Break point for anti-siphoning laws
It’s tennis season – thank you, Monica – and it’s also consultation season. One we missed (submissions closed in December) was a thorough and thoughtful paper on anti-siphoning issued by the Department of Infrastructure, Transport, Regional Development, Communications and the Arts. It asked a series of questions ultimately directed at one of the regulatory challenges presented by the rapid take-up of streaming services.
To take a step back, the anti-siphoning list is designed to ensure that some popular televised sports events are available for the public to access free of charge. Subscription broadcasters (pay TV, ie Foxtel) are prevented from acquiring rights to listed events until a free-to-air broadcaster has acquired the rights or until the event is delisted. There have long been differing views on the merits of the scheme, both its objective and its impact on one sector of the broadcasting industry. The consultation paper, appropriately, starts by asking whether the regulatory objective is still relevant and appropriate. Assuming the review finds it is, the government then needs to move on to address a pressing problem.
Because the scheme is designed so narrowly around pay TV – it uses a licence condition on subscription broadcasters to restrict the acquisition of these rights – the policy objective can be undermined by other service providers, notably SVODs (Subscription Video On Demand services), acquiring the rights without being in breach of the Broadcasting Services Act. Even if you support the legislative objective, the penalisation of pay TV alone is increasingly hard to justify. To add to the complexity of the policy issue, subscription services have suggested that the policy intent could be addressed if they agree to make listed events available free of charge, even if other content is behind a paywall.
There are various other questions for the government to consider, one of which could see the scheme shift the regulatory impact from those who televise events to those who sell the rights (eg, sports bodies). Requirements to show events live, and the composition of the list itself, are also under review.
None of this is to say, necessarily, that the networks should not continue to receive some support via broadcasting regulation, including in relation to premium sports events. But if the policy objective behind the anti-siphoning list is still supported, the scheme needs to be expanded in scope to ensure the objective is not subverted by services that were not anticipated at the time the scheme was enshrined in the Act. And if that’s the case, it’s also worth taking a holistic view of the benefits the commercial networks receive under various legislative protections and the adequacy of the public interest measures we expect of them in return.
This article was in our first newsletter of 2023! For more, you can read it here.
Derek Wilding, CMT Co-Director
