WIN challenged by judge to prove it can live-stream 9Now on a smart TV in court

Win-nineRegional broadcaster WIN has been challenged to prove it can access Nine’s live-streaming service on a smart TV in court, as it looks to block the 9Now service from operating in its broadcasting areas.

The first day of a three-day court case where the regional TV network WIN is suing its affiliate, alleging that damage is being done to its regional advertiser base through live-streaming, heard mainly technical arguments around how accurately Nine can geolocate users of its service.

Nine’s chief digital officer, Alex Parsons, conceded while it required users to provide their postcode when signing up to the 9Now service he claimed: “We use it to understand where users are coming from. For example, if the The Voice hasn’t screened in Perth then we’re not going to provide it in Perth.” 

WIN, which is owned by Bermuda-based billionaire Bruce Gordon, is demanding that Nine geoblocks its live-streaming service to those areas where it broadcasts so as to not compete with its affiliate stations claiming it breaches its affiliate broadcast agreement.

Asked by WIN’s barrister Tony Bannon SC whether geotargeting advertising, which the network could charge marketers a premium for, was also part of the motivation for Nine Parsons responded: “It’s not currently but it may be in the future.”

Parsons: "We use it to understand where users are coming from"

Parsons: “We use it to understand where users are coming from”

Parsons added: “We do use location to serve advertising to user, but postcode is one aspect.”

The court also heard technical evidence from two IT experts Shane Bell from McGrathNicol, on behalf of Nine, and Rod McKemmish from PPB Advisory, on behalf of WIN, contesting the accuracy of 9Now geolocation targeting and whether it could with 100% accuracy identify a consumer’s location.

WIN in its submissions to the court had suggested that Akamai Technologies, the technology company which Nine uses for its 9Now service, had the ability to identify consumer location with 100% accuracy. Neither party called Akamai and expert witnesses Shane Bell from McGrathNicol on behalf of Nine, and Rod McKemmish from PPB Advisory on behalf of WIN, said they could not speak to high degree of certainty about their technology.

In summarising their testimony, Justice David Hammerschlag noted: “It is suggested by one party that the IP geolocation is not accurate and the other suggests that I cannot find that it is not accurate because we do not have Akamai (Technologies) here.”

Justice Hammerschlag also took issue with some of WIN’s claims that mobile technology could always identify a consumer’s location telling the barristers: “Not every user will have a device with the GPS technology.”

He also expressed his frustration with some of WIN’s technical arguments around whether or not a smart TV could access the 9Now site and live-streaming service.

“If this is a real argument then why not just set a television up in here and let’s see if it works? Why do I have to operate on the basis of a hypothesis,” he said. “If you’re right it might be a powerful point, I don’t know.”

WIN is expected to bring a smart TV into court today to demonstrate that 9Now works if you enter the url on a browser.

At the heart of the case is a 2002 decision by then Communications Minister Richard Alston, who ruled that “streaming is not broadcasting“. WIN contests Nine’s affiliate contract precludes it from live-streaming its content on the internet.

Some TV executives have labelled WIN’s court action an attempt to build “the great geoblock of Wollongong”, in reference to the TV network’s headquarters in Wollongong. If successful the court action would block 9Now in Tasmania, Western Australia and large parts of regional Queensland, New South Wales and Victoria.


Source: ACMA Click to enlarge.Nic Christensen


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