Satellite operator Freesat has a code which governs which
channels are given the best slots, an issue also partially
regulated by Ofcom. Slots high up in the electronic programme guide
(EPG) are highly desired by broadcasters because being on the first
screen of seven listed channels can bring viewers to their
channels.
JML was given slots 10 and 11 for its programmes, meaning the
channels were not on the first page for the shopping category in
Freesat's EPG. It sued, claiming that Freesat did not use the
criteria outlined in its Listing Policy; that it used criteria
which had not been published; and that its allocation of slots was
irrational.
Freesat is a non-for-profit joint venture between the BBC and
ITV which offers satellite digital television for free, making its
revenue from charging broadcasters to be on the platform.
Broadcasters pay a flat fee of £30,000 per year to be included on
the service and in its EPG.
Freesat has a Listings Policy governing its allocation of slots.
It is also governed by the Ofcom Code of practice on electronic
programme guides, which it publishes under the Communications
Act.
The Code says: "EPG licensees are required to publish and comply
with an objectively justifiable method of allocating listings. This
does not preclude different methods – for example, objectively
justifiable methods could include 'first-come, first-served',
alphabetical listings, and those based on audience shares".
JML said that Freesat's methods for allocating channels was "at
best haphazard, slipshod and highly subjective". It said that there
was a breach of contract because Freesat had not complied with its
own Listings Policy.
Mr Justice Blackburne in the High Court rejected JML's claims
that Freesat should be held to strict, published criteria when
deciding on slot allocations.
"The Code does not state that the Listing Policy must set out
all of the matters that Freesat may take into account in applying
the policy. It does not state what evidence (for example,
professionally assembled viewer data) Freesat may or may not
consider in deciding whether any given criterion is satisfied," he
said.
"It does not state that there must be no element of subjectivity
in the application of the criteria. All that paragraph 15(b) of the
Code requires is that Freesat must publish and comply with an
objectively justifiable method of allocating listings," he said.
"In my judgment, this is exactly what Freesat's Listing Policy
achieves."
JML objected to Freesat's use of audience ratings (BARB) figures
which did not measure its channels, but the Court said that the use
of such figures was rational.
"In my judgment, Freesat's recourse to BARB ratings for the
confirmatory purpose mentioned in Ms Scott's evidence falls far
short of irrationality which is the question I have to decide,"
said the judge.
The Court found that none of the allegations of irrationality
made by JML stood. "JML fails to establish that Freesat was in
breach of the EPG Agreement and its claim must therefore be
dismissed," said Mr Justice Blackburne.
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