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The nature and purpose of the regime

The point of both Articles 14 and 15 of Directive 2010/13, in short, is to leave space in the internal market framework governing an integrated broadcasting market for intervention to ensure that certain events are not to be sold exclusively to providers that are not free-to-air. It was the rise of ‘pay-TV’ that was the main anxiety, though technological advance has widened the relevant types of content provider. What is loosely at stake here is the perception that the commercial virtues of exclusivity as a means to maximize the attraction of and consequently the revenue raised from the sale of rights requires the possibility of modification where the value of dissemination of information carries particular weight. This is, however, to presuppose some form of balancing between interests that compete: mandatory loosening of exclusivity reduces the value of rights and so shifts resources away from rights holders to citizens generally. This is the tension at the heart of the regime.2°2 It entails that commodification of sports events is limited. The subjection of private rights to action taken in the public interest is a perfectly familiar feature of modern democracies, but the calculation of why this should be done should be laid bare.

The lack of legal precision has been exposed. The reason for this ambiguity is largely the accompanying lack of policy precision.

A 1996 Resolution of the European Parliament declared ‘it essential for all spectators to have a right of access to major sports events, just as they have a right to information’.2°3 But what of the costs that right holders incur as a result of the legal designation of such a ‘right’, which presumably in turn reduces the funding available to improve the quality of the product? This unbalanced attitude seems to have carried influence in the negotiation that led to the creation of the protected events procedure when the original 1989 Directive was revised. So in this vein Recital 18 to Directive 97/36 refers to a ‘right to information’ and to ensuring ‘wide access by the public to television coverage’ of events of major importance to society. This is now taken over and absorbed in the Recitals to the currently applicable measure, Directive 2010/13. They assert the cultural worth of audiovisual media services alongside their economic role7°4 They assert too the importance of freedom of information, diversity of opinion, and media pluralism, including recognition of the role in this vein of Article 11 of the EU Charter of Fundamental Rights.2°5 Article 11 directs (inter alia) that ‘Everyone has the right to ... receive and impart information and ideas without interference by public authority and regardless of frontiers’, which mirrors Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The Court too has been content to adopt this reasoning to reject a challenge to the Directive’s validity on the basis that the legislature had validly concluded that obstacles were justified by [1] [2] [3] [4]

the objective of protecting the right to information and ensuring wide public access to television coverage of the events in question.206 This litigation is considered further later.

Information is power and the discourse of fundamental rights is deservedly prominent in analysis of law and policy in the broadcasting sector.207 The promotion of pluralism in media markets has an intimate connection with sustaining the vibrancy of our democracies. And there is no constitutional objection to the ‘decisive factor’ in an EU measure of legislative harmonization being formed by a regulatory concern recognized by the Treaty such as the promotion of culture, provided only that the measure also serves to promote the functioning of the internal market, here in the broadcasting sector.208

The commercial impact of this regime is very real. Central to the narrative of this chapter is that growth on the demand-side of the market for the rights to show major sporting events, supply of which is limited, has led to dramatic price increases in recent years. This is deregulation combined with technological advance, which breeds commodification. Free-to-air broadcasters may be priced out of the market by eager subscription-based suppliers. So, for perfectly obvious reasons of self-interest, in the consultation process on reform of the regime conducted by the Commission in 2003, the BBC stressed the ‘crucial’ importance of access to events of major importance and pressed that the scheme ‘should be maintained and, possibly, strengthened’^09 and the subsequently produced Commission Communication entitled ‘The Future of European Regulatory Audiovisual Policy’ noted a clear division between private broadcasters, critical of the regime, and more eagerly positive public service broadcasters^^ The designation of a sporting event by a national government as ‘listed’ helps the free-to-air broadcaster and its viewers, but it means that because the right holder is prevented from selling untouchably exclusive rights, the value to the subscription-based broadcaster is decreased and so the price that the sale will command will typically fall. It is certainly not inevitable that the right holder will be prejudiced by these rules on ‘protected events’—a sports body might on occasion be pleased to find that free television is required to show an event because this maximizes the audience for its sport and through such added exposure

  • 206 Case C-201/11P UEFA v Commission, paras 102—104, Case C-204/11P FIFA v Commission, paras 110—12, and Case C-205/ 11P FIFA v Commission, paras 126—27, judgments of18 July 2013.
  • 207 See generally R Craufurd Smith, Broadcasting Law and Fundamental Rights (Clarendon Press 1997); J Oster, Media Freedom as a Fundamental Right (CUP 2015); see also R Parrish and S Miettinen, ‘Sports Broadcasting and Community Law’ in I Blackshaw, S Cornelius, and R Siekmann (eds), TV Rights and Sport: Legal Aspects (TMC Asser 2009).
  • 208 eg Case C-380/03 Germany v Parliament and Council [2006] ECR I-11573; Case C-210/03 Swedish Match [2004] ECR I-11893; Joined Cases C-154/04 and C-155/04 Alliance for Natural Health [2005] ECR I-6451; Case C-58/08 Vodafone, O2 et al v Secretary of State [2010] ECR I-4999; Weatherill (n 33) ch 13. I Katsirea, ‘Why the European Broadcasting Quota should be Abolished’ (2003) 28 EL Rev 190 adopts a contrary view, but now seems to have been overtaken by the Court’s accumulated case law.
  • 209 accessed 29 November 2016.
  • 210 COM (2003) 784, para 3.3.

attracts more sponsors and, in the longer term, more public affection for the event in particular and the sport in general. A suggested example is the Epsom Derby7n However, although the regime does not prevent the sale of rights to a pay-per- view broadcaster, it does entail that a grant of exclusivity is conditional on the—as explained, ambiguous—impact of national choices recognized by the Directive, and so a common complaint is that the value of the rights is tarnished. Cricket’s governing body successfully resisted suggestions that live Test Match coverage, sold on an exclusive basis to SKY from 2006, should be mandatorily restored to free-to- air access for games against Australia by claiming that the value of the rights would have been diminished by ?137 million.212 Inhibited exploitation of an extraordinarily lucrative market is likely to diminish the level of investment in the quality of the product, which is likely to be to the detriment of consumers^3

But the rules improve citizen access to major events. The right of the public to receive information lies comfortably within the scope of Article 10 ECHR and Article 11 of the Charter. There is scope to interpret this right as capable of application to freedom of information in connection with sporting events: big sporting events are popular and may even count as an element in fostering a shared sense of experience and community, tending towards national pride and identity. On the other hand, to garland such events with the status of a facility to which the public is entitled to access would feel exaggerated even were the EU regime on protected events carefully tailored to such aims, but given its voluntary and fragmented nature it is a stretch too far to seek to justify it in the language of fundamental rightsH4 Even more critically, one may go so far as to condemn such an approach to the glorious triviality of sport as apt to demean the quality and dignity of discourse about fundamental rights.

So the EU’s regime asserts a peculiarly shaped intrusion into the commodification of sport and, moreover, it disturbs affected broadcasters’ own claims to freedom of expression. It is frankly troubling that this occurs in the absence of any clearly articulated policy, which explains just why this reduction in commercial and sporting autonomy is thought appropriate. The regime represents a brittle compromise between the virtues of open markets and of public interest regulation. The language of fundamental rights seems to fit the Article 15 regime on short news reports a great deal more readily than it fits Article 16 on listed events of major importance. It is hard to believe that Article 14 of Directive 2010/13 and the state choices it seeks to protect deserves elevation to a status whereby the state is treated

  • 211 G Wood, ‘Downgrading the Derby could be Long-Term Turn-Off’ The Guardian (London, 17 November 2009) Sports section, 9.
  • 212 ‘Ashes on Free TV “Will Cost ECB ?137m” ’ The Independent (London, 20 March 2010) 21. It is noted that ‘ECB officials resent cricket being handed back to it [the BBC] on a golden platter’; ‘... the return of Test cricket to terrestrial television ... would be a disaster!’, Chairmans Report, Annual Report and Statement of Accounts for the year ended 30 September 2009 of Gloucestershire County Cricket Club, 2.
  • 213 eg K Lefever and B Van Rompuy, ‘Ensuring Access to Sports Content: 10 Years of EU Intervention. Time to Celebrate?’ (2009) 2 Journal of Media Law 243, 264—66.
  • 214 By contrast see Lefever (n 20) who would make the stretch, especially at 71, 98—99, 239—40, 314.

as fulfilling a positive obligation to ensure its citizens have access to the World Cup and the Olympic Games on free-to-air television. Much of EU sports law involves a sceptical assessment of inflated claims to autonomy made by governing bodies: in this instance the scepticism is deservedly aimed at the basis for interfering with that autonomy.

  • [1] cf R Parrish, Access to Major Events on Television under European Law’ (2008) 31 Journal ofConsumer Policy 79.
  • [2] Resolution on the broadcasting of sports events [1996] OJ C166/109.
  • [3] Audiovisual Media Services Directive (n 174) Recitals 5, 6, and 7.
  • [4] ibid Recitals 5, 16, 48, 49, and 55.
 
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