Satellite Row Remains Live
Tods Murray look at the latest legal position surrounding live football broadcasts in pubs. This article first appeared in the October 2008 edition of the Scottish Licensed Trade News.
Live football is big business for pubs. But the cost of commercial SKY packages is such that, even without these troubled economic times, a licensee will have to think seriously before signing up. Some have turned to “alternative” ways in which to provide coverage and the question of the illegal broadcasting of live football is very much a “live” issue. The relevant legal provision here is s.297(1) of the Copyright, Designs & Patents Act 1988 which created the offence of fradulently receiving a transmission, and states: “A person who dishonestly receives a programme included in a broadcasting or cable programme service provided from a place in the UK with intent to avoid payment of any charge applicable to the reception of the programme commits an offence”.
In an effort to avoid the high commercial prices associated with providing live football, some licensees have sought to provide the service by using a domestic card. FACT (The Federation Against Copyright Theft) has advised that every case it has taken on against a licensee under these circumstances has resulted in a prosecution. Several English licensees have been stripped of their personal licences after using a domestic satellite card in their premises; and in one case a licensee paid Sky TV £14,308 in an out of court settlement.
The matter is not so straightforward when the live football is being beamed in from a satellite provider in a foreign jurisdiction. In the famous recent test case, English licensee Karen Murphy was succesfully prosecuted under s.297(1) after providing live football via a Greek satellite company (Murphy v Media Protection Services Ltd [2007] All ER (D) 382 (Dec); [2007] EWHC 3091 (Admin) – see also Football Association Premier League Ltd v QC Leisure [2008] 3 CMLR 12). A subsequent appeal also failed(Murphy v Media Protection Services Ltd [2008] All ER (D) 206 (Jul); [2008] EWHC 1666 (Admin)), but elements of the decision were referred to the European Court of Justice (ECJ) and as a result it would appear that the matter is not yet resolved. The question for the ECJ, in simple terms, is whether the geographical restriction in s.297 is lawful. If found to be unlawful, the offence under s.297 could not be established and in turn it could be legal to provide live satellite football from a foreign provider.
After the appeal decision, both sides claimed victory. The FA Premier League pointed out that the appeal had been lost and Ms Murphy was still guilty of an offence under s.297; but agents for Ms Murphy said: “The FA Premier League should immediately abandon its campaign of criminal prosecutions against honest, decent and hardworking publicans who purchase and use legitimate European satellite television decoder cards in their pubs”.
The argument is far from over. On 30th September 2008, two cases before English magistrates were adjourned to allow for the result of the ECJ on the Murphy case. In one, District Judge Prowse said : “ [T]he Murphy case may have a dramatic impact on the outcome of this case. It does not seem to me right to go any further with this case until the ECJ has made a decision ”. It could be two years before we have that decision.
A debate will be heard in Parliament on this matter on 20th October 2008, led by MP John Grogan , and Ofcom has launched a consultation on the SKY monopoly, saying that “it is particularly important that the prices paid by consumers are determined by competition between different suppliers”; and the suggestion is that Sky should be forced to sell its premium content to rivals at wholesale prices.
Licensees should note that the fraudulent reception of transmissions is a “relevant offence” under the Licensing (Scotland) Act 2005.
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