Safaricom loses fight over DStv pirating dispute


Safaricom headquarters in Westlands, Nairobi. PHOTO | DENNIS ONSONGO | NMG

MultiChoice has won a court battle against internet service providers including Safaricom after the High Court issued a directive ordering them to take down pirated content from the pay-TV firm.

Justice Wilfrda Okwany directed Safaricom and Jamii Telecom to pull down content which MultiChoice says should be viewed exclusively on its SuperSport channel.

MultiChoice filed the case in 2019 seeking to compel the telcos to block live streaming of sports on its networks. A total of 141 websites host content that MultiChoice said was infringing on copyright material.

Justice Okwany ruled that MultiChoice Kenya had lawfully issued valid take-down notices to the ISPs and they ought to have complied with the same.

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The judge further found that the ISPs have not given any lawful excuse for their failure to comply with the notices. Safaricom pleaded with the court for time to comply with the directive.

“The upshot is that the petitioner has made out a case,” the judge said.

Subscribers to Multichoice’s DStv and Gotv packages pay a monthly fee while those streaming the games on the controversial websites only incur data costs.

The High Court had in November 2020 issued a temporary order directing the ISPs to disable the websites but Safaricom moved to the Court of Appeal and managed to suspend the decision, arguing that the telco would suffer losses and reputation if the decision remains in force.

The telco listed civil and criminal lawsuits from its customers besides a tainted reputation in the global communications arena as some of the likely repercussions from attempts to control the behaviours of its subscribers.

The pay-TV firm said SuperSport has made substantial financial investments to acquire and hold the exclusive broadcast and transmission rights for European Super Cup, Championship & Europa Leagues, English Premier League and La Liga in Kenya and other sub-Saharan Africa countries.

MultiChoice holds that rebroadcasting and retransmitting of the football matches without its authorisation is a breach of its rights.

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The firm said the constant illegal broadcasting over the internet of their protected content continues to dent its revenues from paid-up subscriptions.

Safaricom on its part argued that complying with the order would affect the rights of other copyright holders and that the damage to its local and international reputation would be irreparable.

The decision marks the first time the court has sanctioned takedown notices in terms of the 2019 Copyright Act. Section 35B (1) of the Act states that “A person whose rights have been infringed by content to which access is being offered by an Internet Service Provider may request by way of a takedown notice, that the ISP removes the infringing content.”

“We have been fighting for years to ensure that there are legal copyright protections and that those protections are enforced,” MultiChoice Kenya managing director Nancy Matimu said as she welcomed the decision.

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She added that with the verdict, any business looking to invest in Kenya can rest assured that their intellectual property will be protected.

“The court has reaffirmed the stance of the law that copyright must be protected.”

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