Introduction and summary

Have you seen a tempting offer recently to watch sport using a virtual private network so you are not geo-restricted?  In this article, Robyn Chatwood and Peter Divitcos explain how the benefits of virtual private networks (VPNs) in overcoming access restrictions on live international sports events might be accompanied by the risk of contract breach or intellectual property infringement. The article also discusses the impact of changes to anti-siphoning laws being mooted which may also adversely impact digital consumers of sports content.  

What is a virtual private network and how are they used for sports?

A virtual private network (VPN) is a system that creates a secure internet connection between one computer and another (or between networks) in a way that restricts certain (usually public) access by users who do not have direct access to it.

One example might be a streaming service that only streams a US basketball match to viewers in the US. With the help of a VPN, users can link their device to an American server, making it appear as though they are in the US.

Why do sport fans want to use a virtual private network?

Sport fans want to use VPN technology to access international sports content because it is otherwise “geo-blocked” – that is, the website denies access to it or to its services to users outside specific locations. A user who is geo-blocked is prevented from accessing the content even if lawfully entitled to access it.  

Other than geographical restrictions, fans sometimes experience slow streaming speeds, buffering and blackouts while watching international sports events. Consumers look for VPN services that work reliably, bypass geographic restrictions, offer fast speeds and unlimited bandwidth, and strong encryption.

What are sports broadcasters doing about VPNs?

The response from streaming platforms, including sport broadcasters, to the increasing use of VPNs has been to deploy VPN-detection technologies. Streaming platforms go to great lengths to manage their content distribution channels and to prevent consumers from accessing copyrighted material – often due to their own licensing arrangements and permissions. 

The most recent Consumer Survey on Online Copyright Infringement report commissioned by the Australia federal Attorney-General’s department about the Australian community showed that:

• 59% of survey respondents consume content lawfully - with the balance consuming some content in ways which are probably unlawful;
• 78% of respondents access entertainment online, including television, films, music, video games and sports; and
• 38% of VPN users use a VPN to access content in potentially unlawful ways, including to access content that they could not otherwise access from Australia.¹

Use of VPN-detection technology is attractive to content providers as it may avoid the need to take direct legal action against a consumer. This type of direct action may result in a consumer backlash or be impractical and expensive given it may involve navigating and enforcing intellectual property rights across borders and complex legal terrain. 

Is using a VPN to access geo-blocked sport broadcasts unlawful in Australia?

Our article Virtual Private Networks:  A new frontier for copyright infringement? considers the legality of a VPN to circumvent geo-blocking technology. 

In short, assuming geo-blocking is an access control technological protection measure (ACTPM) under Australia’s federal Copyright Act 1968 (Cth) (Copyright Act) and the VPN software circumvents it, then doing acts that result in its circumvention are in Australia: 

1. unlawful only in circumstances - where the vendor or user of the VPN software knew, or could have reasonably known, they would be used to circumvent the geo-blocking technological protection measure (TPM); and
2. lawful in circumstances - where the vendor or user of the VPN software did not know, or could not have reasonably known, they would be used to circumvent them.

In addition to infringement of copyright laws, users and VPN service providers may be at risk too of breaching contractual obligations if their agreements with the content providers or owners or commercial arrangements prohibit the use of VPNs or circumvention of ACTPMs, TPMs or geo-blocks.

Beware also the website blocking provisions may work against carriage service providers

Sports fans should also bear in mind that Australian copyright laws contain provisions which allow owners of copyright material to obtain an injunction ordering carriage service providers to block websites or online locations where the content infringes copyright.²  

Some VPN operators may be carriage service providers (as that term is categorised under Australian telecommunications laws).³ An injunction against a VPN operator may be available permitting users to make use of the carriage service to access websites offering infringing content.

That's not all - Australia’s changing anti-siphoning laws may also adversely impact sports broadcasting and fans

Australia’s anti-siphoning scheme

Australia is modernising its anti-siphoning scheme, which has been in place for close to 30 years.⁴

The anti-siphoning scheme promotes free access to nationally significant events by preventing subscription television broadcasters from televising an event on an anti-siphoning list unless a free-to-air television broadcaster has a right to do so as well.

Many content options now exist in Australia’s TV market and free-to-air broadcasters are experiencing being crowded out in the competition for viewer eyeballs as larger, international online streaming services have entered the Australian market.

Critically, streaming services are not currently subject to the Australian anti-siphoning scheme, and so it is not unlawful for them to acquire rights to iconic sporting events ahead of local free-to-air broadcasters.

The result is iconic sporting events are increasingly becoming available only behind online paywalls. This market shift may be one of the contributors to the demand for VPNs – with their capacity to assist viewers to find content for their beloved matches and events in a lower cost way. 

What will change and why should those in the sports ecosystem care?

The Communications Legislation Amendment (Prominence and Anti-siphoning) Bill 2023 (Cth) has been put forward by the Australian federal Government and it was referred by the Australian Senate to the Senate Standing Committees on Environment and Communications Legislation Committee. The Committee released its report recently, which expressed support for change by both major political parties.⁵

In response, key changes are being proposed to Australia’s anti-siphoning scheme such as:

• Streaming services to be regulated: For media content service providers (other than free-to-air television broadcasters), it is proposed to prevent them from acquiring a right to provide coverage of an event to audiences in Australia until a free-to-air broadcaster has acquired a right to televise the event. This is intended to apply to subscription television broadcasting licensees and streaming services.
• More time for free to air broadcasters to acquire rights: For sporting events on the list for anti-siphoning protection, currently these are automatically delisted six months prior to the event where a free-to-air broadcaster has not acquired the right to televise the event.
  
  Rights to iconic sporting events in Australia are now routinely acquired more than 12 months before they take place, but the automatic delisting period will be extended to 12 months (unless the Minister retains the event where at least one commercial television broadcasting licensee or a national broadcaster has not had a reasonable opportunity to acquire the rights to televise the event concerned).
• New events to be protected: Additionally, the list of events will be modernised to bring it in line with contemporary community expectations. Additional events to be added include all events held as part of the Summer Paralympic Games, finals series matches of the Australian Football League (AFL), the National Rugby League (NRL) Women’s Premiership, and the complete Women’s Cricket Ashes played in the United Kingdom.⁶
• Prominence framework: The reforms also introduce a prominence framework for connected TV devices. The way content is available on TV interfaces has changed and the positioning and placement of services is now monetised.  It is becoming more difficult for consumers to find free-to-air television broadcasters. Manufacturers of television devices will need to adhere to minimum prominence requirements - likely to include presenting a live television tile/tab/link.
• Penalties: Civil penalties will apply for contraventions of the minimum prominence requirements and the anti-siphoning scheme in the order of the greater of:
  • a maximum of 10,000 penalty units (as at the date of this article this equates to AU$3,130,000 or approx. US$4,730,000);
  • three times the value of the benefit obtained as a result of the contravention; or
  • two per cent of the annual turnover of the body corporate during the last 12 months.

Impact on fans

Digital users may be disadvantaged if iconic sporting events remain free for people with an aerial, but not accessible for those that watch sport on digital apps (such as ABC iView, 7Plus or 9Now) as they may not be able to stream the events on their devices.

Last year's 2023 FIFA Women's World Cup semifinal between Australia and England was perhaps an indicator of just how many people stream sport - with more than 7 million Australians watching the game with over 1 million watching through the internet.⁷

People watching sport through streaming services will be concerned if they are not able to access all iconic sporting events via digital means.

What next?

For copyright owners (and licensees) including streaming platforms providing sports content, they should review their contractual arrangements including terms of services and carefully consider how they deal expressly with geo-blocks and technological protection measures to make sure they are adequately protective.  

Manufacturers, suppliers and sellers of VPNs should also consider if their businesses are or might be promoting their VPN services as a way to circumventing geo-blocks or other measures designed to prevent intellectual property infringement.  

Sports fans should be careful to not infringe terms of service when watching sports content over digital channels – whether or not using a VPN.

Sports leagues, broadcasters and sports fans and others in the sports ecosystem should keep a close watch on the passage of the new anti-siphoning laws and legal developments relating to broadcasting and sports. This is especially important to owners of events and competitions if negotiating broadcast rights, sponsorships or partnerships.

Please contact Robyn Chatwood, Joy Atacador, Vanessa Gore, Peter Divitcos or your usual member of the Dentons IP & Technology team or the Sports sector team for further information or assistance with any intellectual property or technology matters.

1. Orima’s 2023 Consumer Survey on Online Copyright Infringement commissioned by the Australian Attorney-General’s Department, page 3, 45.
2. Copyright Act, section 115A.
3. Telecommunications Act 1997 (Cth).
4. Communications Legislation Amendment (Prominence and Anti-siphoning) Bill 2023 (Cth). Australia's Broadcasting Services Act 1992 (Cth) contains the anti-siphoning laws that automatically grant Australia's free-to-air broadcasters first rights to certain sporting events.
5. See The Senate Environment and Communications Legislation Committee Communications Legislation Amendment (Prominence and Anti-siphoning) Bill 2023 [Provisions] Report April 2024 at Communications Legislation Amendment (Prominence and Anti-siphoning) Bill 2023 [Provisions] – Parliament of Australia (aph.gov.au)
6. Second Reading Speech, Minister for Communications, Communications Legislation Amendment (Prominence and Anti-siphoning) Bill 2023.
7. Peter Lusted, ABC News, Proposed changes to anti-siphoning laws could prevent millions of viewers from watching 'key sports' for free, Greens say, https://www.abc.net.au/news/2024-07-03/anti-siphoning-laws-could-prevent-millions-from-free-sport/104050960.