The importance of securing public access to major sporting events: Poland’s volleyball blackout

Published 05 September 2014 | Authored by: Karol Laskowski LLM

In this article, Karol Laskowski examines the state of Polish and EU law as it pertains to securing free-to-view public access to major sporting events, and reflects on what action needs to be taken to avoid the public missing out on free access to prestigious and popular events in the future.

 

The Volleyball Men’s World Championships 2014

Poland is currently hosting the Volleyball Men’s World Championships (Volleyball Championships), which started on 30 August 2014; but, bizarrely, most Polish fans won’t be able to follow this great event.

Polsat, a Polish broadcasting group engaged in organizing the Volleyball Championships and that holds exclusive broadcasting rights to the event, has officially announced that the games will be shown in Poland only on its pay-to-view channels available on satellite and cable platforms (save for opening game: Poland vs. Serbia).

Polsat’s decision has already triggered a public debate over whether Poland’s legislation should secure public access to such tournaments on free-to-view channels.1 

Polish rights to free-to-view “major events”

The Polish Broadcasting Act 1992

The Polish Broadcasting Act of 29 December 1992 (the “Act”) contains at Article 20b specific regulations (the “Major Event Regulations”) that require events of major importance for society (“Major Events”) to be shown on qualified channels, namely:

  • channels recognized as nationwide based on the Act or broadcasting license, and
  • accessible free of charge (save for standard TV subscription as defined in the Licence Fees Act of 21 April 2005 and basic fees charged by cable network operators) (“Qualified Channels”).

Major Events may be shown on other channels (e.g. pay-to-view channels) only if it is already accessible on qualified channels.

In practice, from the Polish perspective, it means Poland’s Major Events should be accessible on the television channels of Poland’s public broadcaster (TVP1 and TVP2) or possibly other nationwide broadcasting channels that are free-to-view available on digital multiplexes (including Polsat’s free channel, which has approximately a 95% coverage of Polish viewers). So effectively there is a prohibition against Major Events airing exclusively on pay-to-view channels. 

The exemption

In accordance with article 20b section 6 of the Act, there is one exemption to this rule. To qualify for this exemption, a broadcaster of a pay-to-view channel must be able to demonstrate that none of the broadcasters of Qualified Channels were “ready to conclude a contract” ensuring the coverage, otherwise they could be subject to a fine imposed by the NBC. 

This occurred in 2012, when the Polish national football team played Montenegro and Moldavia in the qualifying rounds of the 2014 FIFA World Cup. The games were recognized as Major Events, but since none of the broadcasters of Qualified Channels decided to show them, they only appeared on pay-per-view basis (i.e. not a traditional pay-to-view channel but as a single broadcast available upon single transaction fee offered by cable and satellite operators). The NBC was critical of the situation, but – to our knowledge – did not fine the operators for formal reasons (it was questionable whether the providers of pay-per-view services, including cable and satellite operators, were the broadcasting channels; only the latter ones could be subject to the fines from the NBC).2

The list of Major Events

The Act contains a list of Major Events, established by taking into account “a widespread social interest”, and grants the Polish National Broadcasting Council (NBC), the national regulator and supervisory body for all the audiovisual media service providers under Polish jurisdiction, powers to adopt a regulation (i.e. binding legislative act of the NBC) to add to the list.  

So far, however, the NBC has not exercised its powers to extend the list, and the current Major Events under the Article 20b section 2 of the Act is limited, in terms of sporting events, to:

  • The Olympic Games and the Winter Olympic Games;
  • The semi-finals and finals of the FIFA World Cup Finals and the UEFA European Football Championship, as well as all other matches at those events which feature the Polish national team, including qualifying games; and
  • Other football matches featuring the Polish national team in official tournaments, and matches featuring Polish clubs in the UEFA Champions League and UEFA Europa League.

The AVMS Directive

The Major Event Regulations were adopted into the Act in 2000, and are in line with the rules on Major Events laid down in the Audiovisual Media Services Directive 2010/13/EU (“AVMS Directive” – previously the Television Without Frontiers Directive (89/552/EEC).3

Pursuant to the AVMS Directive, Member States are entitled to adopt measures aimed to ensure that Major Events are not be broadcasted “in such a way as to deprive a substantial proportion of the public in that Member State of the possibility of following such events by live coverage or deferred coverage on free television” (see article 14 AVMS Directive).4 Examples of Major Events under the AVMS Directive include: the Olympic Games, the football World Cup and the European football championship (See point 48 to the preamble of AVMS Directive).

Acting within these powers, Member States may create a list of Major Events and communicate it to the EU Commission for publication in the EU’s Official Journal. Every measure taken by the Member States should be transparent and proportionate.

Member States are then required to respect each other’s lists by ensuring that broadcasters operating under their jurisdiction do not violate the relevant rules and lists in other Member States. This avoids cross-border circumvention of the rules; otherwise a broadcaster operating in the jurisdiction of one Member State could potentially buy out broadcasting rights to a Major Event listed in another Member State and broadcast it on an exclusive basis on its pay-to-view channels available through cable and satellite in that Member State, and the regulators would not have an effective measure to counteract the move (See point 51 to the preamble of AVMS Directive).

This happened, for example, in 2011 when the UK based broadcaster - TV Denmark – addressing its channels to a Danish audience, acquired exclusive rights to football games recognised as Major Event in Denmark; due to actions from UK’s ITC approved by UK’s House of Lords, eventually TV Denmark was refused to broadcast said football games on exclusive basis in Denmark.5

A number of EU countries have adopted the list of Major Events, including: Austria, Belgium, Denmark, Finland, France, Germany, Ireland, Italy and the UK.

Interestingly to note, the European regulations securing public access to Major Events were based on the first amendment to the Television Without Frontiers Directive, adopted in 1997, when the broadcasting rights to the FIFA World Cup were, for the first time, bought out by the private pay-tv-broadcasters Kirch Media WM AG, not public broadcasters of theEuropean Broadcasting Union (EBU). According to a number of commentators, EU legislators acted in response because they wanted to protect public access to such events.6

 

Proposal to extend the list of Major Events – is the Volleyball Championships not that popular?

As discussed above, the Act secures the viewing rights of the Polish public to Major Events. The gaping hole in the protection, however, is the limited scope of the Major Events that are listed; meaning events such as current the Volleyball Championships remain unavailable on a free-to-view basis.

This is absolutely remarkable when we take into account that the opening game Poland vs. Serbia on 30 August 2014 (the one that was broadcasted on free-to-view channel) was watched by quarter of Polish people (approx. 10 million) but, since the Volleyball Men’s World Championships is not recognized as a Major Event Polsat will show all other games exclusively on its pay-for-view channels.

The situations may be about to change, though. On 11 August 2014, after two rounds of consultations in 2012 and 2013, the NBC, under public pressure from the sports fans, officially announced that it has notified its proposal for the regulation, including a charter of additional Major Events, to the European Commission in accordance to the article 14.2, AVMS Directive.

The newly proposed Major Events

The new list proposed by the NBC includes a number of additional sporting events, including:

  • Volleyball matches featuring the Polish national team in the men’s and women’s World and European Cup, including qualifying matches;
  • Men’s Volleyball World League tournament taking place in Poland;
  • Men’s semifinals and finals of the World and European Handball Cups, and all matches in these tournaments that feature the Polish national team, including qualifying matches;
  • Nordic World Ski Championships;
  • Ski Jumping World Cup tournaments;
  • Women’s Cross-Country World Cup tournaments;
  • World Championships in athletics.7

Provided the EU Commission does not challenge them, the events will pass into law under the remit of the Act and be added to Poland’s current list of Major Events, on the top those set out above.

The list of additional Major Events proposed by the NBC was criticized within the process of public consultation by some broadcasters of pay-to-view channels, who claimed that the NBC was unduly influenced by the success of particular individuals. For example, the popularity of the Nordic World Ski Championships in Poland seems partially built around the success of Justyna Kowalczyk; and, similarly, Ski Jumping World Cup tournaments started to catch public attention when Adam Małysz won a series of tournaments. The broadcasters of pay-to-view channels also say that the list is now excessive.

On the other hand, Poland’s public broadcaster, TVP, is – one imagines – rather happy with the list, as it will have a good chance to acquire broadcasting rights to the listed events in the future. Likewise, the rights holders of the sports in question should also be please, as elevation to the Major Events list will help preserve their future status, after the careers of the presently popular stars end.

Defining a Major Event

The Act does not define any specific, prescriptive criteria to apply when assessing whether an event should qualify as a Major Event; rather, it states in article 20b section 3 to the Act that NBC should act: “(…) having regard to the degree of social interest in the given event and its significance to social, economic and political life”.

The NBC has defended its choices by stating that it has followed the EU Commission’s guidelines on the recognition of ‘major events’, pursuant to which an event may qualify as an event of major importance for society if at least two out of four of the following conditions are met:

  • The event has a generally recognised, distinct cultural importance for the population in the party concerned and in particular contains elements of its cultural identity;
  • The event and its outcome has a special general resonance in the relevant party, not simply a significance to those who ordinarily follow the sport or activity concerned;
  • It involves the national team in the sport concerned in a major international tournament;
  • The event has traditionally been broadcast on free-to-view television channels and has commanded large television audiences in the Party concerned.8

The NBC has supported its decision with a detailed analysis of the viewerships of the proposed events. In most cases, including the volleyball championships, it was the three latter criteria that were met, as the NBC explained in the justification to the regulation. It can also be noted that the NBC’s proposal is relatively modest compared to the approximately twenty sporting events recognized as ‘major events’ by France, UK or Belgium.

The review procedure

Pursuant to article 14.2 of the AVMS Directive, Poland’s charter shall now be subject to a formal review procedure, which should take no longer than 3 months and unless the European Commission objects to the NBC’s proposal. Once in force, other EU Member States must respect the new list, and will need to ensure that broadcasters operating under their jurisdiction do not deprive Polish viewers of their Major Events’.

The author thinks it rather unlikely that the European Commission will query the NBC’s proposal, as the Court of Justice (CJEU) has already stated several times that Member States have a wide ‘margin of appreciation’ when it comes to saying what a ‘major event’ is for their citizens.

That was the CJEU’s approach when reviewing the UK's decision to list all matches played in the UEFA European Championships and FIFA World Cup Finals tournaments as major events, even though UEFA and FIFA tried to argue that only key matches (from a UK audience perspective) should be categorized as such.9

If all goes to plan, the new list of Major Events will likely come into force in the end of 2015, assuming that once the proposed list is published and accepted by the EU Commission, the NBC will finally publish the ordinance indicating a 12 month vacatio legis. The NBC has stated that the decision on the lead-in period came from a European Commission recommendation, and is justified to protect broadcasting rights to Major Events that may have already been acquired.

 

Final thoughts

The AVMS Directive and the Act contain mechanisms capable of securing public access to Major Events on Qualified Channels (i.e. nationwide, free-to-view channels). As we have learned from the recent public debate in Poland, these regulations are necessary and expected by society.

The main challenge then is ensuring the mechanisms are used effectively, and that Major Events are identified and secured for the public in a timely fashion. An additional element to account for in this process, which makes the importance of timing and planning even more paramount, is to ensure broadcasters are not deprived of any rights they may have already acquired (which usually happens well in advance of a Major Event taking place).

When the mechanisms are not used in a timely, effective manner, we end up in unfortunate circumstances like the one Poland is now experiencing with the Volleyball Championships. This situation is especially frustrating as it was obvious well in advance that the event would catch public attention: Volleyball is the second most popular sport in Poland and one of the only team-sports in which Poland enjoys quite a degree of success.

The new regulation of the NBC is a step in the right direction, but the list of Major Events should be constantly monitored in the future to avoid a repeat of the tensions we are now experiencing.

 

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About the Author

Karol Laskowski LLM

Karol Laskowski LLM

Karol is an Advocate and Senior Associate at Dentons’ Warsaw office.
 
He is an expert in the technology and media sectors. He advises to major broadcasters, cable and satellite operators, audio-visual producers, game producers and telecoms. He advises in particular on legal compliance and rights clearance matters.
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