DStv’s SuperSport beats Openview in court fight
The Johannesburg High Court has struck eMedia’s urgent application against MultiChoice off the roll, the broadcasters have confirmed.
eMedia took legal action against MultiChoice over restrictions it placed in a sub-licensing deal with the SABC, blocking it from showing Rugby World Cup games on Openview.
Openview is a free-to-view satellite TV platform owned by eMedia. Viewers need only buy a decoder and install a dish antenna to access the service — no monthly subscription is required.
MultiChoice, which owns DStv and SuperSport, licensed the exclusive rights to broadcast the Rugby World Cup in South Africa.
The matches would have been exclusive to DStv Premium had MultiChoice not struck a sub-licensing deal with another broadcaster.
It reached a last-minute agreement with South Africa’s public broadcaster, the SABC, to broadcast 16 matches live, including every Springboks game.
However, the agreement explicitly blocked the SABC from airing the games on third-party platforms like the eMedia-owned Openview.
MultiChoice explained that subscription TV services like StarSat and its own DStv platform were exempted from this due to South Africa’s “Must-Carry Regulations”.
These compel subscription TV service to carry the SABC’s channels at no cost.
The SABC and Openview have said MultiChoice’s restriction is anti-competitive.
In their court papers opposing eMedia’s application, MultiChoice SA CEO Marc Jury strongly denied the accusation.
Jury said that SuperSport had paid a substantial sum to secure the exclusive broadcasting rights for the Rugby World Cup.
He said it would be commercially imprudent 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. Essentially, MultiChoice would have to increase the price.
eMedia legal affairs executive Philippa Rafferty told MyBroadband that this argument by MultiChoice is a red herring.
“SABC is paying for free-to-air rights, and the rugby should be available on all free-to-air platforms,” Rafferty stated.
“The rugby is available on SABC 2 on all other platforms in South Africa, including analogue, DTT [digital terrestrial television], DStv, StarSat and even OTT.”
OTT is an acronym for “over-the-top” and is industry jargon for online video streaming services. The SABC is showing the rugby through its SABC+ and SABC Sport streaming websites.
“To suggest that SABC needs to pay more to show it on Openview does not make sense as there is already no exclusivity in the rights being on Openview,” Rafferty argued.
“The only conclusion we can draw from MultiChoice and SuperSport’s restriction on Openview is to damage the goodwill of eMedia and the Openview platform.”
Jury denied that MultiChoice specifically targeted Openview with the restrictions on its sub-licensing agreement with the SABC.
The limitations applied to all platforms the SABC doesn’t own, except for those the Must-Carry Regulations exempted.
In his original answering affidavit, Jury also said that MultiChoice had previously imposed similar restrictions on content licensed to the SABC, and no objections had been raised then.
MultiChoice had also filed a counter-application to interdict the SABC from broadcasting the sublicensed Rugby World Cup matches on Openview.
It also asked the court to rule on whether the whole sublicensing agreement would be invalid if it declared the restriction unenforceable.
“SuperSport concomitantly tenders to return the sublicence fees paid by the SABC for the unaired portion of the matches for which the SABC purchased the rights to broadcast under the sublicence agreement,” Jury stated.
Marc Jury, MultiChoice SA CEO and Showmax acting CEO
No urgency
In MultiChoice’s original answering affidavit, Jury argued that eMedia’s urgency was self-created.
“eMedia’s case for enrolling this matter in the urgent court on 10 October 2023 is that it must be heard then because the first match of the Rugby World Cup that it wishes to broadcast to its viewers will take place on 14 or 15 October
2023,” Jury said.
“But its choice to only launch this application two weeks earlier, on 26 September 2023, was both unjustified and prejudicial to the court and the parties who are now placed under pressure to deal with the matter on extremely reduced timeframes.”
Jury said the case could and should have been launched sooner.
“For reasons unexplained by eMedia, it decided to sit on its hands from 8 September 2023 (when it first published its open letter) and 21 September 2023 (when their lawyers first wrote to MultiChoice),” he stated.
“That was a period of just short of two weeks which is completely unexplained on the papers and during which this application could have been brought to afford the parties a more reasonable period to oppose the application and prepare their answering affidavits.”
The High Court ultimately did not rule on the merits of the case, but ordered it struck off the roll.
eMedia was ordered to pay the costs of SuperSport, including the costs of its counter-application and three legal counsel.
“We are obviously very disappointed that the court struck the matter from the roll,” Rafferty told MyBroadband.
“Ultimately the merits of this case will have to be dealt with, particularly as the same black-out applies to the Cricket World Cup. We are considering our options going forward.”
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