GeekLawyer’s Blog

You know how it is don’t you? You’re a media baron & you just spent this month’s beer money securing a UK football broadcasting monopoly. Then along comes some other bugger selling the same thing from Europe and for less. Annoying.

No wonder then that Sky are throwing a bit of a strop. What the hell’s your chance of shafting your publicans for £2000 a month when they can go to Stavros from Athens and pay £500 a year? Ouch.

Sky’s strategy is about the only one open to it: intimidation of publicans. They’ve financed a series of prosecutions of publicans based on Section 297 of the CDPA alleging that they are illegally receiving satellite transmissions. Hundreds have been convicted and fined or settled for large swathes of cash out of court. Murdoch’s legions of the night swarmed all over the pubs (nice work if you can get it) hunting miscreants threatening his profits.

And then up pops Brian bloody Gannon of the Fisherman’s Inn at Littleborough, near Rochdale, giving it the “I’m innocent mate and gonna plead it.” routine, and spoiling the strategy by appealing to the Crown Court and winning.

The catch is that Section 297 of the Copyright Design and Patents Act 1988 says:

297.(1) A person who dishonestly receives a programme included in a broadcasting or cable programme service provided from a place in the United Kingdom with intent to avoid payment of any charge applicable to the reception of the programme commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

This was designed only to prevent the public using hacked satellite boxes not to enforce the monopoly of a media baron. The main arguable point of construction here is that the transmission from Greece had its ultimate origin in the UK and even that is arguable since the final upleg to the satellite is from Greece. However the requirement of intent combined with the payment of a fee to the Greek satellite company by Gannon would seem to remove any mens rea element and render a weak prosecution case. Surprising then that so many magistrates convicted. Oh, what am I saying? Its tougher to get Tony Blair to say “a peerage for £2 million? sure, why not.” than to get a magistrate to convict.

To rub salt into the wound the Television Without Frontiers Directive 89/552/EEC, while it may sound like a naff ITV gameshow, has something to say on EU cross border satellite transmissions.

The Directive establishes the principle that Member States shall ensure freedom of reception and shall not restrict retransmission on their territory of television programmes from other Member States.

Even if they were to win on the CDPA they’d get nailed by the Directive. Overall then perhaps not entirely surprisingly Sky take a different view of all this. It’s just a narrow win “on a technicality”. Uh huh, my win is a technicality not a landmark and vice versa. Righty-ho.

“This is not a landmark case,” says a spokesman. “It is important that publicans everywhere know this is completely untrue.

Like bollocks.