ACT speaks at the SIGA Sport Integrity Week

On 14 September 2021, Grégoire Polad, ACT Director General, spoke (see transcript below) at the SIGA Sport Integrity Week.

Watch the recordings here

Ladies and Gentlemen,

It’s my great honour and pleasure to address you as part of the Sports Integrity Week discussions. This is a very timely event in view of the

My name is Gregoire Polad,I am the Director General of the Association of Commercial Television in Europe. The ACT represents the interests of leading commercial broadcasters in Europe, including beIN Sports, Sky, Canal+, TF1, Mediaset, RTL and other familiar household names throughout EUrope.

Our members finance, produce, promote and distribute content and services including of course live event and sport broadcasts that bring joy and entertainment to millions of Europeans across all platforms on a daily basis.

I would begin by speaking of the impact of sports in our lives, the social cohesion element that is felt in every European household and beyond. The inclusion we all feel when we all root for the same team and the meaning of loyalty that we feel for our own team. Sports is present in our lives since early childhood and it certainly remains a trusted companion for a life-time for many. Besides this intimate bond most of us share with sport, objectively it serves as a vector for integration and fan culture is undoubtedly an indispensable part of the sports experience. It is also a fact that sport related sectors represent more than 2% of the European Union’s GDP and close to 3% of employment within the Union. With a significant impact at local, regional and national level.

The value of sports events and live events is even clearer during the COVID-19 pandemic when all sports and live events were abruptly brought to a halt. Besides the devastating effects this had on the broadcasting and live events sectors, we also saw a devastating effect on the mental health on Europeans as they were deprived of such an important part of their daily life.  This was proof, if ever it was needed, that sports and live events play an undeniable role in our collective identities and social cohesion.

Although the development of the digital environment and of new technologies has made it easier for all fans to access sport events broadcasts and live events on all kinds of devices, it has also facilitated the illegal online transmission of sport broadcasts and online piracy. This is detrimental to sports events broadcasts and threatens the organisation and sustainability of the sports sector, as well as the financial stability of broadcasters.

In addition, illegal broadcasts of sports are not only prejudicial to broadcasters and sports events organisers, but are also harmful for end users, such as fans and consumers, given the risks involved. It is known that end users are often exposed to personal data theft, malware or other online related forms of harm.

While piracy and illegal streaming are unfortunately a common factor within the creative industry, broadcasts of live sports events and any other live broadcasts have one element in common: their core value is almost exclusively derived during the duration of the live broadcast.

It is in a short time-frame that our members need to ensure that this valuable content is protected. The question is therefore whether the tools to do so exist at regulatory and technical level?

To identifying illegal broadcasts of live events, a broadcaster or a third party working on their behalf, needs appropriate tools. Both technically and legally.

The good news is that software tools are able to identify illegal broadcasting of live sports events with extremely high levels of accuracy. And this accuracy is increasing year on year.

The legal tools remain very much work in progress as concerns fighting against piracy and maintaining an economic model based on territorial exclusivity. Both aspects depend entirely on the legislator.

Currently, the law both substantially and procedurally is fragmented across the EU, with legislatures that have extremely forward looking legal instruments such as dynamic injunction systems in place in Ireland or the UK. These are however isolated examples.

Most EU jurisdictions unfortunately do not benefit from such systems and instead rely on regular civil law and criminal procedures as well as the eCommerce Directive. The latter contains an obligation for intermediaries to disable access to illegal content expeditiously after being notified. The problem is that expeditious can mean 27 different timeframes depending on the country. But no country has defined it in a way that is appropriate to protect live sports events.  

What broadcasters and sports events organisers need is a real time instrument that can intervene no later than 30 minutes so that the live broadcast can maintain its value. This can only be achieved through a European legislative proposal which would harmonise the rules for notice and take down for infringing content.

The EU has several options to answer to this long-lasting plea from broadcasters and sports events organisers. At the end of last year, the EU proposed a flagship legal instrument that would amend and update the eCommerce Directive called the Digital Services Act (DSA). The motto of this proposal, which we fully support, is: “what is illegal offline, should be illegal online”.

Unfortunately our analysis of the DSA demonstrates that the motto is not reflected in the detailed proposals. This is unfortunate because while we agree that the DSA will be a an important piece of legislation, the guiding principle should be balancing all fundamental rights, not defending a disproportionate application of freedom of expression online at the cost of the fundamental right to property and to the freedom of conducting business.

Sports organizers and broadcasters would benefit from for further harmonization of procedures and remedies, in the context of the DSA. Here’s a few things that would move the needle:

– providing a notice and action mechanism that would be appropriate and future proof, with immediate take down and stay down for content that is protected by copyright and related rights and notably live content,

  • introducing dynamic injunctions as a European standard in the area of piracy of live content,
  • a workable and efficient trusted flagger status for entities that have demonstrated experience in notifying illegal broadcasts to online intermediaries.
  • identifying, categorizing and addressing the different types of entities that build the complex architecture of the piracy worldin the scope of measures foreseen.

On this last point, I refer to entities such as providers of dedicated server services/leasing servers facilitate piracy by allowing hosting solutions to illegal streaming sites or providers of “reverse proxy” services which are an essential link in the web woven by pirates to cover their tracks. It should be clarified that those entities too have to comply to the notice and action mechanism and the Know your Business customer obligation. This could play a major role in reducing the ability for pirates to continue to access that kind of services that are fundamental to the piracy ecosystem.

Although the DSA is the horizontal instrument that could address all existing issues, if the reluctance of policy makers continues, although we hope it will not, there is the option of a separate legislative proposal which would address specifically the issue of piracy of live broadcasts.

Both options were already called for by the European Parliament earlier this year through a legislative report which was adopted with a very vast majority, thus demonstrating that there is a political and a democratic will to resolve these pending issues.

Regardless of the legal instrument of choice, there needs to be a consensus amongst policy makers that piracy will not just simply go away, and that it is not acceptable to leave it unaddressed. As regards AV content, the European Union is pouring via the MEDIA programme millions into content. It is natural that such investments be protected alongside private sector investments. Measures should allow for tangible and workable tools that reflect the fleeting nature of the value of live events and provide for quick take down, no later than 30 minutes. With the objective of reaching real-time take down in cases of infringing live event broadcasts, especially provided that there is no doubt about the ownership of the right concerned and the fact that the transmission of the sports event in question was not authorized and thus illegal.

The European Commission should consider and assess the impact and appropriateness of introducing injunction procedures aimed at allowing real-time disabling of access to, or removal of, illegal online live events content, based on the model of “live” blocking orders and “dynamic injunctions”.

In conclusion, we do have the tools on several levels to take on the pirates, and ensure that live events organisers, sports events organisers and broadcasters stop hemorrhaging endless resources in the black hole of piracy. Potential revenues that are not reinvested in European films, series, grass root leagues, live theatre… and this to the detriment of those jobs and Europeans sporting and entertainment needs. 

We therefore look forward to the European Institutions to get cracking and ensure all possible avenues are explored to arrive – dare I say – to an expeditious outcome.