The government has also published an exposure draft of a proposed new anti-siphoning list, which would expand the current list by adding certain women's sporting events and events held as part of the Paralympic games.

The Bill has been referred to the Senate Environment and Communications Legislation Committee for review, with the Committee's report due by 26 March 2024. The Committee is accepting submissions on the Bill until 22 January 2024, which can be made online here. 

Key takeaways

• The new prominence framework would require manufacturers of regulated connected television devices to comply with a set of "minimum prominence requirements" related to the accessibility on their devices of certain broadcasting services and broadcasting video on demand (BVOD) services. The requirements will be prescribed in regulations, with an exposure draft set to be released in early 2024.
• Manufacturers of regulated television devices and their related bodies corporate would be prohibited from supplying a device that is not compliant with the new framework and obliged to take reasonable steps to ensure their devices continue to be compliant after they are supplied. The new obligations would only apply to devices manufactured on or after the day, that is, 18 months from when the amendments commence.
• The new anti-siphoning scheme would expand the existing scheme to apply to online streaming services and extend the automatic delisting period for events on the anti-siphoning list from six months to 12 months.
• Significant new penalties will apply for contravention of both the new prominence framework and the revised anti-siphoning scheme. For a body corporate, the maximum penalty will be the greater of:
  • 10,000 penalty units (AUD 3.13 million at the current penalty unit rate).
  • Three times the value of the benefit obtained as a result of the contravention.
  • 2% of the annual turnover of the body corporate during the last 12 months if a court cannot determine the value of the benefit obtained from the contravention.

The new prominence framework

The new prominence framework would target manufacturers of "regulated television devices" (covering certain internet-connected television devices designed for viewing television, such as smart televisions, set-top-boxes, and plug-in devices) by regulating the accessibility and prominent display of "regulated television services" (being broadly national television broadcasting services and certain app-based BVOD services provided by Australian free-to-air broadcasters).

At the core of the prominence, framework would be a set of "must-carry obligations", which would require device manufacturers to comply with "minimum prominence requirements" to be prescribed by regulations. The proposed must-carry obligations in the Bill require that manufacturers of regulated television devices (and their related bodies corporate):

• Must not supply devices in Australia if they do not comply with the minimum prominence requirements.
• Must take reasonable steps to ensure devices continue to comply with the requirements after they are supplied.
• Must not charge a regulated television service provider in relation to the device complying with the requirements.
• Must take reasonable steps to ensure that the audiovisual content provided by a regulated television service is not altered or interfered with.

The Bill sets out a number of items the minimum prominence requirements may address, including access to regulated television services on the device; the display, location, or positioning of the regulated television service on the device; and the installation, availability, and updating of BVOD apps. While the regulations prescribing these requirements are yet to be released, the government has announced it intends to require manufacturers of regulated television devices to:

• Provide access to regulated television services, including by pre- or auto-installation of regulated television services on their devices; and
• Present tiles, tabs, or links for live television and BVOD services in a similar size and format as the tiles, tabs, or links for other content services (such as streaming services) that are made available on the device.

The Australia Communications and Media Authority (ACMA) will have information-gathering and enforcement functions and powers in relation to the new prominence framework. An entity that breaches the must-carry obligations in the framework may be liable for significant civil penalties, as outlined in the Key Takeaways above.

The revised anti-siphoning scheme

Australia's existing anti-siphoning scheme – which has been in place for close to 30 years – prevents pay television broadcasters from obtaining the rights to events specified on an anti-siphoning list made under the BSA within a certain period unless a free-to-air broadcaster has acquired rights to televise the event.

The Bill proposes to expand the scope of the anti-siphoning scheme to include media content service providers (such as providers of streaming services), which were previously not restrained from acquiring rights to events on the anti-siphoning list ahead of Australia's free-to-air broadcasters. Conversely, the Bill will also bring forward the delisting time prior to the start of events: an event will be automatically delisted 8,760 hours (approximately 12 months) prior to its start time (currently, this period is set at 4,368 hours, approximately six months) unless the relevant Minister declares that the event is to remain in the list. Rights to delisted events may be acquired without restriction.

The government is also proposing to further expand the anti-siphoning list, by adding events held as part of the Paralympic Games, as well as women's sporting events in the fields of AFL, NRL, and cricket. This follows amendments to the anti-siphoning list in September 2023 to add selected FIFA Women's World Cup matches.

ACMA will have information gathering and enforcement functions and powers in relation to the reformed anti-siphoning scheme. As outlined in the Key Takeaways above, significant penalties may apply for a contravention of the scheme.

We want to thank Renata Beris, Summer Clerk at Baker McKenzie and Kirsten Foley, Graduate at Law at Baker McKenzie for their contribution to this alert.