The importance of securing public access to major sporting events: Poland’s volleyball blackout

In this article, Karol Laskowski examines the state of Polish and EU law as it pertains to securing free-to-view public access to major sporting events, and reflects on what action needs to be taken to avoid the public missing out on free access to prestigious and popular events in the future.

The Volleyball Men’s World Championships 2014

Poland is currently hosting the Volleyball Men’s World Championships (Volleyball Championships), which started on 30 August 2014; but, bizarrely, most Polish fans won’t be able to follow this great event.

Polsat, a Polish broadcasting group engaged in organizing the Volleyball Championships and that holds exclusive broadcasting rights to the event, has officially announced that the games will be shown in Poland only on its pay-to-view channels available on satellite and cable platforms (save for opening game: Poland vs. Serbia).

Polsat’s decision has already triggered a public debate over whether Poland’s legislation should secure public access to such tournaments on free-to-view channels.¹ 

Polish rights to free-to-view “major events”

The Polish Broadcasting Act 1992

The Polish Broadcasting Act of 29 December 1992 (the “Act”) contains at Article 20b specific regulations (the “Major Event Regulations”) that require events of major importance for society (“Major Events”) to be shown on qualified channels, namely:

• channels recognized as nationwide based on the Act or broadcasting license, and
• accessible free of charge (save for standard TV subscription as defined in the Licence Fees Act of 21 April 2005 and basic fees charged by cable network operators) (“Qualified Channels”).

Major Events may be shown on other channels (e.g. pay-to-view channels) only if it is already accessible on qualified channels.

In practice, from the Polish perspective, it means Poland’s Major Events should be accessible on the television channels of Poland’s public broadcaster (TVP1 and TVP2) or possibly other nationwide broadcasting channels that are free-to-view available on digital multiplexes (including Polsat’s free channel, which has approximately a 95% coverage of Polish viewers). So effectively there is a prohibition against Major Events airing exclusively on pay-to-view channels. 

The exemption

In accordance with article 20b section 6 of the Act, there is one exemption to this rule. To qualify for this exemption, a broadcaster of a pay-to-view channel must be able to demonstrate that none of the broadcasters of Qualified Channels were “ready to conclude a contract” ensuring the coverage, otherwise they could be subject to a fine imposed by the NBC. 

This occurred in 2012, when the Polish national football team played Montenegro and Moldavia in the qualifying rounds of the 2014 FIFA World Cup. The games were recognized as Major Events, but since none of the broadcasters of Qualified Channels decided to show them, they only appeared on pay-per-view basis (i.e. not a traditional pay-to-view channel but as a single broadcast available upon single transaction fee offered by cable and satellite operators). The NBC was critical of the situation, but – to our knowledge – did not fine the operators for formal reasons (it was questionable whether the providers of pay-per-view services, including cable and satellite operators, were the broadcasting channels; only the latter ones could be subject to the fines from the NBC).²

The list of Major Events

The Act contains a list of Major Events, established by taking into account “a widespread social interest”, and grants the Polish National Broadcasting Council (NBC), the national regulator and supervisory body for all the audiovisual media service providers under Polish jurisdiction, powers to adopt a regulation (i.e. binding legislative act of the NBC) to add to the list.  

So far, however, the NBC has not exercised its powers to extend the list, and the current Major Events under the Article 20b section 2 of the Act is limited, in terms of sporting events, to:

• The Olympic Games and the Winter Olympic Games;
• The semi-finals and finals of the FIFA World Cup Finals and the UEFA European Football Championship, as well as all other matches at those events which feature the Polish national team, including qualifying games; and
• Other football matches featuring the Polish national team in official tournaments, and matches featuring Polish clubs in the UEFA Champions League and UEFA Europa League.

The AVMS Directive

The Major Event Regulations were adopted into the Act in 2000, and are in line with the rules on Major Events laid down in the Audiovisual Media Services Directive 2010/13/EU (“AVMS Directive” – previously the Television Without Frontiers Directive (89/552/EEC).³

Pursuant to the AVMS Directive, Member States are entitled to adopt measures aimed to ensure that Major Events are not be broadcasted “in such a way as to deprive a substantial proportion of the public in that Member State of the possibility of following such events by live coverage or deferred coverage on free television” (see article 14 AVMS Directive).⁴ Examples of Major Events under the AVMS Directive include: the Olympic Games, the football World Cup and the European football championship (See point 48 to the preamble of AVMS Directive).

Acting within these powers, Member States may create a list of Major Events and communicate it to the EU Commission for publication in the EU’s Official Journal. Every measure taken by the Member States should be transparent and proportionate.