The Courtroom of Enchantment (Civil Division) has dismissed Sky UK’s (Sky TV, Sky Broadband and so forth.) try and overturn an earlier resolution by the telecoms regulator, Ofcom, which again in 2022 dominated that the supplier had damaged client safety guidelines by failing to ship Finish-of-Contract Notifications (ECN) to their satellite-based Pay TV prospects.
That is a kind of conditions that requires a little bit of a recap as a way to get the correct context. Firstly, the aim of ECN’s, as Ofcom states, is to make sure that all “telephone, broadband and pay-TV suppliers” should “warn prospects when their present contract is ending, and what they might save by signing as much as a brand new deal” (often despatched between 10-40 days earlier than the tip of your contract). This additionally encourages switching.
Nevertheless, the scenario for patrons of Sky’s pay-TV packages is a little more complicated, which is one thing that we realised after some prospects of their newer broadband-based Sky Glass and Sky Stream TV companies queried why they weren’t receiving ECNs. In response, Sky’s help workforce advised a few of those self same customers that they solely issued finish of contract notifications to their broadband and cellular companies, which seems to contradict a 2022 ruling.
This brings us again to August 2022, when Ofcom concluded a long-running investigation into Sky, which discovered that they’d damaged client safety guidelines by failing to ship ECNs to their satellite-based Pay TV prospects (right here). Sky’s unique argument in opposition to this, which the regulator rejected, was based mostly on the truth that the 2003 Communications Act excludes “content material companies” from the ECN guidelines, which as a substitute solely apply to “digital communications networks” (i.e. Sky argued that their satellite tv for pc TV companies had been “content material companies“).
The above context is essential as a result of Ofcom later knowledgeable ISPreview that, regardless of offering entry to broadly the identical companies as their satellite-based merchandise, Sky Stream and Sky Glass are presently classed by the regulator as over-the-top “content material companies” delivered by way of the web, like Netflix, Disney+ and so forth. As above, content material companies aren’t regulated as communications companies and thus fall outdoors the scope of Ofcom’s guidelines (Common Circumstances). Ofcom knowledgeable us that the one exception to that is in the event that they’re delivered as a part of a bundle (e.g. alongside Sky Broadband), then ECNs would nonetheless apply.
Sky then launched a authorized problem in opposition to Ofcom’s 2022 ruling and, regardless of shedding a number of makes an attempt to overturn it, the broadcasting large then filed one other software for permission to attraction with the Courtroom of Enchantment simply earlier than Christmas 2024.
A Sky spokesperson advised ISPreview (March 2025):
“We’re dedicated to offering our prospects with the absolute best service throughout all our merchandise and provide an intensive vary of choices to assist them handle their Sky TV companies and payments.
We don’t consider that Sky’s pay-TV service is an digital communication service below the definition within the Communications Act 2003 and proceed to hunt authorized evaluation to make clear what has been an extended working, real distinction of views on interpretation of the legislation.”
This case (CA-2024-002837) lastly had its day in courtroom on the finish of final month, and the judges right now dominated to dismiss Sky’s problem (right here – credit to discussion board member plunet for recognizing).
Extract from the Case Conclusion
I subsequently reject Mr Ward’s submission that Ofcom’s case is flawed as a result of it causes a service that’s primarily content material to be regulated. Nor do I settle for his submission that Ofcom’s case makes use of the content material exemption to outline the scope of the regulation of the remaining. It merely leaves it out of account – per what the events settle for is frequent floor, that the CRF doesn’t regulate content material. It’s not (as Mr Ward put it) “the content material exception that drives a service like Sky’s into the sphere of regulation”: that’s achieved by the truth that the non-content aspect of the service consists wholly or primarily of the conveyance of indicators. As I’ve noticed above, in reference to the BEREC report, it’s Sky’s interpretation that will trigger the extent of content material for use to find out whether or not conveyance of indicators falls inside regulation. That’s counter-intuitive, to say the least, when the regulatory regime as a complete is meant to maintain the regulation of content material and of transmission separate, given the basically totally different goals of the 2 regulatory regimes.
Second, it higher accords with one of many key goals of the CRF and the EECC, specifically to convey the transmission aspect of broadcasting networks throughout the regulatory framework relevant to communication companies. We weren’t introduced with any proof as to the proportion of an general service supplied by every other broadcaster as between transmission and content material, however considered (as Mr Ward accepted it have to be) from the attitude of the end-user, it isn’t troublesome to see that the aspect of most curiosity will often be content material, slightly than how that content material is transmitted. Sky’s method would – to place it at its lowest – create a big danger of thwarting that key purpose. Ofcom’s method achieves that key purpose, while guaranteeing the separate regulation of content material and of transmission companies.
Third, and opposite to Mr Ward’s submission, the “wholly and primarily” check, on Ofcom’s interpretation, nonetheless performs a worthwhile operate: that of guaranteeing the regulation is proportionate, by balancing the varied technical elements that make up the service and enquiring whether or not that which consists of conveyance of indicators, by the entity to be regulated, is the principal characteristic. Mr Ward gave, for instance of a service that will escape regulation as a result of the conveyance of indicators aspect was lower than the principal characteristic, an electrical energy provide service that included a sensible meter. nother instance is Pay TV content material carried over the open web: on a purely “tech on tech” stability, this doesn’t qualify as an ECS.
Fourth, Ofcom’s method additionally higher accords with the target of authorized certainty. I’ve already noticed that if the wholly or primarily check is utilized to the service as a complete together with content material companies, then it’s prone to take most broadcasting companies out of the definition of an ECS, which can not have been the intention. Even when that isn’t appropriate, nonetheless, then searching for to stability the relative significance of content material and transmission companies from the end-users’ perspective includes inherently troublesome worth judgments. As Inexperienced LJ put it in argument, transmission companies and editorial management are nearly philosophically totally different. The check couldn’t be answered just by figuring out the quantity spent by the broadcaster on totally different parts.
Whereas it’s true {that a} worth judgment continues to be known as for if the check is to be utilized to what stays after exclusion of content material companies, it’s a far more simple train, prone to result in better consistency in software and thus better authorized certainty.
This could level much more strongly in Ofcom’s favour if “content material service” had been to be construed as extending to the availability of content material by its transmission, even the place that content material was produced by third events, as Mr Holmes prompt. In that case, figuring out whether or not the content material or transmission aspect was the primary or principal aspect could be much more troublesome. That, as I’ve famous above, was not the method adopted by the ECJ in UPC Nederland and Sky didn’t develop any argument on the purpose earlier than us. Mr Ward stated that in an effort to ask the Courtroom to determine not more than was strictly obligatory it had not made submissions on that time. In these circumstances, and since my conclusion doesn’t rely upon it in any method, I needn’t handle the purpose on this judgment.
For the above causes, I think about that the Tribunal got here to the proper conclusion, and I’d dismiss the attraction.
At current it isn’t identified whether or not Sky will proceed to combat the choice. ISPreview has requested Sky to remark and can report again as soon as they reply.
UPDATE twenty third August 2025 @ 6:54am
We’ve had a short remark from Sky.
A Sky spokesperson advised ISPreview:
“We acknowledge the judgment handed down by the Courtroom of Enchantment and can rigorously evaluation its findings.”
