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WIN TV loses appeal against 9Now streaming

NSW Supreme Court upholds earlier ruling in Nine's favour, in a case that defines the definition of broadcasting.

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2016-11-06_0019

WIN TV has lost an appeal against Nine Entertainment Co live-streaming broadcasts into regional areas.

In April the NSW Supreme Court ruled in Nine’s favour, allowing it to stream content into WIN markets in a case that sought to define the definition of broadcasting.

On Friday the Court noted that WIN had willingly entered into an extension of its Program Supply Agreement even after Nine had announced plans to live stream its programming.

“The fact that WIN was prepared to agree to an extension of the PSA after it became aware that Nine proposed to commence live-streaming rather suggests that WIN took a sanguine view of the likely impact of the live-streaming on its advertising revenue during the five months between 27 January 2016 (when live-streaming commenced) and 30 June 2016 (the amended expiration date of the PSA),” the judgement said.

It ruled that the definition of “broadcast” as contained in the agreement did not extend to streaming over the internet.

“There can be no doubt that the parties, being major operators in the relevant commercial field, entered into their contract with the knowledge that live-streaming was technically possible. But the subject matter of the contract had nothing to do with that technical possibility. The bargain was concerned with programs transmitted on Nine’s free-to-air channels in Nine’s licence areas,” it said.

“Viewed in its context, the word ‘broadcast’ was correctly regarded by the primary judge as referring to broadcasting by free-to-air transmission; and that meaning applied both for the purpose of delineating the right granted to WIN and in determining the scope and content of the restriction accepted by Nine as a consequence of the exclusive quality of the licence it granted.”

The regional broadcaster was ordered to pay costs.

Nine began a new affiliate agreement with Southern Cross mid-year, while WIN subsequently partnered with TEN.

Source: Mumbrella

11 Responses

  3. Seems WIN shot themselves in the foot when they signed the new agreement. Basically they agreed to Nine’s version of what was included while publicly arguing against it.

    The main issue is obviously local advertising. What they need to do is jump to the next level where local ads can be included in the national stream. Would be very simple when opening the main channels app to simply indicate what area you are in.

    Would have thought that would not only alleviate the problem – but probably open up some regional wallets if they knew their ads would be targeted to online stuff as well.

  5. At least Bruce had a go. Daughter says she watches “Home & Away” in the office on +7 (she’s the boss). No ads apparently, so only takes 20mins. As a Prime advertiser they are reviewing their ad spend, thanks to Seven.
    “Prime’s 2016 results revealed a 7.7% drop in revenue and a 17.1% decline in profitability (EBITDA). Compounding the problem is increased competition from SVOD players as well as other content delivered via internet streaming. “This reflects the impact of new and largely unregulated market entrants, increased competition for audiences from global and Australian media platforms, and the comprehensive reach of the internet streaming services. All of these factors impact regional television audiences,” Prime Media Group CEO Ian Audsley said”. (AdNews)

  7. I couldn’t understand whyntheyneven bothered to sue given they knew Nine planned to stream there shows live online and still agreed to it! Maybe an expensive way show buyers remorse? Anyway iam not too worried for win or Southern Cross TV because with the bang up job Turnbull has done with NbN than it will take years before regional areas get decent internet that will allow them to stream live consistantly! So at this stage those regional deals r still OK!

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