“A monopoly over broadcasting, whether by Government, or by anybody else, is inconsistent with the free speech right of the citizens. State control really means governmental control, which in turn means, control of the political party or parties in power for the time being. Such control is bound to colour the views, information and opinions conveyed by the media. The free speech right of the citizens is better served in keeping the broadcasting media under the control of public.”
– Jeevan Reddy J in Ministry of Information and Broadcasting v. Cricket Association of Bengal (1995)
INTRODUCTION
The Indian sports broadcasting industry highlights the asymmetrical relationship between market realities and the law. Technological developments have raced ahead with the D2H cable television invasion but the law has not kept up. In a cricket crazy nation like India, access to telecast of cricket matches is an unwritten fundamental right of the citizens. More than a decade has passed since the enactment of the Sports Broadcasting Signal (Mandatory Sharing with Prasar Bharti) Act, 2007 (“Sports Act”), conceptualised and enacted at a time when no one had anticipated the IPL revolution and the ensuing explosion in the valuation of broadcasting rights in India. It is noteworthy however, that these concerns were foreseen more than 2 decades ago, for the very first time, in the landmark case of Ministry of Information and Broadcasting v. Cricket Association of Bengal (“Hero Cup judgment”). The Supreme Court had lamented the vacuum in this area of the law and had directed the immediate establishment of an autonomous broadcasting authority to control and regulate the broadcasting media. Despite the Supreme Court’s directions, regulating broadcasting and the sale of rights therein is still an issue of legal contention, as is clear from the on-going tussles between the state-backed Prasar Bharti (the body that runs Doordarshan) and private players who competitively bid for broadcasting rights. The judiciary has had to step in on multiple occasions and adjudicate on contentious issues due to the absence of a clear mandate in law and the legislature’s inability to move in step with market realities. The latest in a series of noteworthy judicial interventions is the 2017 Supreme Court judgment in Union of India v BCCI, Star Sports and Others regarding the sharing of broadcasting signals. The contentions held by the Court in this case borrow heavily from the Hero Cup judgment, a seminal moment in Indian sports broadcasting. The Indian judiciary has, on multiple occasions reiterated that the right to impart and to receive information through broadcasting media is a fundamental right, which comes under the ambit of the freedom of speech and expression under Article 19(1)(a) of the Constitution. Incidentally, this contention was first debated in the Hero Cup judgment.
BACKGROUND
Since independence, broadcasting has remained under the exclusive oversight of the State. After decades of State dominance, the Indian economy was opened up to foreign players after the liberalization of the economy. Suddenly, Doordarshan was under threat from the fast moving Hong Kong-based Star TV which had identified the gulf in the technology and broadcast quality of Doordarshan compared to the demand and appreciation for higher quality broadcasting. By early 1992, close to half a million homes were receiving Star TV telecasts. By 1995, about 13 million homes were receiving cable and satellite channels. By late 1995, there were as many as 12 satellite-based channels available in India. All of the services were uplinked from locations outside India because the Government had monopolised the right to uplink from within the country for its own broadcasting organisations. The government at this point in time, took no action to contain the transmissions from outside channels or regulate their content. It was not till the enactment of the Cable Television Network Regulation Act, 1995 that cable services came to be regulated. But this legislation was confined to the regulation of cable operators and did not extend to the regulation of telecasting rights. Despite the newness of the law and the clear indicators for potential conflicts, the vacuum in the law with regard to telecast and transfer of telecast rights was not filled.
In February 1995, the Supreme Court delivered the Hero Cup judgment which widened the scope of Article 19(1)(a) of the Constitution of India by holding that the telecast of matches by one’s chosen broadcaster was part of the fundamental right to freedom of speech and expression. The Supreme Court further acknowledged that the Indian Telegraph Act, 1885 (“Telegraph Act”) was totally inadequate to govern an important medium such as broadcasting as it was enacted for an altogether different purpose in 1885. The statute needed to keep pace with the technological advances in the field and it had not done so successfully.
FACTS
The case dealt with the rights of the Cricket Association of Bengal (“CAB”) to grant telecast rights to an agency of its choice. In 1993, CAB signed a contract with the Transworld International (“TWI”), a foreign broadcaster, granting it the right to telecast the inaugural five-nation Hero Cup Cricket Tournament. The contract was signed subsequent to TWI putting in the highest bid in a global tender for the broadcasting of the tournament that also included Doordarshan. Before entering into this deal, CAB repeatedly offered Doordarshan an opportunity to purchase the national telecast rights for telecasting the matches by either becoming the host broadcaster or by acquiring these rights from a third-party host broadcaster abroad. Doordarshan was put on the defensive by CAB’s offer because of the limited rights offered on auction and further limitations imposed therein. In light of such an unprecedented invitation to offer, Doordarshan submitted a low-ball bid of INR 1 crore, a veritable fraction of what CAB considered an appropriate price for telecast rights. CAB valued the telecast rights to be a then exorbitant sum of USD 800,000. After learning of Doordarshan’s low-ball offer, CAB put the offer up for grabs for private players, wherein TWI emerged as the frontrunner for buying the worldwide rights as the single bidder. Doordarshan, after learning of the deal with TWI, announced its unwillingness to negotiate with TWI regarding the purchase of signals from another host broadcaster. It declared its intention of not paying any fee to telecast the matches. Furthermore, they demanded from CAB, a production charge/technical fee of INR 5 lakh per match. CAB refused to play ball with Doordarshan and awarded the bundle national and worldwide rights to TWI.
“DD reiterated its decision to not purchase signals from TWI because it was a foreign organisation. This was puzzling because DD had purchased telecast rights from TWI earlier during the India-England series in January 1993. On 29 October, we once again requested DD to reconsider its position, also conceding, purely in deference to DD’s apparent sensitivity to taking signals from TWI that CAB was happy to allow DD to produce its own video for the matches, which DD would directly purchase from CAB, at a mutually agreed price. The very next day DD sent a message stating it would not pay any access fee to CAB to telecast the matches. Rather, for DD to telecast the matches live, CAB would have to pay technical charges/production fee at Rs 500,000 per match. CAB would also have to give DD exclusive rights for the signals generated and the parties interested in taking signals would have to negotiate directly with DD.”
– Jagmohan Dalmiya (then president of CAB)
Doordarshan, enraged, tried to arm-twist TWI into not telecasting the event. It firstly accused TWI of violating Indian foreign exchange rules and regulations. Thereafter, it orchestrated the confiscation of TWI’s camera equipment by the Customs authority on the grounds that no licence had been obtained for such telecast under the Telegraph Act and the Wireless Telegraphy Act, 1933. Doordarshan acted in this manner despite the fact that VSNL had granted TWI permission for the purpose of uplinking and it had received due consideration for granting such permission. Around the same time, Akashvani (All India Radio) announced its decision to not cover the matches on the grounds that the national broadcaster Doordarshan had been denied the right of nominating the host broadcaster’s signal, a right it had enjoyed hitherto. CAB was publicly shamed for having solely a profit-making motive and acting against public interest by accepting the sizable offer made by TWI over the relatively paltry offer made by Doordarshan.
Consequently, CAB filed a writ petition in the Calcutta High Court (“Cal HC”) praying that the respondents (the Government of India) should be directed to facilitate the telecast and broadcast of matches by TWI and not create any trouble by instituting needless bureaucratic red tape. After hearing the petition, the Cal HC sided with CAB and passed an interim order as per their request, instructing the Government not to intervene in existing arrangements between CAB and TWI. The Cal HC issued another directive, instructing the Customs authorities to release TWI equipment. The order wasn’t complied with. TWI, unperturbed by the Customs’ continued stalling over the seized equipment, and having paid a hefty sum for the telecast rights, recorded the West Indies-South Africa match with locally hired equipment. Due to the nonchalance and uncooperative nature of the Customs authorities, CAB was compelled to file a writ petition in the Supreme Court on 15 November, 1993 against the government (and the respective authorities) for refusing to abide by the orders of the Cal HC.
JUDGMENT
The Supreme Court promptly upheld the contentions of the Cal HC, that the telecast of matches by its chosen broadcaster was in effect the right to receive and impart information via the medium of their choice and therefore a part of the fundamental right of freedom of speech and expression. The game of cricket provides entertainment to public at large. The entertainment was organised and provided by CAB. Providing entertainment was a form of expression and, therefore, covered by Article 19(1)(a) of the Constitution of India subject to the restrictions of Article 19(2). It was held that the organiser of the game had the right to telecast and broadcast the game. Neither Doordarshan nor AIR was permitted to intervene in private transactions between the event organizer and its chosen broadcaster. The hitherto monopoly enjoyed by Doordarshan and AIR was inconsistent with Article 19(1)(a) as well as Section 4 of the Telegraph Act. Furthermore, it was held that if Section 4(1) of the Telegraph Act was being construed as conferring or affirming such monopoly, then it was void and unconstitutional.
The Supreme Court reinstated CAB’s freedom to choose any agency of their choice, appropriate for telecasting and broadcasting the game irrespective of the nationality of the entity. The Supreme Court was of the opinion that the assumption that Doordarshan enjoyed monopoly over telecasting in India was a product of the faulty interpretation of Section 4(1) of the Telegraph Act. The prevalent industry practise then was to not allow foreign agency(ies)/broadcaster(s) into the Indian market without the consent of Doordarshan to telecast such events. Doordarshan had been telecasting cricket matches exclusively for decades. Only on one previous occasion was a foreign agency/broadcaster allowed to broadcast matches, and that too was facilitated by Doordarshan’s direct cooperation. In this context, CAB asserting its right to enter into an agreement with TWI, a foreign entity, was indeed an unusual development. Doordarshan pleaded that a foreign agency/broadcaster coming into India and telecasting an event without obtaining a licence under Section 4(1) of the Telegraph Act was counter-productive to the very purpose of instituting a requirement to obtain a license. Interestingly, the license to be obtained under Section 4(1) was held by the Supreme Court as bona fide and completely necessary. CAB had neither legal right nor any justification on insisting upon telecasting their events through foreign agencies without applying or obtaining a licence required by law. However, the Supreme Court also added that by selling the rights to TWI, CAB had sold their rights to a foreign agency/broadcaster thereby parting with the contentious obligation to obtain the license. The right to telecast the matches was in effect sought by TWI and not by CAB. Hence the question of violation of CAB’s right under Article 19(1)(a) was no longer the concern of the Supreme Court.
The Supreme Court held that most democratic countries had already enacted currently relevant laws governing broadcasting media, while India was being held back by this ancient legislation which did not account for present-day realities. Except Section 4(1) and the definition of the word “telegraph”, no other provision of the Telegraph Act demonstrated any relevance to modern broadcasting media. In other words, the law had not aged well and it needed to be refurbished immediately. The Court therefore directed Parliament to draft a law which would place the broadcasting media in the hands of an autonomous corporate body. This was deemed necessary to safeguard public interest, to avoid uncertainty and confusion in the interpretation of the law and prevent excessive litigation.
TAKEAWAYS FROM JUDGMENT
Notwithstanding any other contentions held by the Supreme Court in the judgment, its single biggest contribution to this underdeveloped area of law was its declaration that airwaves or frequencies were public property. Their use had to be controlled and regulated by an autonomous public authority in the interests’ of the public and to prevent the invasion of the citizens’ right to access televised sporting events. The Court stated that the monopoly of airwaves should cease to exist. Inexplicably, however, despite their condemnation of Doordarshan’s monopoly powers, the Court effectively allowed Doordarshan to retain its monopoly over broadcasting media. In lieu of protecting the undeniable right of the viewer to watch cricket, the Court directed that Doordarshan would get to enjoy not only exclusive telecasting rights in India but also the right to enjoy part of the advertising revenue. To add insult to injury, TWI was forced to pay Doordarshan INR 5 lakh per match in lieu of production charges/technical fees, as initially “requested” by Doordarshan.
While addressing the right of the telecaster on one hand, the Supreme Court gave premium to the right of the viewer to receive information and entertainment through the broadcasting media. The Court held that “…their (the viewers’) rights would very much be trampled if the cricket matches are not telecast through Doordarshan, which has the monopoly of the national telecasting network. … it cannot be denied that a vast section of the people in this country is interested in viewing the cricket matches. The game of cricket is by far the most popular in all parts of the country. This is evident from the overflowing stadia at the venues wherever the matches are played and they are played all over the country. It will not be an exaggeration to say that at least one in three persons, if not more, is interested in viewing the cricket matches. Almost all television sets are switched on to view the matches. Those who do not have a TV set of their own, crowd around TV sets of others when the matches are on.”
CONCLUSION
It is not in India alone, that telecast rights are put up for bidding for private players. Worldwide, the grant of exclusive telecast rights by organisers of sports events to private television operators is a common occurrence. Exclusivity brings economic advantages to broadcasting companies and to organisers of the sports events. However, exclusive arrangements may be disadvantageous to viewers when rights are acquired by commercial television distributors, inaccessible to the majority of viewers (or so claimed by Doordarshan, the Government’s directions for compulsory adoption of D2H by viewers notwithstanding). Interestingly, countries such as UK and Australia have passed anti-siphoning laws to combat these issues. These laws are designed to prevent the exclusive broadcasting of major sporting events by restricting D2H/cable television licensees from acquiring the exclusive right to televise certain listed events of national or cultural importance unless a national or commercial free-to-air broadcaster also has a right to televise the event. Similar anti-siphoning provisions were later introduced in India through the Sports Act. The sole purpose of this statute has been held to ensure wider accessibility to telecasts of sporting events. However, despite the nobility of the intention behind enacting this law, it has in turn, allowed Doordarshan to continue to bask in its monopoly and blatantly misuse it on occasion. Notwithstanding that a contract may have been awarded to any private party in respect of exclusive telecast rights, Doordarshan has continuously hijacked broadcast on the pretext of its wider accessibility to the public through infrastructure set up over decades of monopoly. Ironically, the very monopoly which the Hero Cup judgment sought to end has been reinforced in the guise of the public interest in watching cricket.