Broadcasting

Fair competition for cross-border satellite television rights - applicant acquiring exclusive rights in open market - Independent Television Commission not entitled to refuse licence for cross-border broadcast service because of renewed interest by public broadcastersR v Independent Television Commission, ex parte TVDANMARK 1 Ltd: CA (Kennedy, Waller and Jonathan Parker LJJ): 5 October 2000

The applicant, a satellite broadcaster based in England, obtained exclusive rights, in an open market in which public broadcasters had been able to participate, to televise across the frontier in Denmark five away World Cup 2002 matches involving the Danish national team.

It applied to the Independent Television Commission (ITC) for consent to televise the matches pursuant to s.101B of the Broadcasting Act 1996.

ITC refused consent on the ground that public broadcasters with greater market audience had again shown interest in bidding.

The applicant sought judicial review.

The judge refused the application.

The applicant appealed.

Christopher Carr QC (who did not appear below) and Mark Clough QC, solicitor advocate (instructed by Ashurst Morris Crisp) for the applicant.

Elizabeth Appleby QC and Jonathan Moffett (instructed by Simmons & Simmons) for ITC.

Held, allowing the appeal, that ITC's decision, on the ground that public broadcasters had again showed interest in acquiring the right after the applicant had properly acquired exclusive rights at a fair price in the free market in which the public broadcasters had originally been able to participate, was unjustified since it contravened art.3(a)3 of the Frontier Directive (89/552/EEC) as amended by Directive (97/36/EC), which was implemented by s.101B of the 1996 Act; that a greater proportion of the Danish population were being deprived of an opportunity to follow the event, not by the applicant's acquisition of exclusive rights, but by the refusal of the public broadcasters to pay a fair price; and that, accordingly, ITC's decision would be quashed and the matter remitted with a direction to reconsider the application