Supreme Court dismisses WIN's case against Nine

Arvind Hickman
By Arvind Hickman | 28 April 2016

The NSW Supreme Court has ruled that Nine Now streaming service into WIN territory or does not constitute a broadcast.

Justice David Hammerschlag has today (28 April) dismissed WIN's proceedings against Nine.

WIN brought the civil case against Nine arguing that the 9Now AVOD player was broadcasting content into its geographical region, which was in breach of the affiliate partner agreement between the two broadcasters.

Immediately after the short and swift proceedings, Nine spokesperson said: “We're very pleased with the results and our vindication.”

AdNews understands that in the ruling, Justice Hammerschlag said that a broadcast only refers to Free To Air and that nothing in the commercial agreement between the two parties prohibited Nine streaming through 9Now.

It's a result that was widely tipped by legal observers and media commentators as WIN's case hinged more on its sense of injustice rather than any tangible evidence that proved streaming was ever part of the affiliate agreement.

WIN previously told the court that 9Now content affected its ability to attract advertising revenue, a sentiment that has been echoed by other regional broadcasters at a recent senate hearing. Regional advertising decline has been far heavier than in metropolitan regions.

However, Nine told the court that Nine Now was not part of the geo-block and that streaming is not broadcasting as per Australian law.

UTS professor Derek Wilde, who gave evidence at the same hearing, recently told AdNews the definition of a broadcast is clear - streaming is not a broadcasting service under the Broadcasting Services Act.

If the court had ruled in favour of WIN it would require the law to be ripped up and redrafted to reflect this new definition.

Now the spotlight turns back to Mitch Fifield's media reforms, after the minor distraction of a general election.

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