We should pay attention to judgment in Multichoice Kenya vs. Safaricom & Others

The High Court in Kenya delivered a judgment last month that undoubtedly reverberated and will reverberate beyond its borders for a while. This decision will go a long way in redefining the sports broadcasting and media landscape in the region and beyond.

In Multichoice Kenya vs. Safaricom & Others Miscellaneous Application No. 567 of 2019, a Kenyan court held that Internet Service Providers (ISPs) are liable for failure to take down when notified of infringing material on their platforms of owners and exclusive licensees of broadcast rights to sports events/competitions.

Multichoice owns the audio-visual broadcast and transmission rights to several football events; the English Premier League, Uefa Champions League, La Liga, etc. Over 141 pirate sites on internet sprouted purporting to broadcast the said football events/leagues/tournaments via Safaricom and Jamii Telecom. Multichoice, under the Copyright Act in Kenya, issued takedown notices to the two ISPs to remove the alleged infringing content. ISPs under the Kenyan copyright law are under an obligation to remove infringing material hosted on their sites when notified adequately.

The particular Section 35A of the Kenyan Copyright Act is similar to Uganda’s Section 29 of the Electronic Transactions Act though the Kenyan one is couched more stringently and is more rights-holder leaning.

Safaricom and Jamii Telecom by and large ignored Multichoice’s warnings and as a result, the former were punished by court for their failure, mostly deliberate, to take down the infringing content from their sites.

In this digital age, many things have been democratised just by a swipe or a click of a button, including access whether legally or illegally to what was previously the exclusive property of certain gatekeepers in the media space. The public interest in sport has driven this phenomenon with sites like hesgoal.com enabling those who would have hitherto for instance not been able to watch Formula One or a tennis Grand Slam due to the perhaps steep prices that come with owning DStv to be able to enjoy these events.

Yet as we all know, sports business is big business and its commercialisation comes with these deals couched in often exclusive terms cutting out free-riders. You can’t blame a media company that gets such a broadcasting deal for aggressively protecting its Intellectual Property, thus shifting the competition and rivalry in sports from on-field to off-field.

A paradox is then created; corporate sponsorships, broadcast deals et al create a major revenue stream for sports bodies aimed at exploiting the exclusivities that come with sports, and on the other hand, small commercial players who, due to the public nature of sports, are both trying to cash in and bring the games to the lowest of the lowest. This poses the still not conclusively answered question; is sports a public product?

Kawowo Sports, which had been live streaming local rugby games and bringing them to the comfort of our living rooms, was suddenly stopped by Uganda Rugby Union (URU) after it emerged that URU was in talks with another media company that it wanted to give the broadcasting rights over local rugby games. This development, I recall, caused an uproar on social media among the rugby faithful who accused URU of maladministration of “their” sport.

Without taking sides, I hope this column answers some of those questions, especially whether or not rugby is “their” sport.

This Multichoice-Safaricom case is an interesting precedent and now shows us that ISPs-telecommunication companies must trade carefully as far as hosting infringing sports content is concerned on their sites.

Of course, this is bad news for sports live streamers, but I guess we cannot have our cake and eat it.

The author is a Sports Lawyer and Lecturer

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