by Thinus Ferreira
MultiChoice won on Tuesday afternoon after the court tossed eMedia's Openview case against SuperSport over the 2023 Rugby World Cup TV rights that MultiChoice described as "a classic example of free-riding".
The High Court of South Africa's Gauteng division in Johannesburg on Tuesday struck eMedia's urgent application against MultiChoice and SuperSport off the roll, which means that MultiChoice emerged victorious in the latest sports rights TV fight between Randburg and Hyde Park.
The Randburg-based pay-TV operator and the SABC were dragged to court by eMedia for blocking Openview from showing 2023 Rugby World Cup matches seen on SuperSport and SABC2 and for which Openview hasn't paid for.
After the SABC paid R57 million to sublicence 16 of the 2023 Rugby World Cup matches from SuperSport, viewers of SABC2 on Openview get filler content during matches, while viewers of the SABC2 channel carried on DStv and StarSat, as well as on SABC+ see the Rugby World Cup matches.
eMedia and Openview didn't pay for the Rugby World Cup matches and didn't license and pay for any content from the Rugby World Cup organisers.
eMedia also didn't sublicence content from SuperSport but argued that what is shown on any SABC channels should be available, and the same, anywhere, irrespective of the platform the SABC's channels are on.
In its answering affidavit to eMedia's urgent application before the High Court, Marc Jury, MultiChoice SA CEO, said that Openview now wants to show 2023 Rugby World Cup matches for free "at no cost to itself despite the fact that it could have participated in the process of securing a licence for those rights from World Cup Rugby directly but never did so".
"After SuperSport had acquired the licence from RWCL in Dublin, Ireland, SuperSport entered into a sublicensing agreement with the SABC to allow for Springboks and other matches to be broadcast on the SABC."
"SuperSport and the SABC agreed that the SABC could exploit the rights on its own owed and operated platforms but it would not be permitted to make available the licensed matches on any third party-owned or operated platform," Marc Jury explains.
"This meant that the SABC is not permitted to make the matches available for broadcast on third-party platforms like Openview. eMedia wants to broadcast the matches to their Openview customers without paying a cent to do so".
'Classic example of free-riding'
Marc Jury argued that eMedia and Openview "were well within their rights to engage in the competitive process to acquire a licence from World Rugby to broadcast the Rugby World Cup 2023 matches. They elected not to do so."
While SuperSport already started the process in 2018 and acquired the rights in mid-2018 for 2023's Rugby World Cup "eMedia's case is a classic example of free-riding - seeking to profit off another's expense without contributing at all," Jury noted.
SABC got it even cheaper
Marc Jury says that "if it were not for SuperSport being willing to pay the substantial price it did for the rights, no-one in South Africa would be able to view Rugby World Cup matches at all".
"It has therefore been SuperSport who has advanced, rather than undermined or infringed, the South African public's interest in watching the matches. The SABC has also itself spent money to acquire the sublicensed Rugby World Cup matches in stark contract to eMedia which seeks to transmit those matches for free."
Marc Jury explained that the SABC got the 2023 Rugby World Cup sublicensing rights from SuperSport at R57 million at a much cheaper price than it did before.
"The amount paid by the SABC under the sublicence agreement was far below market value for the rights" he notes and says it's also "far below the amounts paid by the SABC for the 2011 and 2015 Rugby World Cup".
"SuperSport elected to accept this amount with considerable concern and at economic cost to itself but did so mindful of the SABC's financial position in order to promote the free-to-air coverage on the public broadcasting service."
"A broadcaster having a genuine interest in broadcasting valuable rights would plan well in advance of the events in question and seek, on a commercial basis, to acquire those rights on a licensing or sublicensing basis. These are steps that eMedia has simply failed to take," Jury noted.
eMedia ordered to pay legal fees
The court on Tuesday stuck the urgent application from the roll.
"Today the Johannesburg High Court struck from the roll a case brought by eMedia against MultiChoice, SuperSport and SABC regarding the 2023 Rugby World Cup," MultiChoice says in a statement released after the hearing.
"The High Court further directed eMedia to pay the costs of MultiChoice and SuperSport, including the costs of three counsel. The effect of the High Court’s decision is that the position remains that the Springbok matches at the Rugby World Cup will continue to be broadcast only on SuperSport and the SABC," MultiChoice noted.
"The matches are not broadcast via Openview because eMedia has at no stage purchased or even attempted to purchase the rights concerned. MultiChoice and SuperSport welcome this development."
"As MultiChoice SA CEO Marc Jury explained in his affidavit before the High Court eMedia's case is a classic example of free-riding - seeking to profit off another's expense without contributing at all."
