurement of local content

  1. (1) A broadcasting licensee must attempt, in so far as reasonably possible or practical, to evenly spread out the broadcast of local content, on a daily basis, over the performance period.

A = total number of hours or time the broadcasting licensee broadcast applicable local content during the performance period

B = total number of hours or time broadcasting licensee broadcast exclusions set out in subrule (4) during the performance period

C = total number of hours or time the broadcasting licensee broadcast programmes or music (including local content programmes and music) during the performance period

and multiplied by 100 to obtain a percentage.

Local content exemption

  1. (1) The Authority may, upon application by a broadcasting licensee, grant an exemption or deviation, with or without such conditions and for such period as the Authority may deem appropriate, from any local content requirement in this Part in the event where -

Record keeping

  1. (1) A broadcasting licensee must keep and maintain such logs, statistical forms and channel, programme and music records as may be necessary to ensure the keeping of -

Supervision by the Authority and enforcement

  1. (1) The Authority shall supervise compliance with the Broadcasting Code, including the local content requirements, in terms of section 90 of the Act.

(3) The Authority will periodically review the Broadcasting Code and specifically also the local content requirements to ensure the continued progressive implementation thereof in order to meet the objectives set out in the Concise Statement of Purposes to this Broadcasting Code.

ANNEXURE

SUMMARY AND ANALYSIS OF COMMENTS RECEIVED

1. Introduction

Subsequent to a review of comments received on the Broadcasting Code published in June 2017, a revised final draft Broadcasting Code was published in the Government Gazette for stakeholder comment on 24 May 2018. A public hearing was held on 30 July 2018 during which verbal comments and input were received on the Broadcasting Code. Written submissions were received from Robin Tyson (UNAM), NBC and MultiChoice. The input and comments received are summarised and responded to below. Stakeholders generally found the revised Broadcasting Code acceptable and expressed their appreciation towards the Authority for its consideration and incorporation of input received from the stakeholders.

2. Stakeholder Input

2.1 Input and Comments Received at Public Hearing

The public hearing was well attended and interactive. Some relevant input and comments received at the hearing itself 1 are:

The above input and comments are noted but will generally not be addressed in the current Broadcasting Code. Future consideration will be given to relevant comments and input when the Broadcasting Code is reviewed.

2.2 UNAM - Robin Tyson

1 Input received in writing and summarised in clauses 2.2 - 2.5 is not repeated in this clause 2.1.

proposal and an addition is proposed to rule 3 (‘obligations regarding information on this Broadcasting Code) obligating broadcasting licensees to regularly (but not less than once a week) make such announcements. However, flexibility is provided for in that: (a) licensees may also publish the relevant information on electronic and/or social media platforms; and

(b) if a licensee does not have control over a channel or programme and cannot within reasonable means make such announcements, such licensee must publish the information on its electronic or social media platform.

2.3 Namibian Broadcasting Corporation

  1. 3 . 1 NBC proposes an additional definition for ‘film’ and that local films should attract double points in the calculation of local content quota. Response: the definition of ‘programme’ is wide and includes films. 2 Should one wish to give local films special treatment, then a definition would probably be necessary. The current local content model (being the first time this is introduced in Namibia) is a simplified model. Countries which have required local content for many years have developed more sophisticated models over time (often inclusive additional points for certain local content or of tax benefits on local content). These type of proposals can be further explored in the future once the current model is reviewed and revised.
  2. 3 . 2 The current definition of ‘local content programme’, in paragraph (f) thereof, requires at least 50% of key personnel to be citizens of, and permanently resident in, Namibia. NBC proposes that this percentage should be 60%. Similarly to the response in clause 2.3.1 above, the decision is to introduce a minimum but meaningful local content requirement to start off with. The impact and success of the first time local content quotas will be regularly reviewed and gradually increased.
  3. 3 . 3 The Broadcasting Code determines the performance period (for purposes of local content) to be a period of 126 hours per week measured daily between 05:00 and 23:00. NBC proposes a reduction to 112 hours a week between 06:00 and 22:00. This proposal will result in more strenuous local content obligations on broadcasters. For the same reasons given above, the proposal is noted and can be considered when local content increases are considered in the future. Also, as national broadcaster, NBC may carry larger local content and would therefore find the initial local content requirements in the Broadcasting Code less strenuous than their current local content programmes and music.
  4. 3 . 4 NBC recommends the defining of ‘political advertising’ in order to distinguish this from other political party broadcast messages such as announcements of gatherings or fund raising initiatives, the latter not being limited to election broadcast periods only. Note: (a) ‘advertisement’ (and ‘advertising’) is already defined and thus covers political advertisements in that they are still advertisements but of a political nature; (b) the decision

2 In view of a comment received from the Namibia Film Commission the definition of ‘film’ in the Namibia Film Commission Act was cross-referenced and the definition of ‘programme’ now includes ‘films’ in order to avoid any uncertainty on this.

is to prohibit political advertising outside election periods and thus, broadcasts which do not constitute advertising (as defined) and which is not a political election broadcast, are not prohibited.

  1. 3 . 5 As regards what constitutes ‘child pornography’ in the definition of ‘sexual conduct’, NBC proposes the addition of inappropriate touching of a child. Child pornography currently

means ‘fondling or touching of breasts, genitalia or the anus’. NBC’s proposal is acceptable and added to paragraph (d) of the definition of ‘child pornography’ to now state: ‘the fondling or touching of breasts, genitalia or the anus and any other inappropriate touching of a child of a sexual nature’

  1. 3 . 6 As regards the watershed period, NBC proposes an earlier start at 21:00 and not 22:00. The comment is noted but is found to be too early and 22:00 is deemed more appropriate.
  2. 3 . 7 NBC proposes the deletion of rule 10(2) since it is difficult for broadcasters to control what callers will say. Rule 10(2) obligates a broadcaster, in so far as is practical or reasonable, to ensure a balanced and reasonable range of views/opinions on controversial issues. NBC’s proposal is noted but the limitations already included (i.e. only is so far as it is practical or reasonable) are deemed reasonable and add flexibility to address this concern.
  3. 3 . 8 Rule 12(1), relating to competitions, requires broadcasters to make known, during a broadcast, the full cost of calling in (or sms) to participate in a competition. NBC states that it could be challenging to apply this requirement to especially phone calls since the rates of various telephone service providers of callers may differ. This is deemed not necessary to amend since these competitions have special numbers and rate is determined between issuer of competition and service provider.
  4. 3 . 9 Rule 13 requires broadcasters to broadcast public emergency notices or public disaster announcements. NBC advises more clarity on these concepts by means of a definition. Note that, without a definition, these expressions will be understood within their ordinary grammatical meaning. It may be beneficial to define these expressions to prevent the indiscriminate use of such announcements and to provide greater clarity. The following definitions are proposed to be inserted:

‘public notice of emergency’ means a notice issued by a Government Minister or a duly authorised public enterprise, as defined in the Public Enterprises Governance Act, 2006 (Act No. 2 of 2006) or other public authority or organ of State relating to a sudden unforeseen event or situation beyond the ordinary which threatens lives or property; and

‘public disaster’ has the meaning assigned to ‘disaster’ in section 1 of the Disaster Risk Management Act, 2012 (Act No. 10 of 2012). 3

3 ‘disaster’ means any serious disruption of the functioning of a community or society, posing a significant, widespread threat to human life, health, property or the environment, which exceeds the ability of the affected community or society to cope using its own resources resulting from -

(a) natural disaster, major accident or other significant events howsoever caused;

(b) destruction or pollution;

(c) scarcity of essential supplies;

(d)

disruption of essential services;

(e) influx of refugees;

(f) plague or epidemic of diseases; or

(g) economic failure.

  1. 3 . 1 0 As regards: (a) rule 22(1), NBC proposes that a political party must submit party election broadcast content at least 120 hours before the broadcast to a broadcaster and not 96 hours as currently stated; (b) rule 22(5)(a), NBC proposes that a broadcaster who rejects a party election broadcast must, no longer than 48 hours after having received the content, give notice of the rejection and the reasons therefor and not 24 hours as is currently stated. These timeframes were proposed in the previous published Broadcasting Codes and, apart from NBC, no other broadcaster commented thereon or found them unreasonable. It is recommended that timeframes stay intact. Should NBC have particular challenges to meet such timeframes there is a general rule under which they can apply to the Authority for exemption or adjustment.
  2. 3 . 1 1 Rule 22(6)(a) determines that election broadcast contents may not contravene any law including the Broadcasting Code. NBC proposes adding hereto that such content may also not contravene editorial policies. This proposal is not accepted in view of editorial policies being internal and it is not the intention of the Broadcasting Code to make them enforceable through statute. The ambit of this subrule is limited to laws of Namibia only.
  3. 3 . 1 2 NBC proposes that party election broadcast may not exceed three minutes in duration instead of the current five minutes provided for in the Broadcasting Code. This proposal is not accepted for the same reasons provided in clause 2.3.10 above.
  4. 3 . 1 3 Regarding rule 27(2)(a) which sets the local content requirement for radio broadcasters at 15% of music broadcast, NBC proposes that this be increased to 50%. It is recommended that the percentage remains as published in the previous draft Broadcasting Code. Only two licensees recommended an increase whereas the other licensees did not comment thereon and thus deemed to have found it acceptable. Also, see previous reasoning to start off with lower levels at the first introduction of local content and gradually increase requirements as this aligns with accepted local content principles.
  5. 3 . 1 4 On rule 28(4), NBC proposes the inclusion of news, sport events and games towards local content. It is recommended that this proposal not be accepted. As explained to stakeholders at the public hearing and in the explanatory memorandum, sport coverage, news, advertising, games, promotions and certain announcements broadcast during the performance period will be excluded (i.e. deducted) from the total performance period’s hours and the local content percentage will be calculated on the remaining hours. This means, for example, local content music required to be broadcast will be measured against only the total other music broadcast during performance period - not against the total number of hours of the performance period thereby reducing local content burden.

2.4 MultiChoice Namibia

  1. 4 . 1 MultiChoice is of the opinion that the Broadcasting Code does not sufficiently distinguish between the following types of broadcasters:
  2.  Those who produce and/or commission programmes
  3.  Those who produce and/or commission channels
  4.  Those who acquire channels which they package into bouquets

This lack of distinction, according to MultiChoice, means that the Broadcasting Code does not cater for a broadcaster such as MultiChoice who has no editorial control over content. MultiChoice is of the opinion that the Code is based on the thinking that all broadcasters commission their own programmes (as opposed to channels and acquisition of channels). MultiChoice states that it does not produce or commission programmes. It acquires complete channels and package them into bouquets. Based on this premise, MultiChoice makes recommendations how the Broadcasting Code could be amended to accommodate their channel acquisition model.

  1. 4 . 2 Local content: MultiChoice supports the Authority’s decision that local content requirements for subscription television broadcasters must be expenditure-based (i.e. a certain minimum amount must be expended on the acquisition or development of local content). Currently the Broadcasting Code determines this to be 1.5% of annual revenue to be expended on local content. MultiChoice proposes that the amount should be determined as a percentage of their annual content acquisition cost of their most recent completed financial year. MultiChoice proposes that such percentage should be 3%. As regards local content requirements for subscription television broadcasters, the following recommendations are made:
  2.  insertion of a definition of local content channels to specify that it is a channel consisting of such a percentage of local content music and programmes as the Authority may from time to time determine - this is to avoid that a channel which features, for example, only 1% local content qualifies as a local content channel
  3.  providing for a percentage-based expenditure requirement of 6% of the subscription television broadcaster’s channel acquisition cost during the previous financial year. MultiChoice’s proposal of 3% is deemed too low especially since, in the absence of the Authority determining a specific percentage of local content for a channel to qualify as a local content channel, all channels (for example NBC currently broadcast by MultiChoice) qualify as local content and may result in the required local content quota already being exceeded
  4.  provision is made for the Authority to determine which expenses must be included in a subscription television broadcasting licensee’s channel acquisition budget and which may be excluded in the event that more clarity may in future be required on this matter
  5.  different from other broadcasters (who are required to broadcast at least the minimum percentage local content), subscription television broadcasters are provided with a choice as to whether to expend the required expenditure on the acquisition or development of local content which expenditure may include expenditure in the Republic of Namibia on local content training, skills development and business development
  6.  a local content channel with regard to which the person who provides or avails the channel is not required by the subscription television broadcaster to compensate the broadcaster for the broadcast thereof qualifies as a local content channel. However, if such channel provider must compensate/pay the broadcaster to broadcast the channel it cannot be claimed as a local content channel
  7.  consequential changes were made to relevant rules in the Broadcasting Code to accommodate the approach recommended herein
  8. 4 . 3 Due to it not having any editorial control over channels purchased, MultiChoice proposes to be also exempted from rules 4, 8, 10, 12 and 15 of the Code. Their ability to comply was duly considered and it is recommended as follows:
  9.  exemption from rule 4 requiring licensees, amongst others, to report news and current affairs truthfully and objectively, not to reveal the identity of certain victims, not to use explicit language relating to news of destruction, accidents etc which could disturb certain viewers and to provide opportunities for alternative views on current affairs programmes. It is recommended that subscription television broadcasters only be exempted from rule 4(7) to (10) but not rule 4(1) to (6) since if there is noncompliance, the broadcaster is required to rectify the matter either by broadcasting the rectification or by rectifying it on its website or other platforms used or any other way which is appropriate under circumstances. MultiChoice can thus align with the first part of this rule
  10.  exemption from rule 8 which requires broadcasters to respect the privacy, dignity and reputation of persons. Exemption is not recommended since rule 8 is not an absolute prohibition but requires broadcasters to take extra care. It is deemed that MultiChoice can apply such care and consideration within its constraints

2.5 Namibia Film Commission & Filmmakers Association of Namibia

  1. 5 . 1 In order to promote local films and the local film industry, it is proposed that the Broadcasting Code includes a definition of ‘film’ and give promotional prominence to local films for purposes of local content. As explained earlier, to do so requires a more advanced local content model (for example a point based model) and it was decided to introduce a simplified initial local content model. However, to clarify that local programmes include films, the definition of ‘film’ in the Namibia Film Commission Act was incorporated under the Code’s definitions and included as part of ‘programmes’. This will also lend greater prominence to local films.
  2. 5 . 2 Concern was expressed as regards protection in the Broadcasting Code for marginalized communities/groups, especially when it pertains to recording them for broadcasting purposes. To accommodate this concern/comment, a reference to marginalized groups is included in rule 8(2).
  3. 2.6 Ministry of Information and Communication Technology
  4. 6 . 1 As regards the consultation of the election part of the Broadcasting Code with political parties, such stakeholder interaction is addressed as follows:
  5.  The Broadcasting Code has been published three times for public comment in the Government Gazette and was widely distributed and consulted;
  6.  The Namibian Electoral Commission was specifically consulted;
  7.  The rules in the Broadcasting Code relating to elections follow and align with the Electoral Act;
  8.  Obligations in the Broadcasting Code mainly relate to broadcasters and not political parties;
  9.  The Broadcasting Code has built-in flexibility and can thus adapt by means of variations and/or exemptions;
  10.  The Broadcasting Code is not cast in stone but will be a living and adaptable code which will be regularly reviewed and continually built upon.