Court orders full disclosure of MultiChoice submissions in Icasa pay-TV probe

MultiChoice has been dealt a blow in its bid to keep its trade secrets confidential in the ongoing market inquiry by the Independent Communications Authority of South Africa (Icasa).

The inquiry is looking into the state of competition and market dynamics in the pay-television sector. It was first mooted a decade ago.

MultiChoice, the country’s largest pay-television player, and Icasa were last year taken to task by eMedia after the regulator granted MultiChoice confidentiality over written submissions in 2024.

The JSE-listed eMedia took particular issue with about 275 lines in the submission that were partially or completely redacted, saying the omissions related to MultiChoice’s revenue, operational funding, subscriber numbers and costs — information it considers critical to the inquiry.

Some of the redactions also relate to a consumer survey conducted by MultiChoice, subscriber disconnections or downgrades, and evidence of subscribers downgrading DStv subscriptions and taking up over-the-top subscriptions.

Judge Etienne Labuschagne on Wednesday ruled that Icasa should furnish the eMedia attorneys with unreduced copies of MultiChoice’s response to the regulators’ questionnaire and several complementary submissions.

“The inability of eMedia to access (subject to a confidentiality regime) information required for its legal representatives and experts to digest and respond to may undermine the fairness of the process followed in the inquiry. More importantly, it may adversely affect Icasa’s deliberations on the cogency of material before it,” Labuschagne ruled.

“I am therefore persuaded that the circumstances of this specific matter are exceptional and warrant an order providing for a protected disclosure of confidential information.

The inability of eMedia to access (subject to a confidentiality regime) information required for its legal representatives and experts to digest and respond to may undermine the fairness of the process followed in the inquiry.

—  Judge Etienne Labuschagne

“Icasa is directed not to take steps to finalise its inquiry unless and until the requested confidential information and submissions have been provided to eMedia’s attorneys in terms of this order.”

The order for Icasa to disclose its trade secrets serves as another blow to the embattled MultiChoice, which has bled customers in the past decade.

The company’s new owners, Canal+, canned Showmax, arguing that losses by the service were a financial drain limiting MultiChoice’s investment in keeping its existing base and acquiring new customers.

Since taking control of Africa’s largest pay-TV operator, the French group has concluded that MultiChoice faltered in its customer acquisition spend over the past three years.

The company went from more than 23-million subscribers in March 2023 to 19.3-million in less than two years. That number is now almost a third lower at 14-million.

Norton Inc, which represented eMedia in the Icasa matter, welcomed the judgment.

“The court noted, ‘For Icasa to have the benefit of meaningful submissions in discharging its statutory role, the facts of this matter present circumstances where the inability of eMedia’s experts and attorneys to assess confidential information may very well undermine the cogency of deliberations by Icasa in respect of the information before it in the inquiry’,” the law firm said.

“Accordingly, the court granted access to the confidential submissions to eMedia’s attorneys and experts subject to the proposed confidentiality regime.”