DStv owner rips into Openview
MultiChoice has accused E-tv owner eMedia of wanting a free ride to broadcast the Rugby World Cup on Openview, and of providing the Johannesburg High Court with misleading viewership figures to argue its case.
This comes after Openview owner eMedia bought full-page ads in the Sunday Times, Rapport, and City Press to announce that it had taken legal action against MultiChoice.
The dispute between the two companies centres around restrictions MultiChoice placed on a sublicensing deal it struck with South Africa’s public broadcaster, the SABC.
MultiChoice, which owns DStv and SuperSport, licensed the exclusive rights to broadcast the Rugby World Cup in South Africa.
It reached a last-minute deal with the SABC to broadcast 16 matches live, including every Springboks game.
The SABC reportedly raised $3 million (R58 million) to pay for the rights from three sponsors — Castle Lager, Hollywoodbets, and Pineapple.
MultiChoice said that it helped facilitate the last-minute approval of these sponsors with World Rugby.
However, MultiChoice prohibited the SABC from airing the games on third-party platforms it doesn’t own, like the eMedia-owned Openview.
The SABC has called the restriction “anti-competitive” and “irrational”.
Openview has also said the limitation is “overtly anti-competitive” that is “nothing short of domination”.
In its answering affidavit to eMedia’s urgent application to the High Court, MultiChoice SA CEO Marc Jury vehemently denied the allegations.
Jury argued that eMedia and the SABC had every opportunity to bid on the 2023 Rugby World Cup rights when World Rugby invited broadcasters to do so in 2018.
“Despite having the opportunity to acquire a licence to the rights in question, the applicants did not take a single step to participate in the process for purchasing broadcasting rights directly from [Rugby World Cup Limited],” he said.
“A broadcaster having a genuine interest in broadcasting valuable rights would plan well in advance of the events in question and seek, on a commercial basis, to acquire those rights on a licensing or sublicensing basis. These are steps that eMedia has simply failed to take.”
Jury explained that rights to the Rugby World Cup are costly and that it would be commercially imprudent for SuperSport not to attempt to recoup portions of the associated costs in exchange for giving up the exclusivity it paid for.
He also said that if MultiChoice allowed the SABC to broadcast the matches on Openview — a competitor to DStv — it would change the terms of the deal.
SuperSport would either have to charge more or not license the rights to the SABC at all.
“eMedia’s case is a classic example of free riding — seeking to profit off another’s expense without contributing at all,” stated Jury.
Jury also disputed the allegation that MultiChoice was specifically excluding Openview.
He explained that the terms of their agreement with the SABC restricted the public broadcaster from showing the matches on any platform it does not own.
However, platforms that benefit from South Africa’s “Must Carry Regulations” were exempted.
These regulations compel subscription TV services like DStv and StarSat to carry the SABC’s channels at no cost.
Regardless, Jury said none of the above appears to constitute eMedia’s legal claim against MultiChoice.
He said the crux of eMedia’s case was that MultiChoice intentionally interfered with the contractual relationship between Openview and the SABC.
Jury emphatically denied this, saying that MultiChoice is a competitor to eMedia and has no idea what its contract with the SABC stipulates.
Furthermore, Jury argued that they had previously included similar restrictions in content deals with the SABC, and neither it nor eMedia had objected then.
Marc Jury, MultiChoice SA CEO and Showmax acting CEO
The 3.2 million households claim
Jury also tackled the SABC and eMedia’s claims that 3.2 million households could not watch the Rugby World Cup due to MultiChoice’s sublicensing restrictions.
“There is no evidentiary basis for eMedia’s proposition at all,” Jury states.
“Even if it is accepted that eMedia has sold 3.2 million of its Openview set-top boxes, this does not remotely demonstrate that the households concerned need those boxes to watch the rugby.”
Jury said the viewership of the SABC’s channels on Openview is far below the assumed 3.2 million households with Openview set-top boxes (decoders) — let alone its claimed 10 million viewers.
He used the Broadcast Research Council of South Africa’s monthly Television Audience Measurement Survey statistics to argue his point.
“Further, the viewership of SABC 2 [on Openview] is smaller, at a mere 61,605, and SABC Sport even smaller at 18,144, as at 31 March 2023.”
According to Jury, if eMedia’s application were to succeed, it would result in far fewer South Africans having access to the remaining matches.
“This is because if, contrary to everything that has been set out above, this Court were to conclude that the restriction in the sublicence with the SABC is unenforceable and invalid, then the entire sublicence between SuperSport and the SABC would fail because the restriction cannot be severed from the remainder of the sublicence,” he argued.
“The result will be that there will be no free-to-air broadcast of the remaining Rugby World Cup matches because the applicants’ application has resulted in the entire sublicensing agreement failing.”
The hearing for eMedia’s urgent application against MultiChoice is scheduled for tomorrow morning, 10 October 2023.
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