Anti-siphoning reforms and new prominence framework

By Martin Ross, Mark Lebbon and Loren Alderuccio

On 4 July 2024, the Australian Parliament passed the Communications Legislation Amendment (Prominence and Anti-siphoning) Act 2024 (Cth) (Act). The Act largely reflects the Communications Legislation Amendment (Prominence and Anti-siphoning) Bill 2023 (Cth) (Bill), which was introduced in the House of Representatives in late November 2023.

The Act amends the Broadcasting Services Act 1992 (Cth) and the Australian Communications and Media Authority Act 2005 (Cth) by:

• expanding the scope of the anti-siphoning scheme; and
• introducing a new prominence framework for connected televisions in Australia.

Schedule 2 of the Act contains the reforms to the anti-siphoning scheme. Schedule 1 contains the new prominence framework. The key changes arising from the Act are summarised below.

Anti-siphoning scheme

The anti-siphoning scheme was introduced in Australia in 1995. Under the existing scheme, subscription television licensees (such as Foxtel) are prohibited from acquiring the right to televise certain listed sporting events until a commercial free-to-air broadcaster or a national broadcaster (ie ABC or SBS) has the right to televise the listed event.

Listed events

The relevant minister^[1]determines the events that are protected under the anti-siphoning scheme through the publication of a legislative instrument.

As part of the current reforms, the government intends to introduce a new list that will include additional events on the list. No events are proposed to be removed from the list. The new list will reflect the ‘modernised list’ identified in the government’s 18 August 2023 Proposal Paper.^[2]

The new and expanded list will increase the number of events regulated under the scheme by approximately 30 per cent (from around 1900 to around 2500 events).^[3]Some events that will now be covered by the scheme are:

• the finals series matches of the AFLW Premiership;
• the finals series matches of the NRLW Premiership; and
• the NRLW State of Origin Series.

The new list also provides that the complete men’s and women’s Ashes cricket series played in the United Kingdom are protected under the scheme.

These changes follow amendments in 2023 to include certain FIFA women’s World Cup matches on the list.

Extension of scheme to online and digital platforms

The existing anti-siphoning scheme did not apply to online and digital media including:

• subscription streaming services, such as Netflix and Amazon Prime Video;
• dedicated sports streaming services, like Kayo Sports and Optus Sport;
• broadcasting video on demand (BVOD) services, such as 9Now and 7plus; and
• digital platforms, including Twitter and YouTube.

The scheme has been expanded to prevent online and digital platform operators from acquiring the right to provide coverage of a listed event in Australia until a national broadcaster or a commercial television broadcasting licensee has acquired a right to televise the listed event on a television broadcasting service.

This change extends the scope of the restriction on the acquisition of rights under the existing scheme, which currently only applies to subscription television broadcasting licensees, to now cover and restrict the acquisition of rights by online and digital platform operators.

The changes will not prevent a national broadcaster or a commercial television broadcasting licensee from acquiring digital rights for a listed event for their digital platform at the same time as acquiring the free to air television rights.

Time for automatic delisting

When these reforms were originally introduced to Parliament, there was a proposal to change the time for events on the anti-siphoning list to be automatically delisted 12 months prior to their commencement. The anti-siphoning scheme does not apply to a delisted event. However, at a late stage in the legislative process, this proposed change was withdrawn. The period for automatic delisting of events will remain at six months.

Review of anti-siphoning scheme

The minister is required to cause a review to be conducted of the operation and effectiveness of the anti-siphoning scheme as soon as practicable after the end of two years from the commencement of the Act.

Prominence framework

The Act also introduces a new ‘prominence framework’, which seeks to regulate the accessibility and prominent display of Australian television channels on new television devices that are supplied to the Australian market.

The new laws apply to television devices capable of providing access to video on demand services (ie internet connected devices) and that are designed for the primary purpose of facilitating the viewing of audiovisual content (known as ‘regulated television devices’).

Under the new framework, ‘regulated televisions services’ are to be given prominence. ‘Regulated television services’ include those provided by the ABC, SBS, Seven, Nine and Ten and by their broadcasting video-on-demand (BVOD) services: ABC iView, SBS On Demand, 7plus, 9Now and 10play.

Radio services have not been included in the prominence framework but will be considered for inclusion as part of ongoing reviews.

The prominence framework requires manufacturers of regulated television devices to ensure that:

• regulated television services are pre or auto-installed on relevant devices;
• there is a single tile for each of these services visible on the primary user interface; and
• tiles are of similar size and shape to other comparable applications and located in the same area.

The key prominence requirements are known as the ‘must carry obligations’. These obligations require manufacturers of regulated television devices to:

• not supply devices in Australia if they do not comply with the minimum prominence requirements;
• take reasonable steps to ensure devices continue to comply with the prominence requirements after they are supplied;
• not charge a regulated television service provider in relation to the device complying with the prominence requirements; and
• take reasonable steps to ensure that the audiovisual content provided by a regulated television service is not altered or interfered with.

The prominence framework will apply to devices supplied after the date that is 18 months after the Act commences.

The Act provides the Australian Communications and Media Authority (ACMA) with powers to enforce the framework.

Review of the prominence framework

Like the anti-siphoning scheme, the prominence framework will be reviewed as soon as possible after the end of two years from the commencement of the Act.

Penalties

Under the Act, significant penalties will be imposed for contraventions of the new anti-siphoning scheme and the prominence framework. For a body corporate, the maximum penalty for breaches of these laws is the greater of:

• 10,000 penalty units (AU$3.13 million at the current penalty unit rate);
• three times the value of the benefit obtained as a result of the contravention; or
• 2% of the annual turnover of the body corporate during the previous 12 months, if a court cannot determine the value of the benefit obtained from the contravention.

Got a question?

Hall & Wilcox has significant experience advising clients in relation to all aspects of media rights, including the anti-siphoning scheme. Please contact Martin Ross or Mark Lebbon if you require assistance or would like further information.

[1] The current relevant Minister is the Hon Michelle Rowland MP, Minister for Communications.
[2] Anti-siphoning Review Proposals Paper.
[3] More than 500 of the additional events are included as a result of including the Summer Paralympics on the list.