Judge asks WIN whether new technology has ‘turned out to be a plague on you’ in 9Now case

WIN NineRegional TV Network WIN has said it is “vital” its metropolitan affiliate Nine stops live-streaming into its licence areas as “we need their content in order for us to make money”.

On the second morning of the case, WIN’s barrister Tony Bannon SC argued the term ‘broadcast’ should be interpreted to cover both free-to-air TV and live-streaming, telling the court: “It means to disseminate”.

“As your Honour pointed out, we have nothing without their content. It’s medium non-specific but the key is we have to be the only ones selling eyeballs to that content.”

However, in the NSW Supreme Court, Justice David Hammerschlag questioned this interpretation, referring to the wording in the affiliate agreement, asking: “Is it not what the parties mean? Is it not, rather, broadcasting in the sense of the (Broadcasting Services) Act and then a new method arose and it turned out to be a plague on you?

“Clearly you are not happy with it, and I can fully understand that… but if the parties had even contemplated it, it would be covered for gratis.”

Bannon responded that the agreement covered all aspects of broadcast within WIN’s geographical licence areas: “What is reflected is that it is new technology. To educate advertisers will take time.

“It is essential that we stop them internet-streaming into our area… the programming with their ads is contrary to the commercial agreement. We need their content in order for us to make money.

“Nine was selling WIN the right to sell its programming and achieve advertising revenue from it.”

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Nine’s barrister Noel Hutley contested WIN’s definition of broadcast, directing the court to the Program Supply Agreement from 2009 which defined broadcast as ‘terrestrial free-to-air television’ and excluded other technologies “by means known now or hereafter existing”.

“On its true construction it is only concerned with the exploitation of its content through its free-to-air terrestrial licence,” Hutley told the court.

Nine also referred to one of its affidavits in which it claims that during the most recent round of negotiations in December 2015 WIN CEO Andrew Lancaster sought change to the Program Supply Agreement in a way that would have then given them the right to live-streaming in their areas.

“There has been discussions about whether WIN might gain access to a broader set of rights,” said Hutley. “My client rejected that and this was accepted by them.

“What happened from here is that WIN has never put forward an agreement for anything other than the free-to-air rights. There has been one subject (only) – the free-to-air rights.”

A separate legal stoush over whether or not 9Now would work on Smart TVs saw WIN seek to bring an internet-enabled TV into the court. However, Nine opposed the move.

Justice Hammerschlag ruled that it could be set up in an office across the court with the parties eventually agreeing that 9Now worked on some smart TVs.

However, Hutly noted: “Not all programming that appears on Nine will appear on 9Now, for example, the NRL (which Nine does not have the digital rights to).”

Later in the afternoon, Nine’s barrister Hutley told the court that despite a failure to include a clause excluding new forms of technological broadcast in the most recent affiliate deal: “It is past believing that any person looking objectively at these negotiations would conclude that these parties were negotiating for the free to air rights.

“That’s how it started, that’s how it ended.”

Final arguments will resume tomorrow. Justice Hammerschlag is expected to hold over his judgment until mid-April.

Nic Christensen


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