Broadcasting Act 2009

168.

Qualifying broadcaster may apply to High Court to obtain rights from event organiser to provide coverage of designated event on free television services in State, etc.

168.— (1) Where an event has been designated, and if within 56 days, or such other lesser or greater period which the Minister directs, before the event or a part of it takes place the event organiser has not made an agreement or arrangement with a qualifying broadcaster to enable it to provide coverage on free television services in the State of the event or part of it, as determined under section 162 (1) (b) in the designation order which designated the event—

( a) subject to subsection (3), a qualifying broadcaster may apply to the High Court in a summary manner for an order directing the event organiser to give rights to the qualifying broadcaster to provide such coverage and upon such terms as are fixed by the High Court, including the fixing of reasonable market rates, in respect of the acquisition of the rights, or

( b) within that period a qualifying broadcaster has not so applied, the event organiser may apply to the High Court in a summary manner to request the High Court to invite qualifying broadcasters to make such an application.

(2) Subject to subsection (3), the High Court may, on application to it under subsection (1) by a qualifying broadcaster, direct the event organiser, upon such terms as to the Court appears just and proper, to give to the qualifying broadcaster rights to provide coverage of the designated event or part of it on free television services, as determined under section 162 (1) (b) in the designation order which designated the event, notwithstanding that all of the terms for the acquisition of the rights to provide coverage under subsection (1), have not yet been fixed by it, including the fixing of reasonable market rates.

(3) Subsection (1) does not apply where an event organiser decides, prior to the making of an application under subsection (1), not to allow coverage of an event or a part of it, as determined under section 162(1)(b) in the designation order designating the event, on any television service provided by a broadcaster. Where an event organiser has so decided, the event organiser must notify, as soon as possible, the Minister.

(4) The High Court in fixing the terms under subsection (1) may, in arriving at a computation of reasonable market rates, to be paid by a qualifying broadcaster for the acquisition of the rights under that subsection, refer the computation of the rates to an arbitrator appointed by the High Court. The arbitrator shall report to the Court and the parties, by way of issuing an award, setting out the amount that he or she decides are reasonable market rates.

(5) An arbitration under subsection (4) shall be conducted in accordance with such procedures as are determined by the Court referring the computation of the rates to the arbitrator. The Court may, in determining such procedures, give such directions as it considers just and proper for the processing of the arbitration, including fixing the period within which the award of the arbitrator is to be issued.

(6) Where in an application under subsection (1)

( a) the High Court has fixed the reasonable market rates, or an arbitrator has issued an award under subsection (4), and prior to the High Court making a final order in respect of the application, or

( b) in the circumstances referred to in subsection (2), the High Court indicates that it will fix the reasonable market rates for coverage of the event after the event has taken place, and prior to the event taking place,

the qualifying broadcaster may withdraw the application. The High Court may in these circumstances, having regard to the intention of the broadcaster making the application, award such costs to such party or parties to the application as it considers appropriate.

(7) The High Court may, either of its own motion or on application to it by an arbitrator appointed under subsection (4), give, from time to time, such directions in connection with the arbitration as it considers just and proper.

(8) Where more than one qualifying broadcaster applies under subsection (1) for rights to provide coverage of a designated event or part of it and the High Court has fixed under this section the terms upon which a qualifying broadcaster may obtain the rights, the event organiser may choose to which qualifying broadcaster it gives the rights.

(9) Where there is an existing contract in respect of an event or part of it between the event organiser and another broadcaster, who is not a qualifying broadcaster, the High Court in an application to it under subsection (1) shall decide to whom and in which proportions monies in respect of the reasonable market rates, fixed under this section in respect of the acquisition of rights to the event or part of it, should be paid.

(10) The High Court may, if it considers it necessary, for the purposes of exercising its powers under this section, adjust an existing agreement or arrangement, in respect of rights to a designated event or a part of it, between the event organiser and a broadcaster, who is not a qualifying broadcaster.

(11) Without prejudice to subsection (2), when considering any matter under this section, the High Court may make such interim or interlocutory order as it considers appropriate.