Openview and e.tv parent eMedia Holdings will once again argue that MultiChoice Group is abusing its dominant position to dictate the broadcasting terms for premium sporting events to the SABC – this time at the Competition Tribunal on Thursday.

The battle between eMedia and MultiChoice over sports rights is a longstanding one.

In October last year, eMedia filed papers with the Competition Commission and the Competition Tribunal over MultiChoice’s refusal to allow rugby and cricket games sublicensed to the SABC to be carried on the public broadcaster’s channels on the Openview free-to-air satellite platform.

But it lost round one of a high court challenge against MultiChoice, over the rights to broadcast the Rugby World Cup, with the court finding that the matter was not urgent (it didn’t pronounce on the merits of the case). Now it’s time for round 2.

MultiChoice has a dominant market position and secures exclusive rights, including free-to-air rights, due to its financial strength, eMedia claims in heads of argument to the tribunal seen by TechCentral. It also accuses MultiChoice of anticompetitive behaviour in sublicensing agreements, exemplified by the restriction that prevented Openview from carrying the Cricket World Cup and Rugby World Cup last year.

The Openview restriction limited the SABC from broadcasting the matches on Openview, with MultiChoice using its market power to compel the SABC to accept this, eMedia claims.

MultiChoice conduct

“The tribunal should also take into account that MultiChoice’s conduct is particularly shocking in that it affects not only the public broadcaster and its only meaningful competitor, eMedia, but also has a substantial detrimental impact on members of the public and infringes fundamental constitutional rights in the process,” eMedia says in the heads of argument.

“It is submitted that this relief is both reasonable and just as envisaged in section 49C of the Competition Act, and that eMedia has made out a case for the interim interdict sought.”

eMedia is seeking to recover its own legal costs as well as the costs of three counsel.

Read: eMedia withdraws rugby rights high court challenge

Meanwhile, MultiChoice has responded vigorously in its own heads of argument, saying that “eMedia clothes its complaint in ornate competition garb”.

“None of eMedia’s competition law complaints has 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, and from thereby being able to negate the competitive advantage that MultiChoice Group is entitled to derive from the investments that it has been willing to make in such rights”.

MultiChoice admits that exclusivity is the primary competitive tool by which it attracts subscribers. It obtains exclusive rights to content that it thinks audiences will value sufficiently to pay for by subscribing to the DStv service.

And it says Icasa has recognised this, noting that exclusivity is “the primary basis on which these services will attract and retain subscribers” and that “some forms of exclusive arrangements in the broadcasting industry are, therefore, both efficient and desirable”.

In an earlier affidavit, to the high court, MultiChoice South Africa CEO Marc Jury said eMedia’s case was a “classic example of free-riding — seeking to profit off another’s expense without contributing at all”. – © 2024 NewsCentral Media