DStv tears into Openview free sports rights demands

DStv owner MultiChoice has ripped into eMedia’s application to the Competition Tribunal, calling it “sheer opportunism”.

eMedia, which owns and operates Openview, has argued that MultiChoice included anti-competitive restrictions when it sub-licensed World Cup broadcasting rights to the SABC.

Last year, MultiChoice and the SABC concluded last-minute deals that allowed the public broadcaster to show key matches from the Rugby and Cricket World Cup tournaments.

These included all the matches featuring South Africa’s national teams, as well as the semi-finals and finals, regardless of who was playing.

However, the deals explicitly blocked the SABC from broadcasting the matches on any of the channels carried by Openview.

In response, eMedia filed a complaint with the Competition Commission and approached the Competition Tribunal to block MultiChoice from enforcing this restriction in the interim until the merits of the case are decided.

MultiChoice has explained that the sub-licence would’ve been more expensive had Openview been part of the deal.

Therefore, the SABC had a choice to pay on eMedia’s behalf, or eMedia could’ve paid its fair share for the rights.

eMedia says this argument from MultiChoice is a red herring.

“SABC is paying for free-to-air rights, and the [matches] should be available on all free-to-air platforms,” eMedia legal and business affairs executive Philippa Rafferty previously told MyBroadband.

“The [matches were] available on SABC 2 on all other platforms in South Africa, including analogue, DTT [digital terrestrial television], DStv, StarSat and even OTT.”

OTT is short for over-the-top and refers to online video streaming services. SABC showed the rugby and cricket on 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.”

In its heads of argument filed on Monday, 15 January 2024, MultiChoice accused eMedia of dressing a commercial complaint in ornate competition clothing.

“Having made no investment in the sports rights, having taken no risk, and having not even sought to obtain a sub-licence from SuperSport, it wants to be able to access sports matches for free and to include them in its Openview service for broadcast to its customers,” MultiChoice stated.

MultiChoice contended that none of eMedia’s competition law complaints have any basis in law or fact.

“eMedia’s true grievance is simply a commercial one, namely that the impugned restriction is preventing it from being able to free-ride on SuperSport’s investment in sports rights,” it said.

“Thereby being able to negate the competitive advantage that the MultiChoice group is entitled to derive from the investments that it has been willing to make in such rights.”

MultiChoice said it demonstrated in its 85-page argument that eMedia’s attempt to squeeze its complaint into the strictures of the Competition Act disregards the jurisprudence of the Tribunal.

It argued several technical points, including that the interim relief eMedia requested is an exceptional remedy in competition proceedings.

The pay-TV broadcaster also said that granting eMedia’s application would irreparably harm MultiChoice in six months, whereas dismissing it would leave eMedia no worse off.

Should the merits of the case be decided in MultiChoice’s favour, there would be no reversing the damage the interim order would have done.

MultiChoice asked that eMedia’s application be dismissed.

“If the Tribunal were to take a different view of the matter, then we submit that there should be no order as to costs,” MultiChoice further contended.

“As the [Competition Appeal Court] held…and as the Tribunal confirmed… the Act vests the Tribunal with no power to make a costs order against an unsuccessful respondent in interim relief proceedings. It is therefore surprising that, without any explanation, eMedia continues to ask for costs.”

The Tribunal has announced that it will hear eMedia’s interim relief application from 10:00 today, Thursday 18 January 2024.

This is not the only dispute between the two companies before South Africa’s competition authorities.

In 2022, MultiChoice did not wish to renew an agreement between DStv and eMedia to carry four of its channels — E.tv Extra, eToonz, eMovies, and eMovies Extra.

In December, the Competition Tribunal granted eMedia’s application to extend an interim relief order by six months, forcing MultiChoice to keep carrying the channels until the Competition Appeals Court rules on the case’s merits.

That hearing is scheduled for August 2024.

At the same time, MultiChoice has bought the exclusive rights to eMedia’s eNCA news channel for another five years.