The Freesat platform is a satellite service broadcasting free to
air stations. Television shopping channel company JML asked for
slots on the platform for two of its channels and entered into a
contract with Freesat for two slots on its EPG.
Platform operators must abide by a code of practice on the
operation of EPGs produced by media regulator Ofcom and must
publish their own policies on how they allocate EPG slots.
A low-numbered slot within a genre is highly prized by
broadcasters who are aware that viewers often do not scroll far
beyond the channels that are initially displayed.
JML was initially allocated slots that put it on the second page
of listings in its genre. It took Freesat to court to argue that
the decision was in breach of the Ofcom code and Freesat's own
policy because it was based on some irrational judgements and
involved criteria not listed in Freesat's policy.
The High Court last year rejected the arguments and said that
Freesat was entitled to make the decision as it had. The Court of
Appeal has just ruled in agreement with the High Court.
JML objected to the fact that Freesat based its decision on
where to place its channels on the audience ratings for the various
channels vying for positions in the EPG and on where channels were
already listed on the Freeview TV platform.
Freesat's policy had said that it would allocate channels taking
several things into account, including "viewer convenience and
expectations". The Ofcom code said that broadcast platforms had to
"publish and comply with an objectively justifiable method of
allocating listings".
JML said that its use of TV ratings figures and the Freeview
positioning violated both of these requirements because those
considerations were not listed in Freesat's policy.
"In my view the first question for decision so far as the Code
is concerned is whether a criterion framed in terms of 'viewer
convenience and expectations' is expressed at too high a level of
generality to satisfy its requirements," said Lord Justice
Moore-Bick in his ruling. "I do not think it is, because the whole
tenor of the [Ofcom] Code is such as to indicate that broad
criteria will suffice, provided they comply with the requirement
for an objectively justifiable method of allocating listings."
The judge said that this part of Freesat's policy was in line
with the Ofcom code. "The criteria, taken individually or together,
represent a rational and objective set of factors by reference to
which allocations are to be made. The weight to be given to each
factor is left to Freesat, which must make its own judgment," he
said.
He rejected JML's argument that if Freesat was going to take
ratings and Freeview positionings into account it should state that
specifically in its policy.
"If the Code required a detailed description to be published of
the method by which listings would be allocated or the factors that
would be taken into account, it could easily have made that clear.
Instead it simply calls for platforms to publish and comply with an
objectively justifiable method of allocating listings," said the
ruling.
JML also argued that when Freesat said it would consider a list
of factors, including when it agreed a contract with various
applicants, it was obliged to give at least some weight to each of
them. Freesat had said that it had not considered the timing issue
at all.
Partly this was because of negotiations with channel producers
which delayed the signing of some contracts, and partly because
Freesat had difficulty in establishing the dates of some of the
agreements.
JML said that this was an irrational basis for a decision and
that because the decision was based on one irrational factor it
was, therefore, an irrational decision.
The Court of Appeal accepted that this was irrational but said
that it did not have enough influence on the company's decision
about which slots to allocate to JML to undermine that decision
making process.
"I do not think that the [High Court trial] judge's findings go
so far as to establish that [Freesat's] decision was significantly
influenced by the perceived difficulty in identifying the dates of
the EPG contracts," said Mr Justice Moore-Bick. "JML is therefore
unable to establish a breach of contract because it has failed to
show that the decision to place no weight on [the time issue] was
affected by any irrational or arbitrary factor."
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