Brokering for broadcast rights: Australian Government’s review of the anti-siphoning scheme

Taking into account the changing viewing habits of Australians in the digital era, the Australian Government aims to make amendments to the anti-siphoning scheme to ensure access to “iconic events” remain free to the Australian public. That’s the impetus for its recently announced review into the scheme, governed by the Broadcasting Services Act 1992 (Cth).

In its consultation paper, the Government has stated that the purpose of the review is to “examine the role and impact of the scheme in the contemporary media environment.” With the current anti-siphoning list due to expire in April 2023, the consultation process will also assist with the development of a new list.

What is the anti-siphoning scheme?

The anti-siphoning scheme was introduced to address the rise of pay television broadcasters and concerns that “events of national importance and cultural significance” would be increasingly licensed to broadcasters requiring subscription access. It thereby initially aimed to increase the likelihood that major events would be televised by free-to-air broadcasters, and subscription television would complement and expand free-to-air coverage.

It does this by regulating the order in which the rights to televise events on the so called ‘anti-siphoning list’ may be acquired by television broadcasters. The scheme operates as a licence condition for subscription television broadcasters, preventing them from acquiring the right to televise an event on the anti-siphoning list unless:

• a national broadcaster (ie. the ABC or SBS) has the right to televise the event on any of its broadcasting services; or
• commercial television broadcasting licensees whose television services cover more than 50% of the Australian population have a right to televise the event.

The anti-siphoning list specifies events the televising of which should, in the Minister’s opinion, “be available free to the general public”. The current anti-siphoning list is the Broadcasting Services (Events) Notice (No. 1) 2010 (Cth), which contains only sporting events, such as the Olympic Games, Melbourne Cup and the AFL Premiership competition.

It is not mandatory for free-to-air broadcasters to buy the rights to these events, or once bought, to televise the events. Also, the scheme does not prevent the on-selling of some, or all, rights to an event on the anti-siphoning list to a subscription television broadcaster or any other content service provider.

An event will be removed from the anti-siphoning list 26 weeks before it is due to begin, unless the Minister makes a declaration to retain the event on the anti-siphoning list (overriding automatic delisting).

Addressing the rise of online streaming

A major impetus for the review into the anti-siphoning scheme is the changing contemporary media environment. When the scheme was first introduced in the 1990s, the rise of so-called “Over-The-Top” online streaming services had not yet been contemplated. As such, the existing anti-siphoning legislation does not apply to online streaming providers, allowing for the exclusive acquisition of broadcast rights by these services. Whilst this form of acquisition is currently seen as a “moderate” trend and has related mostly to the broadcast of sports commanding lower audience numbers, the government is considering whether the scheme should be extended to online services and digital platforms.

It should be noted that in September 2022, after a period of consultation, the government introduced the Broadcasting Services (“Broadcasting Service” Definition—Exclusion) Determination 2022 (Cth). The 2022 Determination extends the operation of the 2019 Determination, and its precursor instrument known as the "Alston Determination"  which exclude online television simulcasts, online ratio stations and live-streaming on social media and other digital platforms from the legislative definition of "broadcasting service". As the 2022 Determination is operative until 15 September 2027, any proposed change to the anti-siphoning scheme will need to be considered in the context of online streaming services remaining "non-broadcasters", at least in the short term.

The appropriateness of acquisition

The current anti-siphoning scheme operates under an acquisition model, requiring broadcasters to seek to acquire the rights to various television events. The government seeks feedback on whether a “conferral-based” or “offer-based” system would instead be more appropriate.

Under a conferral-based system, the scheme would explicitly restrict a party (such as the AFL) from conferring the rights to televise an event, until those rights had been conferred to a free-to-air broadcaster. Comparatively, under an offer-based system, a party would be restricted from offering a right to televise an event until an offer had been made to a free-to-air broadcaster. Unlike a conferral-based system, an offer-based system would not require a right to be actually conferred to a free-to-air broadcaster, instead free-to-air broadcasters would simply be granted the right of first refusal.

Unlike the existing acquisition system, both these alternate models would shift the regulatory obligation from the party acquiring the right to the party conferring or offering the right. According to the consultation paper, such a shift would be advantageous if the scheme is extended to online subscription services. At present, online entities do not operate under a broadcasting licence and are not considered broadcasting services. As such, the government is considering whether it would be simpler to regulate the conferral or offer of rights, as opposed to acquisition, where entities do not hold a broadcasting licence.

Regulating use and coverage

The government also seeks consultation on the lack of requirements concerning how a free-to-air broadcaster should deal with the rights they have acquired. Whilst the government still seeks feedback on this point, the consultation paper recognises that concerns around free-to-air broadcasters failing to provide extensive coverage of events may have diminished in the context of an increasingly competitive media environment and the ability for broadcasters to now operate various digital multi channels. In particular, the government seeks views on whether broadcasters should be obligated to cover events to their fullest extent or provide live coverage.

The government has also raised the issue of allowing entities to “on-sell” broadcast rights. Currently, non-broadcasters (such as an online streaming services) can acquire the rights to an event, hold the rights until the event is automatically delisted, and then on-sell the rights to a subscription television licensee. This ‘loophole’ has been flagged by the government as potentially limiting free public access to television coverage.

Ensuring transparency

At present, the anti-siphoning scheme does not require entities subject to the scheme to disclose information regarding the acquisition and utilisation of broadcast rights to regulatory bodies such as the Australian Communication and Media Authority. Acknowledging that this would likely impose compliance costs on reporting entities, the government is seeking feedback on the utility of disclosure requirements, particularly if the scheme was to operate according to an “offer-based” rule or if coverage requirements were imposed.

Re-considering the anti-siphoning list

The current anti-siphoning list is compiled of eleven sports of differing audience size, frequency and duration. The government seeks feedback on the nature of the sports included on the current list. In particular, the consultation paper notes the exclusion of women’s sporting competitions, such as the AFLW. Feedback is also sought on whether any non-sporting events that hold a particular place in the national consciousness should be included on the new list.

In light of the diversity of sports included on the list, the government has flagged the potential for implementing a system of differentiated regulation, for example. the creation of a “two-tier” list. Tier 1 events, or those with very clear national significance could attract the strongest form of regulation (such as mandating live coverage) to promote free access. Conversely, Tier 2 events that do not hold the same level of national importance could allow for greater opportunity of access for subscription-based broadcasters by for example, being subject to longer delisting periods.

On that topic, the Government also seeks general feedback on extending the current delisting timeline of 26 weeks prior to the commencement of the relevant event. The timeline was recently extended in 2017 from 12 to 26 weeks, affording subscription broadcasters greater opportunity to access television rights to relevant events. Further review will be undertaken into whether the 26-week period remains appropriate, noting that in the contemporary media environment, rights deals are often struck far in advance of this deadline.