Ofcom publishes guidance on references to providers of technical information in sports television broadcasting

By Jonathan Salt

Ofcom has published guidance on the established industry practice of broadcasting on-screen references to providers of technical information in sports programming.

Rule 9.5 of The Ofcom Broadcasting Code (the “Code”) requires broadcasters to ensure that “no undue prominence may be given in programming to a product, service or trade mark. Undue prominence may result from: (i) the presence of, or reference to, a product, service or trade mark in programming where there is no editorial justification; or (ii) the manner in which a product, service or trade mark appears or is referred to in programming“.

Although the Code does not specifically reference sports television broadcasting, Ofcom’s previous finding following a complaint against Sky Sports’ use of Specsavers’ sponsorship of “Hawk-Eye” technology during coverage of Ashes cricket in 2009 confirmed that circumstances exist where there is sufficient editorial justification to include a brief on-screen acknowledgment of a provider of technical information during broadcast coverage of sporting events.

Whilst Ofcom have indicated that they will continue to make judgments under the Code on a case-by-case basis, the new guidance does provide broadcasters with the following important information on factors that are likely to be considered by Ofcom in such cases:

  • technical information should enhance the viewing experience either providing viewers with a broader understanding of the event they are watching (e.g. match statistics) or providing information which is integral to viewers’ understanding or enjoyment of the event (e.g. lap times in athletics);
  • the principal purpose of including technical information should not be to promote the information provider and “any credit should be brief and secondary“;
  • matters of objective fact concerning the sports event which in theory could be provided by a number of companies (e.g. scoreboards) are permitted whereas products from specific providers available and targeted for sale at viewers are unlikely to be a legitimate form of technical information (e.g. betting odds). However, there may be limited circumstances where betting odds within a programme may be justified (e.g. where there exists a close association between a sporting event and betting which is longstanding and uncontroversial (i.e. horseracing)); and
  • broadcasters are advised to take particular care when crediting providers of technical information with whom they have entered into sponsorship, product placement or commercial arrangements for the same programmes especially if there is the potential for such commercial arrangements to engage the product placement rules.

The full guidance published in Ofcom Broadcast and On-Demand Bulletin, Issue 321 (23 January 2017) can be found here.

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2017/02/4817/

Sports betting does not require a German gambling license in North Rhine-Westphalia at the moment

By Dr. Michael Stulz-Herrnstadt and Christoph Engelmann

The Higher Administrative Court of North Rhine-Westphalia (OVG NRW) ruled in a recent decision that sports betting intermediation by an EU-licensed provider does not require a(n additional) German gambling license in North Rhine-Westphalia at the moment. With this decision the court takes a very liberal stance. Yet, this is consistent with last year’s decisions by the ECJ and the German Federal Administrative Court (BVerwG). As a result the operation of sports betting in North Rhine-Westphalia on the basis of an EU-license (and without a German license) cannot be prosecuted as a criminal offense and it cannot be subject to an administrative prohibition.

The decision is anticipated by other EU-licensed sports betting operators that are now able to offer their services at least in the German state North Rhine-Westphalia until the new State Treaty on Gambling enters into force in 2018 when a new sports betting licensing procedure is expected to start. Although the decision is limited to only one of the 16 German states (i.e. North Rhine-Westphalia) it would be consistent to apply it to the other German states, too.

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2017/01/sports-betting-does-not-require-a-german-gambling-license-in-north-rhine-westphalia-at-the-moment/

Ofcom announcement on non-domestic TV channels: changes to access service obligations

By Patrick Mitchell and Ed Chalk

Following a consultation, on 2 December Ofcom announced decisions on a number of measures designed to improve access to non-domestic TV channels (i.e. channels licensed by Ofcom for transmission to other EU Member States). As you will know, channels licensed by Ofcom but targeted at European territories other than the UK are required to provide certain levels of subtitling, audio description and signing – albeit that certain exceptions exist for non-domestic broadcasters with smaller audiences. A channel with a “smaller audience” in this context is one whose audience share is above the audience share threshold set by Ofcom for that country, but below the audience share level at which Ofcom requires channels transmitting to that country to provide signing (in France, for example, a “smaller audience” would mean an audience share of between 0.05% and 1.07%).

The three key changes detailed in the announcement are that:

  • the transitional period for non-domestic channels with smaller audiences, originally ending on 31 December 2016, will be extended to 31 December 2017. During this period channels can continue to meet signing requirements through the provision of additional subtitling;
  • after the transitional period (i.e. from 1 January 2018), non-domestic broadcasters with smaller audiences must meet rising targets for sign language, or make rising financial contributions to Ofcom-approved alternative arrangements which progress the objective of making signing more widely available. Alternatively, where Ofcom is satisfied that sign language users in a particular target country would prefer assistance other than the signing of programmes, Ofcom may allow broadcasters to supply alternatives such as additional subtitling instead; and
  • from 1 January 2018, channels broadcasting to Iceland, Liechtenstein and Norway – i.e. EEA countries where the Audiovisual Media Services Directive applies – will be required to provide access services on the same basis as those targeting EU Member States.

The full Ofcom statement can be found here: https://www.ofcom.org.uk/__data/assets/pdf_file/0023/95027/Non-Doms-signing-statement-FINAL-301116.pdf


Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2017/01/ofcom-announcement-on-non-domestic-tv-channels-changes-to-access-service-obligations/

Amendment to the Polish Gambling Act signed by the Polish President

On 28 December 2016, an amendment to the Polish Gambling Act (described in this post) was signed by the Polish President. It will come into force on 1 April 2017. On 30 December 2016, new secondary legislation to the amended Gambling Act was notified to the EC. The notifications can be found here (700, 699 and 698). The standstill period expires on 31 March 2017.

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2017/01/amendment-to-the-polish-gambling-act-signed-by-the-polish-president/

Amendment to Polish Gambling Act adopted

Last Thursday (Sejm) and Friday (Senat), an amendment to the Polish Gambling Act was adopted. Once signed by the Polish president and published, it will come into force on 1 April 2017. Its official aim is to increase the protection of players against risks related to excessive gambling and to decrease the unlicensed market. However, it extends the number of games permitted in Poland and includes a couple of revolutionary changes: Read the rest of this entry »

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2016/12/amendment-to-polish-gambling-act-adopted/

Casinos Given Green Light in Japan

On December 15th 2016, the National Diet officially opened Japan’s doors to Casino gambling by passing the ‘Integrated Resort Promotion Act’, which lays the groundwork for the legalization of Casinos in Japan. If the process continues smoothly, casinos will be operating in Japan after the 2020 Tokyo Olympics.

Read the rest of this entry »

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2016/12/casinos-given-green-light-in-japan/

Filmspeler – Advocate General applies linking case law to Internet media players

By John Cloke, John Wilks and Alastair Mackichan

Hot on the coattails of the CJEU’s ruling in GS Media (see here), the court’s Advocate General has come down hard on the seller of pre-configured media players which give access to pirated content over the Internet, in his advisory opinion in the Filmspeler case delivered last week.

In the AG’s view, the sale of such pre-configured devices itself constitutes a communication to the public and he also dismissed the application of the temporary copying defence in relation to reproduction of copyright works on such devices.

The opinion, whilst only advisory in nature, will be welcomed by rightsholders and broadcasters whose content is unlawfully redistributed via media players which are loaded with applications which give access to pirated content (such as Kodi-powered applications). The CJEU’s judgment is expected around March 2017.

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2016/12/filmspeler-advocate-general-applies-linking-case-law-to-internet-media-players/

China: Michael Jordan finally slam dunks his naming rights claim at the Supreme People’s Court

This is a very important decision because it sets a strong judicial precedent for foreign companies seeking to protect their intellectual property rights in China.

On 8 December 2016, overturning the lower court decisions against Michael Jordan in a lengthy trademark dispute in China, the Chinese Supreme People’s Court rules that Jordan owns the legal rights to his Chinese surname, “乔丹”, which is the Chinese equivalent of “Jordan”. This Chinese name is shown in pinyin, the official system which is used to transcribe Chinese characters into Latin script, as “Qiaodan”. While Jordan registered trademarks for his English name in China as far back as 1993, he never applied for any registered trademarks for “乔丹” nor for its pinyin representation “Qiaodan”.

Qiaodan Sports, a family-owned business based in the Fujian province, first applied to register the name Qiaodan when it applied to use the name with the logo of a baseball player at bat. It also filed several trademark applications for “乔丹” and “Qiaodan”, which were approved for registration in 1998. Qiaodan Sports has been using its 乔丹 and Qiaodan brands since 2000 and has made significant brand-building efforts over the years. Qiaodan Sports currently owns about 6,000 shops in China which trade under its name. Read the rest of this entry »

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2016/12/michael-jordan-finally-slam-dunks-his-naming-rights-claim/

German Federal High Court: Clubs can pass on fines to rioting fans

A ruling handed down by the German Federal High Court in November determined for the first time that penalties imposed on a football club by the DFB based on a fan’s misbehavior can be passed on to the injuring party. Therefore, rioting fans could now be facing large claims for compensations.

The fan’s liability is based on the spectator agreement between him and the club, which obliges him to be considerate of the club’s interest in an undisturbed course of the game. In case of a violation, the disturber is responsible for any damages that are supposed to be avoided by the infringed contractual obligation.

Football clubs are only able to organise a professional football game with the help of a superior association such as the DFB and are held responsible for the spectators’ behavior by it. The infliction of a penalty following the disturbance by a spectator is therefore a consequence that is supposed to be avoided by the agreement and thus not merely an accidental damage.

This ruling provides legal certainty for football clubs. While they have been reluctant in demanding compensations from fans in the past, this ruling might change their attitude regarding the matter. This might also have an impact on the spectators’ safety, since possible future offenders will have to take such recourses into account before causing any damages.

At the same time, it has to be considered that offenders are also punished by general courts regardless of DFB penalties, having to pay damages for pain and suffering. While the costs regarding the penalties are reasonable for football clubs, as they are based on the club’s financial capacity, they could mean financial ruin for private individuals. It is therefore questionable, if such judgements could even be executed.

Therefore, the DFB might have to consider making its system of penalties more transparent, as the amount of damages can’t currently be predicted by potential offenders.

However, the question of the extent, to which the offender will have to cover the costs, was not determined by the BGH, as this will have to be established by the Higher Regional court  in each individual case.

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2016/12/german-federal-high-court-clubs-can-pass-on-fines-to-rioting-fans/

Unlawful prohibition of sports betting in Germany

The Federal Administrative Court of Germany (BVerwG) ruled in a recent decision that if the state monopoly for sports betting persists an administrative prohibition of sports betting without a German sports betting concession would be unlawful.

This decision ties in with a recent decision of the European Court of Justice (ECJ). There the ECJ ruled that a criminal prosecution of a sports betting intermediate is contrary to EU law if the licensing process for private sports betting organizers has been held to not conform with EU law by national courts.

Dr. Michael Stulz-Herrnstadt and Christoph Engelmann commented on the decision of the BVerwG in the German magazine “GRUR-Prax” 2016 p. 542. The article can be viewed here (in German, subscription based).

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2016/11/unlawful-prohibition-of-sports-betting-in-germany/

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