Emil Ford Lawyers

Broadcasting in the Online Era

The widespread popularity of the streaming service Netflix has created a huge market for digital content with streaming services such as Hulu, Stan, Foxtel Play and Amazon Prime increasingly popular. In Australia, this trend has forced free to air television channels such as Channel 9 and Channel 10 to revamp and upgrade their online platforms. It has also raised concerns that Australia’s media laws are not yet equipped to regulate this evolving media landscape. In a recent contractual dispute in the Supreme Court of New South Wales, WIN Corporation Pty Ltd unsuccessfully sought to stop Nine Network Australia Pty Limited from providing its online streaming service, 9Now, within WIN’s broadcast licence areas.

The dispute primarily concerned the interpretation of the word “broadcast” as the Nine licence agreement granted WIN the exclusive licence to broadcast Nine programs within the defined broadcast area. WIN argued that by providing 9Now within WIN’s licence area, Nine was in breach of the licence agreement. Since broadcast was not defined in the licence agreement, the Court considered the meaning of broadcast according to the context of the licence agreement and the negotiations between the parties. The Court concluded that the meaning of "broadcast" was confined to free-to-air broadcasting. With reference to negotiations between the parties, the Court also accounted for the fact that at the time the licence agreement was entered into, Nine was not in a position to grant streaming rights for the entirety of its free-to-air content.



"The Court concluded that the meaning of "broadcast" was confined to free-to-air broadcasting" ...

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This decision is not controversial from a contractual perspective as it applies longstanding principles of contractual interpretation. Nevertheless, this decision highlights that organisations involved in media should be prepared to face new challenges as a consequence of this changing market. This decision also highlights the importance of defining key terms and the scope of a licence agreement.

If you require assistance with a licence agreement please contact  or .

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