3pm EPL Footie games and the law ?

[bigtee]

Nah, the decision doesn't particularly bother me one way or another whichever way it goes. All I have been doing is to provide some clarification on the accurate position of the law to help people make informed judgments on where they stand. Also, I have felt it necessary to provide a balance when I notice a pro Sly/provider slant that (a) does not accurately portray the law and/or (b) pay sufficient attention to the other side of the coin i.e. the consumer's perspective. That is why I pointed out some of the absurdities (e.g. Chelsea v Inter example) resulting from the Murphy decision as things stand currently.

What the minister said is not the law; in fact if you look at it closely it is not even totally accurate in law. However, one thing it does is to give an insight into what the legislature aimed to achieve.

 

[Low Profile]

It certainly brings up some controversial issues, Barcelona play Stuttgart in the Champions League, this is FTA on ITV, if an expat was to be watching the FTA broadcast in their own language would they be breaking local laws?
Example: should you legally have to subscribe to Canal+ in France, Sly in Germany etc. - and what if multiple broadcasters have the same territorial rights?

 

[Lazarus]

But an expat watching ITV is either taking advantage of the overspill from 2D or of the ready availability of Sky viewing Cards (if they cannot get 2D and must rely upon the Encrypted FTV ITV Regions).

In the case of overspill from 2D, the Rights are acquired with that overspill taken into account, because it is not possible to entirely confine the 2D quasi-spot beam to the UK alone and there appears to be no particular issue about expats viewing. It's there for the taking. It is perhaps noteworthy that newer Birds planned or coming into service seem to be showing some signs of tighter "designed for purpose" spot beams.

In the case of FTV ITV viewing, that falls under the same broad argument as for "foreign" stuff viewed in the UK. The fact that ITV is Encrypted but FTV, as opposed to Subscription, is not relevant as the Encryption in this case is there as an alternative to FTA on a narrow footprint and its purpose is clearly to attempt to limit viewing outside the Rights-paid area. However, the Terms and Conditions for issue of cards purely for FTV are the same remain the same as for Subs. and are, of course, framed to account for Rights issues. ie The expat user is in breach of those Terms and Conditions. Not that anybody cares!

 

[bigtee]

It certainly brings up some controversial issues, Barcelona play Stuttgart in the Champions League, this is FTA on ITV, if an expat was to be watching the FTA broadcast in their own language would they be breaking local laws?
Example: should you legally have to subscribe to Canal+ in France, Sly in Germany etc. - and what if multiple broadcasters have the same territorial rights?

I agree essentially with the "all round good egg" one above.

But I think a distinction is to be made between two (possibly more) scenarios. One, as Tivu explained, is that the expat is watching the ITV transmission abroad (e.g. in Spain) either FTA or FTV. Question then is whether they are violating the Spanish criminal law (very unlikely, I would have thought) or Spanish civil law ---- both depend on looking at Spanish law in detail.

A different scenario is that the expat is here in the UK but chooses to watch the match using a Spanish provider e.g. D+. If the UK transmission is totally FTA, then the expat will not be breaking the law by using D+. If the transmission is both FTA and FTV (due to ITV regions), I would conclude that the courts are not likely to convict. If the transmission is only FTV and not FTA (as e.g. on Fiver), I would conclude again that the courts are unlikely to convict though, technically, there is a microscopic chance that they could.

In all honesty, I personally believe the Karen Murphy case to be a bad decision even based solely on UK law that, leaving aside the European law angle, there is a decent chance that it could be overturned by the Court of Appeal or Supreme Court on the UK law issues alone - if it ever goes that far. This is speculation of course and the CA/SC could indeed decide to affirm the decision.

As far as the European Court case is concerned, it is not altogether easy to guess confidently which way the court will eventually come down on.


EDIT I should make an important clarification! My foregoing post assumed a transmission originating in the UK. As the Barcelona v Stuttgart match will be played outside the UK and its "transmission" will be "originating" outside the UK (according to the court's interpretation in the Murphy case), then there is no legal problem for an expat/anyone in the UK who watches it with a 'legit' foreign card.

 

[bigtee]

Aw shucks! I still need to add another point.

With the Spanish expat using the D+ card in the UK ---- there is one more issue of whether they are breaking their contract with D+. For a start that is no concern of UK law. Obviously, D+ could choose to switch off the card (say under pressure from Sly); apart from switching off, whether this is legally sustainable in a court of law is a matter primarily of Spanish law.

In practical terms, there is plenty of evidence that providers do indeed turn a blind eye to the use of their cards outside the normal territory (e.g. Sly cards in Spain; lots of Polish cards in the UK etc etc). There is one provider that I find particularly amusing -- Al Jazeera Sports aka JSC. One of their sports/football channels follows a decidedly English format; not only that, it uses English commentators, English presenters including a certain Mr. Lineker, a panel of English "experts" including a certain Mr. Venables ---- basically, a crew that you might see on an ITV or BBC football programme. Naturally they are a Middle East provider; but one argument is that there is a lot of English expats in the Middle East and perhaps such dedicated English format is targeted at them. Perhaps so indeed! On the other hand, however, JSC sports cards are extremely popular among UK based satellite hobbyists as well!

 

[bigtee]

Re my post no 17 delete "QV leisure", insert "Gannon"; QC (not QV even) Leisure dealt with a related but different matter.

 

[xavk]

you cannot be committing an offence since you are not circumventing any "charge applicable".

Since Sky don't show any 3pm Saturday games, does that mean watching them isn't avoiding the charge?

 

[ruthlessly]

Or say a punter has a Sky sub and still watches a Nova 3pm - what charge are they avoiding?

I must thanks to bigtee for the informative posts.

 

[bigtee]

Since Sky don't show any 3pm Saturday games, does that mean watching them isn't avoiding the charge?

Interesting point again! IIRC the Murphy case was not about 3pm "closed period" matches. Nevertheless, I believe the likelihood is that the Murphy decision will also be interpreted as applying to 3PM matches. While I see and sympathise with the logic "what charge is being avoided", the response I anticipate would be that Sly/ESPN are probably the rights-holders to 3PM matches in the UK and have only agreed not to show them to please the FAPL who choose that 3PM matches should not be shown in the UK because they are allowed though not required to do so under UEFA's rules. I must concede though that there is a small chance that the consumer could win on that particular technicality.

In the Gannon case, this point was one of the defences raised for Gannon. However, Gannon is no authority on the point for a number of reasons and, in particular, that Gannon was not decided on that basis. Gannon was acquitted on the basis of lack of dishonesty (which still stands in law) and on the basis that it was not proved that the transmission originated in the UK (which, currently, no longer stands in law.

Or say a punter has a Sky sub and still watches a Nova 3pm - what charge are they avoiding?

I must thanks to bigtee for the informative posts.

Many thanks; in truth I did not originally expect the discussion to become so extensive. Again the question here is a very logical one; logic would suggest (a) lack of dishonesty, tied with (b) lack of intention to avoid a charge. But if we pursue the logic of the English decision in the Murphy case, I would say even that is illegal --- currently!

 

[madmonty]

How long is a piece of string?

It is twice the length of the distance from the middle to the end.

 

[dadcoolpedro]

new to the forum im a publican that now refuses to pay the sky machine because of blatent abuse of a monopoly i am confused on a number of points 1.can the people from sky tell whats domestic and whats commercial sky italia 2.can i show premiership football outside the 3pm-5pm window on a saturday 4. if i cant show premiership can i show all off the rest with out fear of reprisals from sky.......cheers

 

[bigtee]

1. It is not Slly's business whether you are using a domestic or commercial foreign card ----- as long as you are not using the card to show a UK originated programme whether or not 'belonging' to Slly.

2. Showing Premiership football with a foreign card at any time will currently most likely be held by the UK courts to be illegal. (Edited)

3. You can show foreign (non-Premiership) football transmitted from outside the UK, legally under UK law with a foreign card --- without fear of reprisals from Slly though they may huff and puff and hope the intimidation factor will work.

 

[bigtee]

Postscript: I have just learned (reliably, I believe) that the much awaited European decision in the Karen Murphy case is not likely to be until Spring 2011. As Slly and the FA have sort of suspended prosecution of those using cards of other providers in European Union to show Premiership, it seems somewhat safe (without any recommendation at all to do so) to use such cards (including Slly italia) to show Premiership at least until then.

Happy days.

 

[ciaran]

I would have to take issue with your reading of the Murphy case BigTee...

The upcoming ruling on the preliminary questions means that the potential conviction is still sub judice -and has simply not seen due process. And it's likely this one will go the whole way to the Supreme Court anyway. So, to state that it is currently illegal to use an EU sub is not quite correct.

The 2008 decision did not uphold the conviction...it simply hasn't ruled on it yet.

 

[bigtee]

i get your point; however, the position remains as decided in the Murphy conviction until the appeal is decided one way or another.

 

[deleted]

The way i see it is SLY being fu***** greedy, every pub or licensed premisses is charged on the rateable value of the premisses, therefor a small pub with a packed house will pay less than a big pub that is not packed, therfor if you run a big pub in a quiet area then you have to pay more on SLY'S assumption that big pubs get more customers, what i dont get !! Is nearly 75% of those customers will be a SLY subscriber and should therfor be afforded the privelage of watching the footy in the pub rather than at home for which they pay a subscription, My arguement is why should these 75% of customers have to pay twice to watch the footy, when SLY should be charging a reasonable rate for the 25% who do not subscribe , That way there would be no need for any pub to show foreign channels, I would take that arguement to court . but then the FA come into the equation by not allowing 3pm showings, so as to fill football grounds and make the crap players like the England squad demand even higher ridiculous wages.

So the morale of the story is SLY and the FA all prosper and we all get raped, so carry on regardless i say.

 

[Low Profile]

It looks like the providers are targeting the grey market in the upcoming season, Sultana Ireland (roi) and Sty Germany are both showing 3pm Premiership matches. To the sceptic this might look like a premeditated attempt to 'get around' the 3pm ruling. My guess is the UK grey market will be bigger than the supposed local market of these operators.

 

[ciaran]

i get your point; however, the position remains as decided in the Murphy conviction until the appeal is decided one way or another.

Your position would appear to frustate legal certainty.

 

[bigtee]

Your position would appear to frustate legal certainty.

Well, it is the way the legal system works. There is a decision 'on the books' so to say --- which is that showing EPL football with a foreign card is illegal. That decision is being appealed. We will indeed have greater certainty when the appeal is decided. However, until the appeal is resolved the law stands as it was last interpreted or decided by the (lower) courts which have actually looked at it. In some instances a more superior court may even give an indication that an earlier decision of the lower court was wrong; if that happens the courts will continue to be bound by the previous 'wrong' decision unless the matter comes before a court of equal "ranking" which can then choose not to follow the earlier decision or a higher ranking court which can choose to overturn the decision of the lower court.

 

[ciaran]

Well, it is the way the legal system works. There is a decision 'on the books' so to say --- which is that showing EPL football with a foreign card is illegal. That decision is being appealed. We will indeed have greater certainty when the appeal is decided. However, until the appeal is resolved the law stands as it was last interpreted or decided by the (lower) courts which have actually looked at it. In some instances a more superior court may even give an indication that an earlier decision of the lower court was wrong; if that happens the courts will continue to be bound by the previous 'wrong' decision unless the matter comes before a court of equal "ranking" which can then choose not to follow the earlier decision or a higher ranking court which can choose to overturn the decision of the lower court.

I'm well aware of how the legal system works. The position of the Court of Appeal is that it is unable to uphold the conviction without further clarification on points of law from EU. That is the highest current ruling. Even though it is still incomplete - it is still what the Court has held.

Where a point of law is in contention and pending a preliminary ruling from Europe then the law is effectively held in stasis. There is academic opinion that in this circumstance the current precedent is the Court of Appeal ruling, even though its decision is still not conclusive. According to the current ruling of that Court the - the Law is unclear.

These things are never black and white...as you will well know.

Interesting pointsof law at stake though.