by Thinus Ferreira
MultiChoice is slamming eMedia's Openview as "a classic example of free-riding" after the Randburg-based pay-TV operator and the SABC have been dragged to court blocking Openview from showing 2023 Rugby World Cup matches on SuperSport and SABC2 and 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 argues 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.
eMedia and Openview decided to take MultiChoice to court.
In its answering affidavit to eMedia's urgent application before the High Court of South Africa's Gauteng division in Johannesburg, Marc Jury, MultiChoice SA CEO, says 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 says 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 argues.
He says eMedia and Openview are wrong in claiming that 3.2 million TV households are unable to watch the 2023 Rugby World Cup matches.
"The viewership of the SABC channels on Openview is a far cry from the 3.2 million households with Openview set-top boxes, let alone the claimed 10 million viewers. Further, the viewership of SABC2 is smaller at a mere 61 605 and SABC Sport even smaller at 18 144 as at 31 March 2023."
Jury says that the irony is that "if eMedia's application were to succeed, it would actually result in far fewer South Africans watching the remaining matches of the Rugby World Cup 2023 than has been the case for the past Springbok games".
"That is because if, contrary to everything that has been set out above, this court were to conclude that the restriction in the sublicence with the SABC is unenforceable and invalid, then the entire sublicence between SuperSport and the SABC would fail because the restriction cannot be severed from the remainder of the sublicence."
"The result will be that there will be no free-to-air broadcast of the remaining Rugby World Cup matches."
According to Jury, "this will be a sorry day for rugby in South Africa but the result will lie squarely at the feet of eMedia".
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."
Jury explains 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 notes.
The hearing for eMedia's urgent application is scheduled for Tuesday 10 October.
