Nine wins streaming battle against WIN

Billionaire Bruce Gordon’s WIN TV has lost a bid to stop Nine Entertainment streaming its programs into regions where WIN holds broadcasting rights for Nine content.

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In a significant ruling, the NSW Supreme Court has ruled that live streaming over the internet is not broadcasting and has rejected WIN Corporation’s bid to block Nine’s internet channels.

WIN had sought to stop Nine transmitting its programs via the internet in areas covered by the WIN stations.

WIN is an affiliate of Nine and holds the license to broadcast the network’s programs in regional areas.

But on Thursday Justice David Hammerschlag ruled that live streaming is not broadcasting within the meaning of the Program Supply Agreement (PSA) between Nine and WIN, and that Nine is under “no express or implied obligation not to do it”.

“WIN’s claim for an injunction must therefore be refused,” he said in his judgement.

NINE went live with its 9Now streaming and video on demand service in late January.

The case looked at whether live-streaming was included in the definition of the word broadcast.

WIN, Australia’s largest regional television broadcaster, had argued that even if Nine was not broadcasting, it was still in breach of an “implied obligation” not to do what it is doing.

Nine has supplied WIN with programming and licensed WIN the right to broadcast it over many agreements dating back to 1987.

The latest agreement, which is due to expire on June 30, grants WIN the exclusive licence to broadcast on and in the licence areas covered by the WIN Stations the program schedule broadcast by Nine on each of its channels.

Justice Hammerschlag identified two meanings of the term broadcast; the first being dissemination of Nine’s programming by any means and the second being terrestrial transmission via the WIN Stations.

He ruled that “broadcast” meant free to air transmission and that the agreement only prevents Nine from broadcasting into regional areas.

“The only exclusivity (WIN) got was to broadcast free-to-air in the WIN licence areas. There is no suggestion that Nine can do this,” Justice Hammerschlag said.

A Nine spokeswoman said: “We are pleased with the result and it vindicates our position.”

Justice Hammerschlag set a directions hearing for costs on May 6.