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Our decision was justified, media houses tell court

By Kamau Muthoni | March 17th 2015 at 00:00:00 GMT +0300

Kenya: Kenya’s top three broadcasters have defended their decision to air adverts against two pay television stations they accuse of infringing on their intellectual property rights.

The Standard Group, Nation Media Group and Royal Media Services told High Court Judge Wilfred Mabeya that Star Times and GOtv aired their content without permission.

Through their lawyers Issa Mansur and Kiragu Kimani, the three media houses accused the two foreign-owned firms of failing to adhere to a Supreme Court’s ruling and directions contained in letters from the Communications Authority of Kenya (CA).

The lawyers told Justice Wilfred Mabeya their clients did not defame the two companies in the commercials, but only stated facts, adding that Star Times and GOtv had already broken the law.

The media houses asked the High Court to lift temporary orders obtained by the two pay TV firms against their advert saying the arguments canvassed by the two firms before the court were untrue.

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They said the temporary orders barring the three medial houses from running an advert on illegal broadcasting of their content were obtained by concealing facts about the directions by CA, and subsequent demand letters by the media houses.

The court had issued orders restraining the broadcasters from running the advert stating that the two pay TV companies were illegally airing their programmes. Yesterday, the three media houses maintained that the advert was factual because none of the foreign entities had sought their discretion as required by law.

The two lawyers submitted that the Supreme Court in its ruling did not waive the right of the media houses to intellectual property, and that the order by the highest court in the land was endorsed by CA’s communication to the carriers.

“The plaintiffs (Star Times and GOtv) did not come to court with clean hands. They had hidden facts contained in letters by CA and the three media houses. A party that has conducted itself in this manner does not deserve the court’s favourable exercise of discretion or grant of equitable remedy,” argued Mansur.

However, the two pay TV firms maintained that consent from the three media houses was not required for them to air their content. They claimed that the Supreme Court held that there was a copyright exemption in respect to the carriers having the three media houses’ content in their pay TV decoders.

But the media houses refuted the claim, arguing that this was a misinterpretation of the Supreme Court’s ruling.

 SEEK CONSENT

The three media houses argued that the Supreme Court upheld the decision by the defunct Communication Commission of Kenya, requiring the carriers to seek consent from the media houses before airing their content.

The plaintiffs’ action of airing the defendant’s contents was illegal and the latter intended to remedy this but the case may delay and prejudice the fair hearing of the defendants’ counter claim against the two firms, the court heard.

CA, the three media houses said , wrote to Star Times and GOtv on November 12, December 3 and 31 last year, indicating that KTN, NTV and Citizen TV and QTV were not must-carry channels. Justice Mabeya will, on May 22, make a ruling on the injunction stopping the three media houses from airing the advert.


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