Early this month the AFL unsuccessfully alleged that it was unlawful for Optus to screen almost live games to its mobile customers through its ‘TV Now’ application. TV Now allows Optus customers to record and watch TV on their phones. The AFL argued in the Federal Court that the use of TV Now for this purpose breached the league’s copyright on the screening of free-to-air matches. The AFL also claimed that it would potentially be detrimental to its relationship with existing broadcasting partner, Telstra. However, the court found in favour of Optus. Subsequently, Optus returned to court seeking an injunction against the AFL. Optus claimed that AFL CEO Andrew Demetriou, had made public comments in the wake of the previous decision that were tantamount to accusing Optus of stealing. Optus sought the injunction on the grounds that those comments amounted to misleading and deceptive conduct under consumer law, given that Optus’ activities had been held to be legal.

According to Justice Richard Edmonds, the issue for the court was:

not the truth of the statements that Optus behaviour is akin to stealing, or the statement that Optus is lifting content owned by sporting bodies... (but rather)...whether the conduct of Mr Demetriou in making those statements is likely to mislead or deceive or to lead one into error.”

The court found that since the statements were made in an interview which was of an obviously subjective nature and covered a range of topics, they were purely statements of opinion, and not likely to mislead or deceive the public.

Justice Edmonds went on to described Demetriou’s comments as part of an “ongoing narrative” about sports broadcasting rights that is evolving with technological change. Relationships between sporting leagues, media partners and audiences are changing as access to coverage continues to take new and increasingly convenient forms. Both the sport and media industries need to be responsive to these changes (within the boundaries of the law). The risk of failing to do so may be that new opportunities for exposure and partnership arrangements could be missed.

The AFL is due to appear before the Full Federal Court on March 14 and 15 to appeal the original decision in favour of Optus and TV Now.