Watching sports on TV and other screens is a vital part of the cultural lives of many Australians. In 1995, the anti-siphoning scheme was implemented to ensure that “events of national importance and cultural significance” in sports wouldn’t be exclusively broadcast on pay TV, disadvantaging free-to-air access. Since then, television has undergone significant changes, and this legislation from the analogue era is becoming outdated in the current digital media age.
Notably, streaming services like Netflix and Amazon are not included under the current rules that restrict pay broadcasters like Foxtel. Before the 2022 election, the federal government pledged to review the anti-siphoning scheme. The Communications Legislation Amendment (Prominence and Anti-siphoning) Bill 2023 was introduced to address the “regulatory gap” that developed in media law since Netflix launched in Australia in 2015. The Senate assigned the bill to its Environment and Communications Legislation Committee. The release of its report will influence Australians’ accessibility to sports media content. “Prominence” refers to how easily apps like Netflix or 9Now can be discovered on the homepage of smart TVs.
The federal government is concerned that international services like YouTube and Amazon, through commercial agreements, are prominently displayed on smart TVs, effectively overshadowing Australian free-to-air channels. During Senate hearings, for example, public broadcaster SBS mentioned that a TV manufacturer required both a placement fee and a 15% revenue share to be featured on the TV’s homepage. Prominence is essential in sports because the anti-siphoning legislation upholds the idea that, despite its general decline, free-to-air TV remains the most efficient, affordable, and accessible way to deliver premium sports to most Australian households.
Although subscription media companies and many sports critique anti-siphoning laws as anti-competitive, these laws are largely why major sports remain widely available on free TV. As a sign of potential future risks, International Cricket Council World Cups will no longer be available on free-to-air TV from 2024 to 2027, following an exclusive four-year agreement with the streaming service Amazon. In 2022, the AFL reportedly held discussions with Amazon during its media rights negotiations. Loopholes within the scheme are increasingly being exploited. This issue was highlighted in 2018 when Australian one-day international cricket matches were no longer freely available, despite being listed as free-to-air events.
As Foxtel stated at the Senate hearing, both Nine (Stan) and Ten (Paramount+) have evolved into hybrid networks, capable of shifting sports from free-to-air broadcasts to behind a streaming paywall. Presently, free-to-air networks are not obligated to acquire sports rights, broadcast them if they do, or refrain from selling them to a pay platform. The Senate report largely supported the government’s proposed draft. Regarding prominence, it suggests that free-to-air channel “tiles” should be prominently visible on new smart TVs. The committee recommended a 12-month phased implementation for prominence, applicable only to new TVs. The committee also generally accepted the draft’s anti-siphoning provisions, impacting where and how sports are viewed by fans. The listed events will be expanded by 30%, incorporating more women’s and parasports, such as the AFLW and NRLW finals, NRLW State of Origin, and the Summer Paralympic Games. To balance benefits for subscription broadcasters, sports not acquired by free-to-air broadcasters will become available faster to subscription services, 12 months prior to an event rather than six. This change will allow subscription platforms more time to plan and promote their content schedules. The most controversial recommendation concerns the extent of anti-siphoning laws, which influences how Australians access sports in the medium term.
It supports the government’s view that, due to an excessive competitive advantage, anti-siphoning should only apply to terrestrial broadcasting, not including digital rights for live streaming through broadcast video-on-demand apps like 9Now, Seven+, iView, and SBS On Demand. Commercial free-to-air broadcasters termed this as a “nightmare scenario”, fearing that 50% of households will be streaming TV online by 2027. Without TV aerials, major sports events on free-to-air TV might not be available to viewers. While terrestrial TV remains the most broadly available platform for sports, new housing developments don’t typically have aerials installed. However, Australian Communications and Media Authority research counters the networks’ claims about the disappearance of TV aerials. As one reason for the anti-siphoning reforms is modernization, the strategic compromise on broadcast video-on-demand apps will be closely examined. Importantly, a minority report from the Greens expressed dissatisfaction with the bill, stating it did not adequately address prominence or anti-siphoning, and they reserved the right to oppose it unless it is amended to prevent global corporations from monopolizing Australian sports rights.
To enact the amended bill, it must pass through Parliament, and the final form and outcome of any changes are still uncertain. Although it is broadly agreed that measures are necessary to ensure free access to sports on screens, there is significant disagreement among various stakeholders on the appropriate actions now and in the future.