Nine Network Australia Pty Ltd v Australian Broadcasting Authority, Foxtel Cable Television [1997] FCA 104

Nine Network Australia Pty Ltd v Australian Broadcasting Authority, Foxtel Cable Television [1997] FCA 104

The Authority erred in law because Seven's full coverage rights were not capable of being exercised until after the relevant events were removed from the Minister's notice under s. 115(1B), while Foxtel Cable had live rights during that period. For condition 10(1)(e), the free-to-air broadcaster's right must be exercisable before removal from the notice, and the subscription licensee's rights must not be greater than the free-to-air rights. Seven's highlights rights were not substantially the same as rights to broadcast the matches themselves, so they did not prevent breach by Foxtel Cable.

Jurisdiction
Australia
Judgment Date
25 February 1997
Procedural Posture
Judicial Review Concerning Anti Siphoning Provisions Under the Broadcasting Services Act 1992 (cth) / Reasons for Judgment After Hearing; Matter Stood Over for Short Minutes of Order
Outcome
The Authority's decision was held to be erroneous in law and was to be set aside and remitted to the Authority to decide again according to law; the matter was stood over for short minutes of order.
Legal Topics
['judicial Review' 'anti Siphoning Provisions' 'subscription Television Broadcasting Licence Conditions' 'statutory Construction' 'broadcasting Rights to Sporting Events']
['administrative Law' 'media and Communications Law' 'broadcasting Law'] ['judicial Review' 'anti Siphoning Provisions' 'subscription Television Broadcasting Licence Conditions' 'statutory Construction' 'broadcasting Rights to Sporting Events']

Case Brief

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Procedural Posture

Judicial Review Concerning Anti Siphoning Provisions Under the Broadcasting Services Act 1992 (cth) / Reasons for Judgment After Hearing; Matter Stood Over for Short Minutes of Order

Legal Issues

  1. 1 ['Whether the Australian Broadcasting Authority erred in law in deciding that Foxtel Cable Television Pty Ltd was not in breach of condition 10(1)(e) of Schedule 2 to the Broadcasting Services Act 1992 (Cth).' "Whether, for condition 10(1)(e), a free-to-air broadcaster's delayed broadcast rights exercisable only after 168 hours from the end of an event amounted to having the right to televise the event." 'Whether rights to televise highlights of cricket matches were sufficient to constitute the right to televise the event for the purposes of the anti-siphoning provisions.' 'Whether the rights acquired by a subscription television broadcasting licensee must be no greater than the rights held by the free-to-air broadcaster.']

Ratio Decidendi

The Authority erred in law because Seven's full coverage rights were not capable of being exercised until after the relevant events were removed from the Minister's notice under s. 115(1B), while Foxtel Cable had live rights during that period. For condition 10(1)(e), the free-to-air broadcaster's right must be exercisable before removal from the notice, and the subscription licensee's rights must not be greater than the free-to-air rights. Seven's highlights rights were not substantially the same as rights to broadcast the matches themselves, so they did not prevent breach by Foxtel Cable.

Court Disposition

The Authority's decision was held to be erroneous in law and was to be set aside and remitted to the Authority to decide again according to law; the matter was stood over for short minutes of order.

Orders

  • ['The applicant bring in short minutes of order on a date to be fixed to give effect to the reasons for judgment.']