Big changes coming for sports broadcast rights in South Africa

The Department of Communications and Digital Technologies wants to empower the government to have a hand in determining which sports events should be declared events of national interest, challenging the exclusivity of their broadcast rights.

This is one of the proposals laid out in the department’s draft white paper on Audio and Audiovisual Media Services and Online Content Safety, published for public comment on Monday (31 July).

According to the department, “sport of national interest” has become a thorny issue in South Africa not just for accessibility by the public, but also for the promotion and development of these sporting codes.

“To ensure the public continues to enjoy free-to-air and free-to-view access to listed events, the listing of national sporting events which are in the public interest will be extended to include the broader Audio and Audiovisual Content Service (AAVCS) market,” it said.

The paper proposes that a new set of regulations be introduced to give the regulator clear guidance in legislation on the criteria to use in determining the list of sports that qualify as being in the “national interest” – while also extending the scope to include other events of major public importance or cultural significance for example, presidential inaugurations or state funerals.

While the government doesn’t plan to interfere with broadcasters’ rights to bid for licences – as these can be fundamental to the commercial viability of certain services – some sporting events will need to be sub-licenced to free-to-air broadcasters.

The department noted that there are already legislative mechanisms in place to ensure that national sporting events identified as being in the public interest are aired free-to-air and not only over subscription services.

However, recent events suggest that the regulator – ICASA – struggles with determining which events should be on the list.

Thus, it is being proposed that the minister of Arts, Culture and Sports, in consultation with the minister of Communications and Digital Technologies, come up with the list.

To qualify as being of “national interest”, the following criteria must apply:

• The event must involve the South African senior national team (i.e., the most senior official South African team) or an individual representing the Republic.

• The event must be in a major sport, taking into consideration the number of South Africans who play it and/or watch it at the venue or on television, or listen to radio coverage.

• The event must be of major importance to South African society, and not just to those who ordinarily follow the sport.

• The event is appropriate to list, given its structure and duration.

• The event takes place in South Africa. The only events which take place outside South Africa which should be eligible for listing are international confederation sporting events such as a World Cup or Olympic event in which a South African team or individual is representing the Republic.

Other notable proposals around sports broadcast rights include:

• This Draft White Proposes the listing of national sporting events which are in the public interest should apply in legislation not just to broadcasting but also to the broader AAVCS market to ensure the public continues to enjoy free-to-air and free-to-view access to listed events.

• To ensure fair competition, the Draft White Paper proposes that sports broadcasting rights of listed events must be granted after an open, transparent, and non-discriminatory bidding process and for a period of no longer than five years to allow the AAVCS provider a reasonable time to recoup the investment in the rights.

Backwards approach

Multichoice, which currently has exclusive broadcasting rights over many sporting events and makes them available through its DStv product – often on the most expensive package – disagrees with the proposals.

According to the white paper, the group argued that identifying the specific national sporting events is the responsibility of ICASA, which was established as the independent regulator, and is responsible for the regulation of broadcasting.

The group said that the identification of national sporting events in the public interest is, therefore, a function to be performed by ICASA.

According to Multichoice, ICASA is required to identify national sporting events in the public interest after consulting the Minister of Communications and the Minister of Sport – not the other way around. This obligation to consult the Ministers ensures that ICASA takes policy considerations into account.

While it is appropriate for ICASA to consult the Ministers, it would not be appropriate for the ministers to become responsible for the listing instead of ICASA.

However, the white paper noted that the ministers must be involved as the list of “national interest” is a political decision rather than a regulatory one.

“ICASA has recently issued regulations on sports events of national interest, and the legislative review following the final White Paper will provide the ministers with proper powers in relation to the list of sports events of national interest as this is truly a political rather than a regulatory decision,” it said.

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