Out-Law News 2 min. read
31 Mar 2009, 9:55 am
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.
