Supreme Court hears claim over unlicensed TV channels in Gibraltar 

The Supreme Court is hearing a civil claim that could impact the number of television channels that people are able to view in Gibraltar. 

The claim, brought by Gibtelecom against Gibfibre and Gibsat and two directors, alleges they intentionally caused damage to Gibtelecom’s interests through unlawful means by offering a television bundle that included unlicensed channels. 

Gibtelecom, whose market share in broadband and TV products fell from 70% to 30%, argues customers would not have switched provider had the offering been limited only to licensed channels. 

Gibtelecom is seeking compensation for losses sustained over the past decade and an injunction to prevent the defendants from broadcasting any channels for which they do not hold a valid licence. 

The defendants in the case deny the claims and say they are not liable to Gibtelecom for any lost revenue. 

They argue that if Gibtelecom sustained any losses, it was because the company had until 2020 relied on a copper-based legacy broadband product that was inferior to Gibfibre’s full-fibre offering, which included a TV bundle with both licensed channels and unlicensed channels carried through Gibsat. 

The case, which is being heard by Puisne Judge Matthew Happold, opened on Thursday with submissions from lawyers representing both parties. 

Gibtelecom moved to a full-fibre product and a TV offering due to competitive pressure from rivals such as Gibfibre, the court heard. 

The defendants say commercial arrangements between content creators and broadcasters are subject to geographical restrictions that mean some premium channels including Sky cannot be licensed in Gibraltar. 

But Anthony De Garr Robinson, KC, representing Gibtelecom, said Gibfibre nevertheless offered a broadband TV bundle that included unlicensed channels carried by Gibsat. 

He told the court the product took significant market share from Gibtelecom as TV was “a key consideration” for users, with the package including a “really remarkable” offering of channels even though many were “thoroughly unlawful”. 

The defendants, he alleged, had knowingly used unlicensed Gibsat channels to grow their business at the expense of Gibtelecom. 

The court heard that Sky had written to the defendants in 2018 asking them to “cease and desist” from rebroadcasting its channels in Gibraltar. 

“No broadcaster in their right mind would allow a customer to rebroadcast their channels,” Mr De Garr Robinson said. 

But Thomas Plewman, KC, acting for Gibfibre and Gibsat, said the defendants did not accept that broadcasting unlicensed content could lead to a claim against them alleging unlawfulness. 

He said it had “always been widely known” in Gibraltar that some channels were unlicensed and that despite Gibtelecom’s “holier than thou” approach, it too provided channels that could not be licensed in Gibraltar such as BBC and other mainstream UK and Spanish channels. 

He said that while GibTelecom had previously held a monopoly on telecommunications in Gibraltar, the entry of competitors after the market was liberalised led to the end of that dominant position, to the benefit of consumers. 

He told the court operators such as Gibfibre and Umee – the latter is not named in the claim – had invested heavily in infrastructure to keep up with technological change and that Gibtelecom had been slow to respond with its own upgrades. 

Mr Plewman noted too that even though Sky had sent a cease-and-desist letter in 2018 and later engaged in a back and forth with Gibfibre and Gibsat, the UK broadcaster never sought to obtain injunctive relief to prevent unlicensed channels being rebroadcast. 

There had been no complaints about the unlicensed channels until Gibtelecom became involved, the court was told. 

Gibtelecom is represented by Mr De Garr Robinson together with Moshe Levy, Samuel Marrache and Nikolaus Grubeck. 

The defendants are represented by Mr Plewman with Guy Stagnetto, KC, Gareth Jaffe and Jogoda Klimowicz. 

The case in the Supreme Court continues and is due to last two weeks.