Should all South Africans be entitled to watch or listen to all sporting events on television or radio? Is it acceptable for a subscription or regional television or radio broadcaster to acquire the exclusive television or radio rights to broadcast all or some sports events?
Obviously some sports events are of interest to many South Africans, such as the final of the world cup soccer competition in which South Africa plays. If we cannot watch such events because we cannot afford the subscription service or because the event is only broadcast in a small part of South Africa, we will naturally feel somewhat aggrieved. However, there are also some sports events, such as netball and athletics, which are not as popular and thus need protection by our government to ensure that they are in fact broadcast at all, even if only the highlights are shown.
Some policy decisions have been made by our government regarding who can and cannot acquire the exclusive rights to broadcast a sports event. For example, the Broadcasting Act of 1999 provides that subscription services may not acquire exclusive rights for the broadcast of national sporting events, as identified in the public interest from time to time by the Independent Communications Authority of South Africa (ICASA) in consultation with the Ministers of Communications and Sport and in accordance with the regulations determined by ICASA through a public process.
This public process was commenced by ICASA in August last year when a discussion paper entitled “Inquiry into Sports Broadcasting Rights” was made available for public comment. Interested parties (such as broadcasters and sporting associations) submitted comments in response to the discussion paper and public hearings were held towards the end of the year. The outcome of this process is yet to be made public. ICASA has, however, made it clear that it intends to develop a list of national sporting events and an appropriate framework within which to regulate the acquisition of exclusive rights to broadcast such events.
Clearly, therefore, pay television and radio broadcasters will not be entitled to acquire the exclusive rights for all sporting events. ICASA’s decision on which events will fall within the ambit of national sporting events will clearly be a difficult and controversial one. Some events are easy to classify, such as the world cup soccer final in which South Africa plays, but what about the initial games of such a competition?
The framework to regulate these events is also a difficult call for example, when a sporting event is classified as a national sporting event, does this mean that its broadcaster must broadcast the entire event live?
This difficulty is compounded by the fact that the sports industry in South Africa is, to a large extent, funded by the purchase of broadcast rights. The acquisition of these rights is often the only motivation for purchasing access to a subscription broadcaster’s services.
Also, free-to-air radio and television broadcasts are available to much wider audiences than subscription services, for purely financial reasons. In South Africa, according to ICASA, this difference is “particularly stark given the relatively low take up of subscription television and the continued reliance by many South Africans on radio” (ICASA discussion paper, 8 August 2002, page 6).
To add to the debate, consideration will obviously have to be given to whether or not regional radio broadcasters (and perhaps regional television broadcasters too, if such licences are granted by ICASA) should be entitled to acquire the sole rights to broadcast a sports event.
Clearly, these difficult issues need to be overcome by our government in some way. It will, however, be interesting to see how this will be achieved.
Toni Erling is an attorney with Rosin Wright Rosengarten, a firm specialising in entertainment and media law based in Johannesburg.