By Lehlohonolo Lehana.
The Competition Tribunal heard that OpenView television viewers were unable to watch the Rugby World Cup 2023 final because MultiChoice abused its market dominance and prevented them from broadcasting the tournament.
Hosken Consolidated Investments subsidiary eMedia Investment, owner of OpenView, went to competition authorities to seek relief against DStv operator MultiChoice SA Holdings, and the South African Broadcasting Corporation (SABC).
MultiChoice had acquired the pay-to-air and free-to-air television rights for the matches, and it sub-licensed the major games to the SABC, with a proviso that the SABC did not provide the content to the OpenView free-to-air platform, with whom the SABC also had a sub-agreement.
It has since emerged that some 20-25% of the SABC’s viewers, watched the public broadcaster’s programs on the OpenView platform, which meant a quarter of the SABC’s viewers were effectively excluded from major sport events being broadcast on the public television service.
Gavin Marriott, appearing for eMedia, said from a competition point of view, MultiChoice’s agreement with the SABC muzzled the SABC’s business with OpenView, and with OpenView, which was MultiChoice’s only real satellite-based competitor in this country.
This curb on both the SABC and Openview’s ability to trade would also continue into the future where the switch from analogue broadcasting meant that DStv and Openview were likely to be the only two viable satellite digital television operators.
He said contrary to MultiChoice’s claim that OpenView was wishing to secure a “free ride” of the broadcasting rights that MultiChoice had purchased at great expense, the restraint that MultiChoice had imposed on the SABC with regard to OpenView, was essentially to “humiliate” OpenView in the eyes of its viewers.
He said also that MultiChoice’s view that OpenView viewers could simply have watched the content elsewhere was spurious, as the viewers had signed up and invested in a set top box for OpenView, with its advertised free SATV channel. He read out some letters from outraged OpenView letters on this matter.
MultiChoice denied the allegations, saying the sub-licence would’ve been more expensive had Openview been part of the deal.
Therefore, the SABC had a choice to pay on eMedia’s behalf, or eMedia could’ve paid its fair share for the rights.
eMedia said this argument from MultiChoice is a red herring.
MultiChoice contended that none of eMedia’s competition law complaints have any basis in law or fact.
“eMedia’s true grievance is simply a commercial one, namely that the impugned restriction is preventing it from being able to free-ride on SuperSport’s investment in sports rights, “it said.
“Thereby being able to negate the competitive advantage that the MultiChoice group is entitled to derive from the investments that it has been willing to make in such rights.”
MultiChoice, Wim Trengove, SC, said he wanted to deal in facts. He said the cost of buying rights to major sporting events was very expensive, that broadcasters competed for them, and that the ownership of the copyright was vested with the organisers.
He reminded the tribunal that MultiChoice’s business model was to differentiate itself from other offerings and that it was under no obligation to provide free of charge a service for which it had paid, but had every right to sublicense them.
“eMedia seems to think it is entitled to it for free, but it doesn’t compete at all: it spends no money and takes no risks. That’s what competition is all about,” he said.
Trengove said in his view and on the facts the constitutional argument was “flawed and had no substance”.
He said no such constitutional right exists allowing the public “the right” to watch broadcast material for free, in the same way that books and other works are not available free of charge. “And even if there were such a duty, that would surely fall to the state, not private parties,” he said.
MultiChoice said it demonstrated in its 85-page argument that eMedia’s attempt to squeeze its complaint into the strictures of the Competition Act disregards the jurisprudence of the Tribunal.
It argued several technical points, including that the interim relief eMedia requested is an exceptional remedy in competition proceedings.
The pay-TV broadcaster also said that granting eMedia’s application would irreparably harm MultiChoice in six months, whereas dismissing it would leave eMedia no worse off.
Should the merits of the case be decided in MultiChoice’s favour, there would be no reversing the damage the interim order would have done.
MultiChoice asked that eMedia’s application be dismissed.
“If the Tribunal were to take a different view of the matter, then we submit that there should be no order as to costs,” MultiChoice further contended.
This is not the only dispute between the two companies before South Africa’s competition authorities.
In 2022, MultiChoice did not wish to renew an agreement between DStv and eMedia to carry four of its channels — E.tv Extra, eToonz, eMovies, and eMovies Extra.
Watch Live in the video below:
Video Courtesy of SABC.