WIN v Nine Network Australia - Putting the 'broad' in 'broadcasting'
Technology convergence has created a diverse and dynamic media market in which traditional
broadcasters are competing with online service providers such as Netflix for the attention of
consumers. A recent decision of the NSW Supreme Court demonstrates just how crowded this
market has become. In WIN Corporation Pty Ltd v Nine Network Australia Pty Limited  NSWSC
523, WIN Corporation Pty Ltd's (WIN) was unsuccessful in its attempt to restrain Nine Network
Australia Pty Limited's (Nine) online streaming of its programming in WIN's broadcast licence areas,
holding that such streaming did not constitute broadcasting under the relevant agreement between
the parties. The decision will likely strengthen calls for the reform of Australia's media laws, which
have, in the view of some industry participants, not kept pace with fundamental changes to the media
Since 1997, WIN and Nine have been party to a variety of agreements providing WIN with a licence
to broadcast Nine programming in designated regional areas. The latest of these was the Program
Supply Agreements (PSA), signed in June 2013 and set to expire in June 2016. Clause 2.1 of the
PSA provides that:
Nine 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 the channels known as "Nine",
"NineHD", "9Go", "9Gem", "Extra" and "9Life (the "Nine Channels"), to be picked up by WIN at Nine's
The PSA does not define the term 'broadcast'.
On 27 January 2016, Nine launched its 9Now service, which allows users to log in via an internet
website or application to view via the internet live or near live streaming of Nine's programming, or on
a video on demand basis. The service is also available to people located in the WIN licence areas.
WIN subsequently commenced proceedings in the NSW Supreme Court, claiming that:
• the online streaming of Nine's programming constitutes 'broadcasting' under clause 2.1 of the
PSA, meaning that by streaming this programing in the WIN licence areas, Nine was in
breach of the PSA; and
• in the alternative, Nine was prevented from streaming into the WIN licence areas by a term
implied into the PSA. WIN sought an injunction to restrain Nine from streaming its programs
via 9Now in the WIN licence areas for the duration of the PSA.
Meaning of 'broadcast'
Hammerschlag J rejected WIN's contention that the word 'broadcast' encompassed the dissemination
of material by any means. WIN argued that, in the absence of a definition in the PSA, the term is to
be given a wide meaning and referred to the definitions in the Supreme Court Act 1970 (NSW) being
"a live or delayed broadcast by means of radio, television or the internet (including webcasts)" and
the Broadcasting Services Act 1993 (Cth), which defines broadcasting service to mean "a service that
delivers television programs or radio programs to persons having equipment appropriate for receiving
that service, whether the delivery uses the radiofrequency spectrum, cable, optical fibre, satellite or
any other means or a combination of those means".
Nine argued that the natural and ordinary meaning of 'broadcast' is transmission by radio or
television, and that as used in the context of the whole of the PSA, it only refers to free-to-air
broadcasting. Nine argued this construction accords with the commercial purpose and objects of the
PSA, having regard to the genesis of the transaction, the background, the context and the market in
which the parties were operating. Nine said that the commercial purpose and object of the PSA was
to give WIN a licence only to broadcast free-to-air, and Nine's arrangements with WIN had only ever
been for free-to-air rights.
Nine also sought to adduce evidence of pre-contractual negotiations between the parties that it
claimed evidenced their consensus on the narrower definition of 'broadcast' for which it contended.
His Honour noted that as at 12 March 2013, there was apparent consensus on this narrower
definition, but the evidence was incomplete. Neither party could produce evidence as to the course of
negotiations which resulted in use of the word 'broadcast' in the PSA with no definition.
Nevertheless, the Court agreed with Nine's characterisation of the term 'broadcast' and found that the
words "broadcasting on and in the licence areas covered by the WIN Stations" in clause 2.1 only
referred to free-to-air broadcasting. The Court read the phrase 'licence areas', as referred to in clause
2.1, are geographical limitations imposed on WIN's licences under the PSA and only cover free-to-air
The Court also observed that at the time of entering into the PSA, WIN was aware that Nine was not
in a position to give WIN internet streaming rights for Nine's entire free-to-air content. It was therefore
unlikely that the parties intended that broadcast would mean 'disseminate by any means' but that WIN
would only be able to exercise that right by broadcasting free-to-air, and there was 'nothing perverse,
irrational, commercially nonsensical or commercially inconvenient' about concluding that Nine was
entitled to live stream its programing in the WIN licence areas. Rather, the Court considered that WIN
had obtained the exclusivity it had bargained for, namely the exclusive right to broadcast free-to-air in
the WIN licence areas.
Implication of a term
In accordance with the Court's construction of clause 2.1, it declined to imply a term prohibiting Nine
from streaming its programming within the WIN licence areas. WIN's relevant benefit was the
exclusive licence to broadcast 'free-to-air' into the WIN licence areas, and Nine did not deprive WIN of
this benefit. Further, the Court observed that the proposed term was not necessary to give business
efficacy to the PSA and that it contradicted the PSA's express terms.
In terms of contract law, the decision itself affirms the proposition that the meaning of a contractual
term is to be determined in the context of the particular contract in which it is used and with reference
to the surrounding circumstances.
From a regulatory perspective, the facts of the case have been asserted as vindicating claims that the
so-called '75% rule' (which provides that the population of the licence areas controlled by one person
or company cannot exceed 75% of the total Australian population) is futile in the era of online
streaming. The Australian Government has already proposed to abolish the rule, one of several
changes to media ownership laws contained in a draft reform bill that was released for public
consultation in March 2016. The asserted intention of those reforms is to bring Australia's media
ownership laws into the digital era, an apparently simple objective, but one that is likely to generate
divergent views in light of the rapidly evolving, and increasingly crowded, media landscape.
The decision has been appealed by WIN.
F or more information, please contact Anne-Marie Allgrove, Toby Patten or Matthew Dempsey.