A deep dive into the anti-siphoning legislation reveals a dirty secret no one wants to talk about.
Welcome to a special edition of Media McKnight, focusing on the legality of FOXTEL’s exclusive airing of NRL matches (which has the same implications for AFL).
It’s also the 50th edition of MEDIA McKNIGHT, so thanks for reading!
The video version of this topic is available in the player below, containing an extended interview on the subject of sporting rights.
I’ve had some pushback this past week after I made the point the $5.3 billion NRL deal breaks the anti-siphoning law in the previous edition of Media McKnight.
Here’s what I said:
Exclusivity for Foxtel/DAZN is a very interesting component here because under the anti-siphoning legislation, there should be no exclusivity for pay TV providers like Foxtel/Kayo.
Well, that’s my interpretation of it.
The anti-siphoning list was last updated by the then Minister for Communications, Michelle Rowland, in November 2024.
The NRL is the 7th listed sport and says:
(1) Each match in the National Rugby League Premiership, including the Finals Series.
(2) Each match in the National Rugby League State of Origin Series.
That says to me that EVERY game should be available to fans – FOR FREE.
There’s no carve-out- there’s no allocation of a number of matches that don’t have to be made available for free.
So, how can Foxtel have exclusive matches that people have to pay to see?
People made the point that the legislation only guarantees free-to-air broadcasters the right to purchase the games first, they don’t have to be made available to watch for free.
It’s an interpretation I disagree with.
So, to get to the bottom of it, I spoke with lawyer Michael Wells from Blackbay Lawyers.
It’s worth watching the entire exchange on YouTube if you find this subject interesting.
I started by asking Michael for his broad thoughts on whether Foxtel has the right to air games exclusively.
“On a strict black letter interpretation of the law, I think the deal sits on the right side of, you know, it is a right of first refusal.
“It’s not a guarantee that everything has to be there. And it’s essentially an offer for free to wear to have whole or part of the broadcasting rights. And should they not take it up or be able to take it up, then the, that’s where the subscription television takes it up and takes the offer.”
Having poured over the Anti-Siphoning list and the Broadcasting Act, I cannot pinpoint anything that backs up that assertion.
THE EVIDENCE
So, I presented my case to Michael, asking him to explain each section of the legislation, starting with section 146W of the Broadcasting Services Act, titled: Events in anti-siphoning list should be televised for free.
(1) This section applies to a media content service provider, other than:
(a) a commercial television broadcasting licensee (other than a licensee who holds a licence allocated under section 38C or subsection 40(1)); or
(b) a national broadcaster.
Michael explained this set-up is carving out the free-to-air broadcasters from other platforms.
Then we get into the relevant detail:
(2) A media content service provider must not acquire the right to televise or otherwise provide coverage of the whole or a part of an event that is included in the anti – siphoning list to end – users in Australia unless:
(a) a national broadcaster has the right to televise the whole or a part of the event on any of its broadcasting services; or
(b) both of the following apply:
(i) one or more commercial television broadcasting licensees (other than licensees who hold licences allocated under section 38C or subsection 40(1)) have the right to televise the whole or a part of the event;
(ii) the television broadcasting services of that licensee, or of those licensees, cover a total of more than 50% of the Australian population.
My interpretation of this part of the code suggests Foxtel has no right to air anything exclusively, but they can simulcast games.
Michael sees what he believes is a loophole:
“I think what you’re potentially overlooking is the wording in subsection A there of “a national broadcaster has the right to televise”.
“So whether they take up the right is a completely separate point. It is the offering of the right in itself that is the prerequisite. It’s not necessarily the utilising of that right”.
“If Nine were offered first and they had the right and they chose not to take full rights to all the games, then it is essentially left to commercial broadcasters if they wanna take up the, the remaining rights. And so you see that Nine still has the carve out of certain games and that is potentially what they wanted as a priority”.
It’s an interesting point, but not one I believe stands the test when you add in the Anti-Hording legislation in the Broadcasting Act.
ANTI-HORDING RULES
Part 10A, 146A.
If a commercial television broadcasting licensee acquires a right to provide live television coverage of a designated event or series, but does not intend to televise the whole or a part of the event or series, the licensee must, before the offer time, offer to transfer the right to televise the whole or the part of the event or series, for a nominal charge, to the ABC and the SBS. The offer must remain open for acceptance for a minimum period of 7 days.
To me, the anti-hoarding legislation would suggest those games Foxtel has should actually be offered to the ABC and SBS for the princely sum of $1 (later on in the legislation is states a fee of $1).
Michael believes the anti-hoarding rule might not apply if another outlet takes up the games not aired by Nine, saying:
“If they’ve still offered, in terms of the anti-siphoning position itself, if they have offered it to Nine and Nine chooses not to take it up, and this may also bring into play the anti-hoarding provision that you talked about, because if Nine as the commercial television broadcasting licensee doesn’t take up the offer, they’re not hoarding the television rights because they’ve just never purchased them”.
But that brings us back to the anti-siphoning legislation which puts the NRL on the list of sports that must be aired on Free To Air television, which states games must be aired.
(1) Each match in the National Rugby League Premiership, including the Finals Series.
(2) Each match in the National Rugby League State of Origin Series.
This seems pretty clear-cut to me – Foxtel does not have the right to air any NRL or AFL games exclusively.
The ACMA played it safe when contacted by Media McKnight, offering this statement:
The anti-siphoning rules are set up to give free-to-air broadcasters (the ABC and SBS and commercial television broadcasting licensees Channels Seven, Nine and Ten) the first opportunity to acquire rights to televise designated events, before other types of providers (like subscription TV broadcasters and online streaming providers, which generally charge fees) get that opportunity.
However, there is no obligation or requirement under the rules that free-to-air broadcasters acquire all of the rights to these events or that all events must be shown in full on free-to-air television. The ACMA has information how these rules work on its website.
The claims in this statement are wrong in my opinion. In fact, I asked the ACMA to provide references to the wording in the legislation that allows companies like Foxtel to air games exclusively, and they have not replied.
The NRL believes it has adhered to the legislation.
Foxtel has not responded to a request for a statement.
