The internet is steadily encroaching on traditional media, taking over television and radio methods of viewing and listening to content. In a recent Supreme Court matter, the question arose whether the term ‘broadcast’ which has traditionally been used for television and radio programmes, can be applied to live-streaming on the internet.

WIN v Nine: The Background

Since 2013, WIN Corporation Pty Ltd and Nine Network Australia Pty Ltd have been in an arrangement under a Program Supply Agreement whereby Nine had granted WIN an exclusive licence to broadcast in the specified licence areas for a number of the Nine channels. The Agreement was due to have ended in December 2015 but had been extended until June 2016.

In February 2016, Nine began live-streaming its programs on 9Now. WIN took action against Nine, claiming that Nine was in breach of the clause relating to the exclusive licence for WIN to broadcast Nine programs in the licence areas and sought an injunction to restrain Nine from live-streaming the programs. As a backup argument, WIN purported that even if Nine was not in breach of the exclusive licence to broadcast, they were under an implied obligation not to live-stream.

Justice Hammerschlag of the Supreme Court heard the matter and dismissed WIN’s claim on the basis that live-streaming was not within the definition of broadcast under the PSA, and there was no implied obligation for Nine not to live-stream. The Court refused the injunction.

Definition of ‘Broadcast’ Under the WIN-Nine Program Supply Agreement

WIN argued that the meaning of ‘broadcast’ covered a broad range of transmissions including the dissemination of material by any medium such as the internet. The final PSA that WIN and Nine agreed upon did not explicitly define broadcast, and WIN relied on this fact to suggest that it was a broad term. WIN referred to acts such as the Supreme Court Act 1970 and the Broadcasting Services Act 1992 whose definitions of broadcast do include internet.

On the other side, Nine argued that the natural and ordinary meaning of ‘broadcast’ is used in relation to television and radio and that the term used in the PSA was only meant to refer to free-to-air, which was the subject matter of the PSA.

Justice Hammerschlag considered both definitions put forward by the parties in light of the legislative framework and the facts behind the relationship. A closer look at the clause granting an exclusive licence to broadcast in the licence areas was considered critical to determining the meaning. The fact that the licence was limited to the ‘licence areas’ was based on the areas in which WIN had been granted a licence under the BSA, which is a requirement for free-to-air. WIN is granted the licences for their stations which are traditionally television, not internet media. Justice Hammerschlag agreed with Nine’s understanding of broadcast and dismissed the proceedings.

What Does This Mean?

It is important to note that the Court’s’ view of this definition of a broadcast is not determinative of every agreement. The Supreme Court in this matter was careful to highlight that live-streaming did not constitute broadcasting under the legislative framework and more importantly the facts surrounding the PSA. This leaves it open for other treatments of ‘broadcast’ to include live-streaming.

This case shows the changing nature of traditional broadcasting contracts. With existing contracts coming to an end, it will certainly affect the negotiations as an ‘exclusive broadcast licence’ may not necessary be as exclusive if TV networks can stream the same programmes live over the internet. The value of a broadcast licence changes as the content itself is no longer considered exclusive, although the transmission may differ. 

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Dhanu Eliezer

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