Monday, November 30th, 2020

What are the anti-siphoning laws?

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Extract from a research paper by the author of this website titled:

The effectiveness and relevance of Australia’s Anti-Siphoning laws

in today’s television environment.’

The Anti-siphoning laws reside at s115 of the Broadcasting Services Act (BSA).[1] This section empowers the Minister (currently the for Minister for Broadband, Communications and the Digital Economy) to publish a list of events (not limited to sport) that should be available for viewing by the general public.[2]

The current list of protected events runs from 1 January 2006 and expires on 31 December 2010.[3] The list encompasses 30 events/matches/series/tournaments over 12 sports (including the Olympic and Commonwealth Games) such as all Tennis Grand Slam tournaments, each running of the Melbourne Cup and each International netball match involving Australia.[4]

Whilst this list is extensive and encourages FTA to broadcast these events by “removing any incentive for a subscription service to “lock away” the exclusive rights”[5], interestingly the laws do not:

(1) prevent listed events from being broadcast on pay-TV;[6] or

(2) compel commercial or national broadcasters (SBS and ABC) to acquire the rights to broadcast these events[7]

The laws merely provide the opportunity for FTA broadcasters, including the national broadcasters to acquire the rights to the events on the list before a pay-TV broadcaster, like Foxtel.[8] If a FTA licensee does not acquire the rights or has the right to broadcast the event to more than 50% of the Australian population or the ABC or SBS hold the rights, then pay-TV can acquire the rights.[9]

Events on the Anti-siphoning list can be removed by the following means:

  • Events on the list are automatically de-listed 12 weeks before commencement of that specified event in order to provide pay-TV an opportunity to access the events if FTA does not intend to broadcast the event. However, the Minister can override this provision.[10]
  • An event is also automatically removed from the list one week after the conclusion of the event.[11]
  • Finally, pursuant to s115(2) an event can be removed from the list at the discretion of the Minister.[12]

[1]1992 (Cth).

[2]Broadcasting Services Act 1992 (Cth), s115; Seven Network Limited v News Limited [2007] FCA 1062, 97.

[3]Australian Communications and Media Authority, Sport (Anti-siphoning) (2008) Australian Communications and Media Authority <HTTP://www.acma.gov.au/WEB/STANDARD/pc=PC_91821> at 23 June 2008.

[4]Australian Communications and Media Authority, Anti-siphoning list commencing 2006 (2008) Australian Communications and Media Authority <HTTP://www.acma.gov.au/WEB/STANDARD/pc=PC_91822> at 23 June 2008.

[5]Foxtel Cable Television Pty Ltd v Nine Network Australia Pty Ltd (1997) 73 FCR 429, 430-431; Seven Network Limited v News Limited [2007] FCA 1062, 96.

[6]Des Butler and Sharon Roddick, Australian media law (3rd ed, 2007), 585.

[7]Ibid.

[8]Ibid.

[9]Australian Communications and Media Authority, above n 4.

[10]Department of Broadband, Communications and Digital Economy, Anti-siphoning and anti-hoarding (2008) Department of Broadband, Communications and Digital Economy <http://www.dbcde.gov.au/media_broadcasting/policy_and_legislation/antisiphoning_and_antihoarding> at 23 June 2003.

[11]Broadcasting Services Act 1992 (Cth), s115(1B).

[12]Ibid, s115(2).

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