Fed Court: Optus didn’t infringe copyright, but AFL can liken it to “stealing”
SingTel Optus Pty Limited v Australian Football League  FCA 138
The copyright dispute involving Australian telecommunications provider Optus and Australian digital sports broadcasting rights holders recently took on a new twist as Optus and the Australian Football League (AFL) returned to Court to ventilate fresh allegations against each other.
This latest case concerned comments made by the AFL’s Chief Executive Officer, Andrew Demetriou, in the aftermath of the Federal Court’s decision on 1 February 2012 that Optus had not engaged in copyright infringement by offering its TV Now service to individual subscribers for the purpose of recording free-to-air digital television (including AFL and other sporting broadcasts). Optus was held not to have infringed copyright in the sports broadcasts because the Court held that TV Now subscribers could rely on the “time-shifting” exception under section 111 of the Copyright Act, even though in some cases the delay between the live and recorded broadcasts was as little as two minutes.
Andrew Demetriou’s statements: Optus “lifted content”
On the weekend of 18 and 19 February 2012, the Herald Sun newspaper published an interview with Mr Demetriou. The published article included comments from Mr Demetriou that Optus’ conduct in offering the TV Now Service was “akin to stealing” and that Optus was “lifting content” owned by the AFL and other sporting bodies.
Optus immediately instituted proceedings against the AFL and Mr Demetriou, claiming that they had engaged in misleading and deceptive conduct in breach of section 18 of the Australian Consumer Law, and seeking to restrain the AFL and Mr Demetriou from making any further public statements about the case or about Optus.
Statements “honestly held” and not misleading
On 28 February 2012 Justice Edmonds dismissed Optus’ case against the AFL and Mr Demetriou, holding that:
- Mr Demetriou’s statements were not made “in trade or commerce” because they were made as part of an interview about a wide range of topics, not all of which were related to the AFL or Mr Demetriou’s position as CEO of that organisation, and not all of which were part of the AFL’s usual trading activities; and
- Mr Demetriou’s statements, when viewed in context, were not misleading or deceptive, (notwithstanding that the Federal Court had previously held that Optus had not infringed copyright) because:
- they were statements of Mr Demetriou’s “honestly held opinion”, not statements of fact; and
- alternatively, Mr Demetriou’s statements were “a vernacular or shorthand description of what Optus is incontrovertibly doing”, namely providing “equipment [that] records and … streams to its customers, the broadcast of games in which AFL holds the copyright”, without paying any money to the AFL for that content.1
The parties will again return to Court on 14 and 15 March 2012, when the Full Court hears the appeal of the original Federal Court decision dismissing the copyright infringement claims.
- At paragraphs  and  of the judgment.