STAR SPORTS INDIA PVT LTD. Vs PRASAR BHARTI .
Bench: A.K. SIKRI,PRAFULLA C. PANT
Case number: C.A. No.-005252-005252 / 2016
Diary number: 1089 / 2014
Advocates: NIKHIL NAYYAR Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5252 OF 2016 (ARISING OUT OF S.L.P. (CIVIL) NO. 8988 OF 2014)
STAR SPORTS INDIA PRIVATE LIMITED .....APPELLANT(S)
VERSUS
PRASAR BHARATI & ORS. .....RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.
Leave granted.
2) The instant appeal is filed against the impugned judgment dated
October 3, 2013 passed by the Division Bench of the High Court
of Delhi in W.P.(C) No. 3611 of 2013 which was filed by the
appellant herein. The appeal raises the issue regarding the
scope of obligations of a Television Broadcasting Organisation
under the Sports Broadcasting Signals (Mandatory Sharing with
Prasar Bharati) Act, 2007 (hereinafter referred to as “Sports Act”).
We may mention at the outset that under Section 3 of the Sports
Act, a Television Broadcasting Organisation is prohibited from
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carrying the live television broadcast of a sporting event of
national importance on cable or Direct-to-Home (DTH) networks
in India, unless it simultaneously shares the live broadcasting
signals, without its advertisements, with the Prasar Bharati
(respondent No.1) to enable it to retransmit the same on its
terrestrial and DTH network.
3) In view of the above statutory obligation, the appellant herein
sharing the live broadcast signals with respodnent No.1 Prasar
Bharati and there is no dispute about the same. The appellant, as
a television broadcaster, is allowed to insert advertisements on its
avenue and recoup its advertisements during a break in live play
at various points during broadcast, such as, during breaks
between overs in a cricket match, at the fall of a wicket, during
drink breaks etc. These advertisements are not included while
sharing the live broadcasting signals with Prasar Bharati. No
dispute about this as well.
4) The problem has, however, arisen in respect of the contents
shared with Prasar Bharati which, at times, include some kind of
advertisements. According to the appellant, the broadcast signal
of a sporting event provided by an event organiser, known as the
“world feed” (as the same feed is provided to all broadcasters the
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world over), includes the broadcast of the live play of the event as
it happens on the field as also certain “features” which enhance a
view's experience, such a Hawk-eye, ball delivery speed
reference, umpire naming graphics, player statistics, score cards,
match summary graphics, replay graphics etc. These features
are inserted at the site by or at the instance of the event
organiser. Such features invariably contain logos of the event
sponsors known as “On-Screen Credits” in industry parlance.
These “On-Screen Credits” are, however, included while sharing
the live broadcasting signals with Prasar Bharati. Prasar Bharati
has taken exception to the aforesaid inclusion treating the same
as “advertisements” and, thus, turning it as violative of Section
3(1) of the Sports Act. The appellant, on the other hand, has
taken the position that in terms of Section 3(1) of the Sports Act,
the obligation of a television Broadcaster, i.e., the appellant, is
limited to sharing of the world feed which it receives from the
event organizer/owner on as as-is-where-is basis without
advertisements of the television broadcaster, and that the
appellant is not obliged to remove any On-Screen Credits inserted
by the event organizer. The appellant contested the stand of
Prasar Bharati (respondent No. 1) that it is the duty of the
appellant to ensure that the sponsor logos/On-Screen Credits
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present ion the world feed, which ios created by or at the instance
of the organizer of the event, have to also be removed by the
appellant.
5) By the impugned judgment, the High Court has found favour with
the contention raised by Prasar Bharati and this view of the High
Court is the subject matter of challenge in the instant appeal. The
lis has travelled to this Court in following factual background.
6) The appellant (formerly ESPN Software India Private Limited) is
the sole and exclusive distributor of some sports channels in
India. These include ESPN, Star Sports, Star Sports 2 and Star
Cricket. These channels telecast various sporting events such as
ICC Cricket, BCCI Cricket, Formula 1, Barclays Premier League
Football, ICC Cricket World Cup and Wimbledon etc. for
telecasting these events, the appellant enters into a contract with
the sporting events organizers. These broadcasting rights have
also been acquired from International Cricket Council (ICC) to
broadcast cricket events organised by ICC for the Indian territory.
7) Keeping in mind the mandate of Section 3 of the Sports Act, the
appellant informed respondent no. 1, i.e., Prasar Bharati on
March 07, 2013 that it would be sharing the live signals with
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Prasar Bharati of cricket matches organised by the ICC. It was
followed by another letter dated March 14, 2013 wherein the
appellant stated that such live signals, which the appellant would
be sharing with Prasar Bharati, shall contain certain added
features comprising of commercial elements. Prasar Bharati
replied vide letter dated April 06, 2013 informing the appellant that
under the law, appellant's obligations is to share the signals
without any commercials. The appellant responded by stating
that under the contract with the sporting event organizers, the
appellant was receiving the feed containing certain
advertisements by the organizer of the sporting events and,
therefore, the signals were transmitted as it is, including those
advertisements which were not the advertisements booked by the
appellant. It was also stated that as per Section 3 of the Sports
Act, appellant was to share the live broadcast signal as it is, i.e.,
the manner in which it was received by it from the copyright owner
of the broadcast (the sporting event organizer) and, therefore, it
did not amount to any violation of Section 3 of the Sports Act. It
was also contended that the appellant had no control over the live
signals so received. Since both the parties remain adamant
about their respective position, the appellant approached the High
Court of Delhi by way of writ petition filed under Article 226 of the
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Constitution, seeking following declarations and reliefs:
“(a) a declaration that under the provisions of the Act and the Rules framed thereunder, the appellant shall offer to simultaneously share with the respondent no. 1 the same live broadcasting signals of sporting events of national importance as provided by the appellant to other broadcast network service providers in India, without insertion of the appellant's commercial advertisements;
(b) a declaration that the live broadcasting signals of sporting events of national importance shared by the appellant with the respondent no. 1 under Section 3 of the Act shall be the best feed as received from site with all features inclusive of any commercials of the event owner and without insertion of any commercial advertisements by the appellant.
(c) a writ of certiorari to quash and set-aside the communication dated 06th April, 2013 issued by the respondent no. 1;
(d) hold and declare Rule 5 of the Sports Rules in violative of Section 3 of the Act and ultra-vires Article 14 of the Constitution;
(e) Hold and declare that upon the appellant offering to share t he world feed of the relevant matches of the Champions Trophy 2013 without its commercial advertisement with the respondent, it has discharged its obligation under Section 3 of the Act; and
(f) Such other writ, order or direction as the court may deem fit in the interest of justice.”
8) Insofar as vires of Rule 5 of the Rules, 2007 is concerned, the
High Court repelled the contention of the said Rule being ultra
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vires the provisions of Section 3 of the Sports Act with the reason
that this Rule simply obliges the content right owner or the holder
or a broadcast service provider to comply with the statutory
provisions of the Act, which in any case was the obligation of the
broadcaster even if Rule 5 was not to exist. Thereafter, the High
Court came to the fulcrum of the dispute and noted that insofar as
plain language of Section 3 of the Sports Act is concerned, it
categorically casts an obligation on the broadcaster to share the
life broadcasting signals without its advertisements, with Prasar
Bharati. We would produce the text of Section 3 at this juncture:
“3. Mandatory sharing of certain sports broadcasting signals – (1) No content rights owner or holder and no television or radio broadcasting service provider shall carry a live television broadcast on any cable or Direct-top-Home network or radio commentary broadcast in India of sporting events of national importance, unless it simultaneously shares the live broadcasting signal, without its advertisements, with the Prasar Bharati to enable them to re-transmit the same on its terrestrial networks and Direct-to-Home networks in such manner and on such terms and conditions as may be specified.
(2) The terms and conditions under sub-section (1) shall also provide that the advertisement revenue sharing between the content rights owner or holder and the Prasar Bharati shall be in the ratio of not less than 75:25 in case of television coverage and 50:50 in case of radio coverage.
(3) The Central Government may specify a percentage of the revenue received by the Prasar Bharati under sub-section (2), which shall be utilised by the Prasar Bharati for broadcasting other
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sporting events.”
The High Court noted that the arguments of the appellant was
that the contents were to be shared 'without its advertisements'
which meant no advertisements of the Broadcaster and,
therefore, this expression did not include advertisements inserted
in the feed by the event organizer. This argument is, however,
rejected in the following manner:
“The expression 'unless it simultaneously shares the live broadcasting signal, without its advertisements, with the Prasar Bharati....' with reference to the two words 'its advertisements' in the phrase, admits of the phrase having only one meaning and not admitting two. The only one meaning that the live broadcast signals have to be without any advertisements for the reason the rules of English grammar guide us that the subject of (the single sentence) sub-section (1) of Section 3, is 'the content right owner or holder or radio broadcasting service provider' and the three words 'without its advertisements' are a sub-clause constituting a condition and since the three words immediately follow the words 'live broadcasting signal' they have to be, plainly read, as a condition concerning the live broadcast service provider; meaning thereby, whosoever airs a live television broadcast of sporting events of national importance must share the same without any advertisements inserted with Prasar Bharati.”
9) The submission of the appellants that it had no control over the
live signals which included the advertisements of the event
organizer was also dismissed with following observations:
“We need not discuss the effect of the petitioner
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having no control over the live signals and the effect of the legislative provision i.e. Section 3(1), casting an obligation upon the petitioner which is impossible of being performed by the petitioner or obliges the petitioner to violate its contractual obligations with the copyright owner of the broadcast, for the reason the same would relate to the vires of Section 3(1) of the Act; and we highlight once again that the vires of Section 3(1) of the Act has not been challenged.”
The aforesaid is the central theme of the impugned judgment of
the High Court. Though, in addition, the High Court has touched
upon certain other peripheral aspects as well, but that need not
be mentioned at this stage.
10) The arguments which were advanced by Dr. A.M. Singhvi, learned
senior counsel appearing for the appellant are stated in
summarised form hereinbelow:
(I) In the first instance, it was argued that 'On-Screen
Credits' put in by the event organizers themselves cannot be
treated as advertisements at all. As these features were the
integral part of the feeds that the appellant was receiving from the
organizers for the purpose of broadcasting. These credits were
logos of the event sponsors which were appearing on the screen
as per the agreement between the event sponsors and the event
organizers. Following examples are given by the appellants:
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In the aforesaid photographs LG, Fly Emirates, Reliance and
Pepsi are the logos of the event sponsors which are embedded in the
feeds that are received.
(II) Taking the aforesaid argument further, it was submitted that in any
case the appellant gets those logos embedded as it is and has not
control over the same. It was argued that while sharing the signals with
Prasar Bharati, there was no mechanism or methodology to remove
these logos.
(III) It was submitted that in the aforesaid context, the said logos
could not be treated as commercial advertisements and the purpose of
Section 3 of the Sports Act was not to share only those kinds of
advertisements which were commercial in nature, i.e., book by the
Broadcaster/appellant from which the appellant had received the
revenue and generated income. In other words, it was argued that
having regard to purposive interpretation which was to be given to the
expression 'without its advertisements' the aforesaid logos would not
come within the mischief of the aforesaid expression. It is in the same
hue, the argument of Dr. Singhvi was that not only those
advertisements which were inserted at the instance of the broadcasting
organisation carrying live signal in India, were required to be removed
as per Section 3 of the Sports Act, it was emphatically emphasised that
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broadcasting organizations, like appellants, are only authorised by
respective event owners, as also under law, to insert advertisements
during normal and routine breaks in the live play of an event/match,
such as end of overs, fall of wicket(s), lunch break, drinks break, injury,
rain etc.
11) It was also argued that there is a distinction between the
event/match as played and the event/match as broadcast. The
broadcast of an event/match contains not only the live
event/match as played on the field but also certain enhancement
in the form of features. These features aid the viewer in better
understanding and appreciating the game and as such enhance
the viewership experience. These features/On-Screen Credits
are as much a part of the broadcast of an event as the play of the
event itself. As per the appellant, the obligation under Section 3 is
to simultaneously share the live 'broadcasting signals' which are
received by an entity carrying the television broadcast in India and
not just the live 'event' itself. However, as a result of the impugned
judgment, the appellant will be compelled to share the live 'event'
and not the live 'broadcast signal' of the event. The appellant
submits that it is not practically feasible for a broadcaster to
remove the on-screen credits inserted by the event organizer in
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the live signals and simultaneously share the same signals (as
provided to other service providers such as cable and private
DTH networks) with Prasar Bharati. In the past when the
appellant was compelled to provide a clean feed, the appellant
was constrained to procure a separate feed at a considerable cost
as it was not practically feasible for the appellant to remove the
insertions of the event organizer while simultaneously sharing the
same feed with Prasar Bharati. The appellant submits that the
mandate of the Act is simultaneous sharing and not procuring and
providing a separate live feed to Prasar Bharati.
12) Dr. Singhvi laid emphasis on the words 'simultaneously shares
the live broadcasting signals' and submitted that since the
obligation was to share it 'simultaneously' i.e., 'as it is' the sharing
of the signals with logos coming from the organizers were not
supposed to be removed. Another submission of Dr. Singhvi was
that Section 3 was expropriate in nature, i.e. contra proferantem.
In order to buttress this argument, the learned senior counsel
argued that the purport of sharing the signals without
advertisement was that if the advertisements are also included
along with the other contents, the Broadcaster becomes the
beneficiary of having much larger audience and viewers and,
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therefore, in such cases Prasar Bharati wanted its share in such
advertisement. In the instant case when the appellant had not
earned any income from these advertisements as these were not
booked by the appellant, there was no question of sharing alleged
income. Reference was made to the judgment of this Court in
Executive Engineer, Southern Electricity Supply Company of
Orissa Limited (Southco) and Another Vs. Sri Seetaram Rice
Mill1 wherein rule of purposive interpretation was explained in the
following manner:
“46. “Purposive construction” is certainly a cardinal principle of interpretation. Equally true is that no rule of interpretation should either be overstated or overextended. Without being overextended or overstated, this rule of interpretation can be applied to the present case. It points to the conclusion that an interpretation which would attain the object and purpose of the Act has to be given precedence over any other interpretation which may not further the cause of the statute. The development of law is particularly liberated both from literal and blinkered interpretation, though to a limited extent.
47. The precepts of interpretation of contractual documents have also undergone a wide-ranged variation in the recent times. The result has been subject to one important exception to assimilate the way in which such documents are interpreted by Judges on the common sense principle by which any serious utterance would be interpreted by ordinary life. In other words, the common sense view relating to the implication and impact of provisions is the relevant consideration for interpreting a term of document so as to achieve temporal proximity of the end result.
1 (2012) 2 SCC 108
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48. Another similar rule is the rule of practical interpretation. This test can be effectually applied to the provisions of a statute of the present kind. It must be understood that an interpretation which upon application of the provisions at the ground reality, would frustrate the very law should not be accepted against the common sense view which will further such application.
49. Once the court decides that it has to take a purposive construction as opposed to textual construction, then the legislative purpose sought to be achieved by such an interpretation has to be kept in mind. We have already indicated that keeping in view the legislative scheme and the provisions of the 2003 Act, it will be appropriate to adopt the approach of purposive construction on the facts of this case. We have also indicated above that the provisions of Section 126 of the 2003 Act are intended to cover the cases over and above the cases which would be specifically covered under the provisions of Section 135 of the 2003 Act.”
13) In support of this submission, reliance was placed on the
judgment of this case in Davis Vs. Sebastian2, wherein it was
held as under:
“8. Now, what is the meaning of the expression “personal use” in sub-section (8) It is a well-settled principle of interpretation that words in a statute shall be given their natural, ordinary meaning; nothing should be added to them nor should any word be treated as otiose. Two comprehensive expressions “additional accommodation” and “personal use” are employed in sub-section (8). The expression “additional accommodation” takes in both residential as well as non-residential buildings. “Personal use” is also an expression of wide amplitude. There is nothing in the sub-section which restricts the import of that expression. The said requirement of sub-section (8) will be complied
2 (1999) 6 SCC 604
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with on the satisfaction of the Controller about bona fide need of the additional accommodation for personal use of the landlord. To what use the additional accommodation should be put, is the choice of the landlord. In the case of a non-residential building whether a new business should be set up in the additional accommodation or whether it should be used for expansion of the existing business, is left entirely to the option of the landlord. This, being the intendment of the legislature, the court cannot impose any restriction with regard to the use of the additional accommodation from which the eviction of the tenant is sought.”
14) It was next contended that the word 'its' occurring in the
expression 'without its advertisements' was referable to the
Broadcaster and, therefore, on the application of the rule of literal
construction, those logos which were embedded by the event
organizers could not be treated as the advertisements of the
appellant. Dr. Singhvi also endeavored to take solace from V.B.
Raju Vs. Union of India and Others3 in support of his contention
that otherwise the word 'its' would be rendered otiose, if the
aforesaid interpretation as suggested by the appellant is not made
applicable.
15) The aforesaid submissions of the learned senior counsel for the
appellant were countered by Mr. Mukul Rohatgi, learned Attorney
General for India. At the outset, he drew our attention to the
3 1980 (Supp) SCC 513
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prayers made in the writ petition and, in particular, prayers (a) and
(b) and submitted that these involve disputed question of facts,
viz., whether the appellant, by sharing the signals/world feed was
simultaneously passing advertisements therein as well? And
whether under the given circumstances, such advertisements
were of commercial nature and were offensive of Section 3 of the
Act and the Rules framed thereunder? He submitted that the
appellant was trivializing the issue by giving it the nomenclature of
'logo' but the fact remains that those logos were of the
advertisers/sponsors who had given it purely for commercial
purposes. The learned Attorney General referred to the counter
affidavit which was filed in the High Court wherein a specific stand
was taken by Prasar Bharati that it is the appellant who is
inserting commercials in the feed and not ICC, as is clear from the
following averments made in the counter affidavit:
“Without prejudice to what has been stated above, it is submitted that ion fact it is the appellant who is inserting commercials in the feed and not ICC. The answering respondent understands that it is the appellant who is producing the feed for and on behalf of ICC from the ground. The feed as is generated from the ground is free of all commercials. It is thereafter that the commercials are inserted. It is another matter that the insertion of commercials takes hardly a second but the assertion of the appellant that it has not control over the insertion is clearly incorrect.”
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He then referred to para 26 of the rejoinder affidavit wherein the
aforesaid assertion of the respondent was denied by the
appellant. He, thus, argued that these are the disputed questions
of facts which could not be gone in a writ petition, and as a
consequence in the present appeal, his submission was that if the
appellant wanted to raise pure legal question it had to be decided
on the premise that the appellant had inserted those
advertisements and insofar as Prasar Bharati is concerned, it had
received the feeds with the said advertisements and that was the
only basis on which the issue at hand could be decided by
applying the legal provisions.
16) Mr. Rohtagi then referred to the preamble to the Sports Act, 2007
highlighting the object with which the said Act was enacted and
submitted that it is that spirit and objective which has to be kept in
mind while construing the provisions of Section 3 of the Sports
Act.
17) Insofar as interpretation that is to be given to the word 'its'
occurring in the expression 'without its advertisements', he
submitted that Section 3 mentions three categories, namely, (a)
content right owner; (b) holder; and (c) service provider. According
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to him, the word 'its' was relatable to any of the aforesaid three
categories and, therefore, even if it is presumed that the
logos/advertisements in the world feed are inserted by the event
organizers, that also falls within the mischief of the aforesaid
provision. Basic idea, according to him, was that the feed
generated has to be free of ads.
18) Mr. Rohtagi also referred to the provisions of sub-section (2)
of Section 3 of the Act to highlight the purpose of sharing the
revenue which was in the ratio of 75:25, i.e., 75% for the
Broadcaster and 25% revenue was to be given to Prasar Bharati.
His submission that the statutory provision was enacted to
compensate Prasar Bharati for showing the advertisements which
were booked by the Broadcaster or even event sponsors who had
earned money therefrom.
19) Mr. Rohtagi also took aid of Rule 2(b) of the Rules for interpreting
Section 3 appropriately and submitted that the words 'content
rights owner or holder' clearly meant all the three aforesaid
categories. In view of Rule 5 of the Rules, he argued that it was
the responsibility of the appellant to take care of ICC even if it is
presumed that ICC as event organizer had given world feed in
that manner.
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20) Proceeding therefrom, the next argument of the learned Attorney
General was that such a provision cannot be treated as
expropriately, as the revenue was shared between the parties.
21) Concluding his submissions, Mr. Rohtagi referred to the judgment
of this Court in Secretary, Ministry of Information &
Broadcasting, Govt. of India and Others Vs. Cricket
Association of Bengal and Other4 wherein it was held that
airwaves are public property. He submitted that paragraph 78
which was relied upon by the appellant had to be read in
conjunction with paragraph 79. Both these paras read as under:
“78. There is no doubt that since the airwaves/frequencies are a public property and are also limited, they have to be used in the best interest of the society and this can be done either by a central authority by establishing its own broadcasting network or regulating the grant of licences to other agencies, including the private agencies. What is further, the electronic media is the most powerful media both because of its audio-visual impact and its widest reach covering the section of the society where the print media does not reach. The right to use the airwaves and the content of the programmes, therefore, needs regulation for balancing it and as well as to prevent monopoly of information and views relayed, which is a potential danger flowing from the concentration of the right to broadcast/telecast in the hands either of a central agency or of few private affluent broadcasters. That is why the need to have a central agency representative of all sections of the
4 (1995) 2 SCC 161
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society free from control both of the Government and the dominant influential sections of the society. This is not disputed. But to contend that on that account the restrictions to be imposed on the right under Article 19(1)(a) should be in addition to those permissible under Article 19(2) and dictated by the use of public resources in the best interests of the society at large, is to misconceive both the content of the freedom of speech and expression and the problems posed by the element of public property in, and the alleged scarcity of, the frequencies as well as by the wider reach of the media. If the right to freedom of speech and expression includes the right to disseminate information to as wide a section of the population as is possible, the access which enables the right to be so exercised is also an integral part of the said right. The wider range of circulation of information or its greater impact cannot restrict the content of the right nor can it justify its denial. The virtues of the electronic media cannot become its enemies. It may warrant a greater regulation over licensing and control and vigilance on the content of the programme telecast. However, this control can only be exercised within the framework of Article 19(2) and the dictates of public interests. To plead for other grounds is to plead for unconstitutional measures. It is further difficult to appreciate such contention on the part of the Government in this country when they have a complete control over the frequencies and the content of the programme to be telecast. They control the sole agency of telecasting. They are also armed with the provisions of Article 19(2) and the powers of pre-censorship under the Cinematograph Act and Rules. The only limitation on the said right is, therefore, the limitation of resources and the need to use them for the benefit of all. When, however, there are surplus or unlimited resources and the public interests so demand or in any case do not prevent telecasting, the validity of the argument based on limitation of resources disappears. It is true that to own a frequency for the purposes of broadcasting is a costly affair and even when there are surplus or unlimited frequencies, only the affluent few will own them and will be in a position to use it to subserve
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their own interest by manipulating news and views. That also poses a danger to the freedom of speech and expression of the have-nots by denying them the truthful information on all sides of an issue which is so necessary to form a sound view on any subject. That is why the doctrine of fairness has been evolved in the US in the context of the private broadcasters licensed to share the limited frequencies with the central agency like the FCC to regulate the programming. But this phenomenon occurs even in the case of the print media of all the countries. Hence the body like the Press Council of India which is empowered to enforce, however imperfectly, the right to reply. The print media further enjoys as in our country, freedom from pre-censorship unlike the electronic media.
79. As stated earlier, we are not concerned in the present case with the right of the private broadcasters, but only with the limited right for telecasting particular cricket matches for particular hours of the day and for a particular period. It is not suggested that the said right is objectionable on any of the grounds mentioned in Article 19(2) or is against the proper use of the public resources. The only objection taken against the refusal to grant the said right is that of the limited resources. That objection is completely misplaced in the present case since the claim is not made on any of the frequencies owned, controlled and utilised by Doordarshan. The right claimed is for uplinking the signal generated by the BCCI/CAB to a satellite owned by another agency. The objection, therefore, is devoid of any merit and untenable in law. It also displays a deliberate obdurate approach.”
22) We have given our due, deep and pervasive consideration to the
submissions of counsel for both the parties, which they deserve. It
is clear from the contents of the arguments that the contentions
are virtually the same which were projected before the High
Court; the only difference could be that the arguing counsel have
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projected a melange of much more clarity, deftness and dexterity
in their pellucid arguments.
23) At the outset it needs to be remarked that vires of the provisions
of Section 3 of the Sports Act are not questioned. It is only
interpretation that has to be placed on the said provision, on
which the parties have joined issue. Therefore, we have to
ascertain the true meaning and scope of Section 3 of the Act and
on attaining this task, answer to the issue would become
available.
24) We may also mention that though the provisions of Rule 5 of the
Rules were challenged on the ground that these are ultra vires
Section 3 of the Act, after the High Court has negatived this
challenge, this argument was not persisted in this Court.
Therefore, we have also to proceed in the matter, keeping in view
the provisions of Rule 5 of the Rules. We may, however, hasten
to add the reason given by the High Court in repelling the
argument that Rule 5 of the Rules is ultra vires Section 3 is well
founded even otherwise. With the aforesaid preliminary remarks,
we proceed to analyse the arguments and discuss the issue
involved.
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25) Provisions of Section 3 of the Act have already been taken note
of. We would like to quote hereunder, the text of Section 2(b)
which defines 'broadcasting' along with Section 2(d) and Section
2(h) which provide definitions of 'broadcasting networks service'
'content' as well as Rules 2(b), 3 and 5.
“(b) “broadcasting” means assembling and programming any form of communication content, like signs, signals, writing, pictures, images and sounds, and either placing it in the electronic form on electro-magnetic waves on specifie frequencies and transmitting it through space or cables to make it continuously available on the carrier waves, or continuously streaming it in digital data form on the computer networks, so as to be accessible to single or multiple users through receiving devices either directly or indirectly; and all its grammatical variations and cognate expressions;
(d) “broadcasting networks service” means a service, which provides a network of infrastructure of cables or transmitting devices for carrying broadcasting content in electronic form on specified frequencies by means of guided or unguided electro-magnetic waves to multiple users, and includes the management and operation of any of the following: (i) Teleport/Hub/Earth Station, (ii) Direct-to-Home (DTH) Broadcasting Network, (iii) Multisystem Cable Television Network, (iv) Local Cable Television Network, (v) Satellite Radio Broadcasting Network, (vi) any other network service as may be prescribed by the Central Government;
(h) “content” means any sound, text, data, picture (still or moving), other audio-visual representation, signal or intelligence of any nature or any combination thereof which is capable of being created, processed, stored, retrieved or communicated electronically;
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5. The Central Government shall take all such measures, as it deems fit or expedient, by way of issuing Guidelines for mandatory sharing of broadcasting signals with Prasar Bharati relating to sporting events of national importance:
Provided that the Guidelines issued before the promulgation of the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Ordinance, 2007( Order 4 of 2007), shall be deemed to have been issued validly under the provisions of this section.
Rule 2(b) 'content rights owner or holder' shall mean a person for the time being having or holding the broadcasting rights in respect of a sporting event of national importance within the territory of India;
Rule 3 3 Sharing of Sports Broadcasting Signals with Prasar Bharati. (1) Every content rights owner or holder and television or radio broadcasting service provider intending to carry a live television broadcast on any cable television network or Direct-to-Home network or intending to make a radio commentary broadcast in India, of a sporting event of national importance shall at least forty- five days prior to the proposed date of telecast or broadcast, inform the Prasar Bharati about the same and offer to share the live signals in the manner and on such terms and conditions as are hereunder specified.
(2) The content rights owner or holder and television or radio broadcasting service provider shall provide the live signals to the Prasar Bharati at the Master Control Room of Doordarshan or as the case may be, the Master Control Room of All India Radio, at its own cost.
(3) The signals to be shared with the Prasar Bharati by the content rights owner or holder, shall be the best feed with all features as that of provided to a broadcast service provider in India, free from commercial advertisements.
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(4) The signals referred to in sub-rules (2) and (3) shall include signals of the pre-live event and the post-live event coverage.
(5) The Prasar Bharati shall not be under any obligation to carry the logo of any channel available in India.
(6) The Prasar Bharati shall have all the rights to generate, pre, post and intermission programming.
(7) The Prasar Bharati shall have the right to retransmit the signals on its terrestrial and Direct-to-Home networks including the AM and FM Channels of the All India Radio.
Rule. 5 - Responsibility of a television or radio channel broadcasting the sporting event. If the television or radio broadcasting service provider is different from the content rights owner or holder, it shall be its duty to ensure that adequate arrangements for compliance with the provisions of the Act and the rules are made, at the time of acquisition of the rights from the content rights owner or holder.”
26) It is a common case of the parties that the “world feeds” which the
appellant shares with Prasar Bharati is covered by the definition
of 'broadcasting' under Section 2(b) of the Act and in that sense
the appellant provides broadcasting network service as defined in
Section 2(d) of the Act. Further, the 'world feed' would amount to
'content' under Section 2(h) of the Act. It is these contents which
are to be mandatorily shared by the appellant with Prasar Bharati.
However, at the same time such contents have to be 'without its
advertisements'.
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27) First thing which we need to deliberate upon is as to whether the
logos of the advertisers contained in the 'world feed' shared by
the appellant with Prasar Bharati amounts to 'advertisement'. As
noted above, the plea of the appellant in this behalf is that since
the broadcast signal of the sporting event provided by the event
organiser (ICC in the instant case) includes these logos and the
appellant is supposed to share the same as it is with Prasar
Bharati, it would not be treated as advertisements. It is also
argued that these are not commercial advertisements as the
appellant is not getting any revenue from the sponsors. To our
mind, this is a specious argument to ward off the situation with
which the appellant is confronted with. It is not denied by the
appellant that these logos are of the event sponsors, known as
'On-Screen Credits' in industry parlance. The appellant has itself
shown the photographs thereof which have been reproduced by
us above. No doubt, such logos or On-Screen Credits may
appear at the time of featuring replays like ball delivery speed and
when a player gets out either when he is bowled, run out or
caught or they are shown while depicting player statistics,
scoreboard, match summary, graphs, etc. Nonetheless, these are
the advertisements the sponsors like Pepsi, LG, Fly Emirates,
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Reliance, etc. These sponsors have entered into arrangement for
showing their logo on the occasions referred to above. It is also
not in dispute that these sponsors pay for such On-Screen
Credits. Insofar as such sponsors are concerned, their motive in
giving these logos to be shown on Television is crystal clear, viz. it
is intended to advertise their company names for commercial
motives in mind. These are, thus, commercials of the sponsors
which would clearly be treated as not only advertisements but
commercial advertisements. Once we hold that what is shown
are advertisements, the question as to whether these
advertisements are shown because of some arrangement
between the organisers of the tournament and the sponsors or as
a result of arrangement between the broadcasters, i.e. the
appellant, and the sponsors is immaterial. Section 3 of the Sports
Act does not make any distinction between the aforesaid two
kinds of advertisements. What is prescribed, in no uncertain
terms, is that sharing of the live broadcasting signal has to be
without advertisements.
28) On a plain reading of Section 3 of the Sports Act, we are inclined
to agree with the submission of Mr. Rohatgi that the obligation to
share such sports broadcasting signals is upon the following
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persons: (i) content rights owner; (ii) content holder; and (iii)
television or radio broadcasting service provider. Any of these
above categories of persons are not allowed to carry a live
television broadcast on:
(i) any cable or direct-to-home network;
(ii) radio commentary broadcast in India,
if
such television broadcast
or
radio commentary broadcast
happens to be of sporting events which is of national importance
unless
such content rights owner or content holder or broadcasting service
provider simultaneously shares the live broadcasting signals with
Prasar Bharati
to enable Prasar Bharati to re-transmit the same on its terrestrial
networks and DTH networks
in such manner and on such terms and conditions as may be specified.
29) The guidance for laying down the terms and conditions that can
be specified on which sharing of the broadcasting signals has to
take place with Prasar Bharati, is mentioned in sub-section (2) of
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Section 3, which specifically mentions that such terms and
conditions shall also provide that advertisement revenue sharing
between the content rights owner or holder and Prasar Bharati
shall be in the ratio of 75:25 in the case of television coverage;
and 50:50 in the case of radio coverage. Section 4 of the Sports
Act, 2007 provides for penalties in case of any violations of the
terms and conditions as may be specified under Section 3 subject
to the condition that amount of a pecuniary penalty shall not
exceed ₹1 crore.
30) The preamble of the Act which gives an idea of the purpose
behind enacting this statute reads as under:
“An Act to provide access to the largest number of listeners and viewers, on a free to air basis, of sporting events of national importance through mandatory sharing of sports broadcasting signals with Prasar Bharati and for matters connected therewith or incidental thereto. ”
31) It becomes apparent from the aforesaid reading of the Preamble
that purpose is to provide access to the largest number of
listeners and viewers, on a free to air basis, of sporting events of
national importance. This task is given to Prasar Bharati.
Notwithstanding more popularity which the private channels have
gained over a period of time, coverage of Prasar Bharati is far
more reaching insofar as Indian population is concerned as it
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reaches almost every nook and corner of the country. Further the
radio as well as television broadcasting of Prasar Bharat is free of
cost. It is for this reason that the law in the form of Sports Act is
enacted in order to ensure that such sporting events of national
importance are made available to every citizen of this country,
irrespective of his/her financial conditions.
32) Section 3, thus, aims to achieve two purposes:
(a) to provide access to largest number of listeners and viewers on a
free to air basis. The principle of purposive interpretation, in this
context, meant that Prasar Bharati was supposed to telecast
these matches for the benefit of general masses spread through
out India, who otherwise do not receive signals of private
channels like the appellant or are not having financial capacity to
pay for these channels. Thus, it was a larger public interest which
was sought to be served and noble objective was kept in mind
while enacting the statute;
(b) insofar as income that is generated from advertisements is
concerned, which are shown on television or broadcasted on
radio, the revenue thereof is to be shared between the
Broadcaster and Prasar Bharati. The purpose is obvious. It is the
broadcasting service provider who is supposed to share the live
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broadcasting signal with Prasar Bharati, which has the
arrangements with the advertisers and, thus, takes money from
those who book their advertisements to be broadcasted on
television or radio. However, when the signals are shared with
Prasar Bharati enabling it to simultaneously retransmit the same
on its terrestrial networks or DTH networks, the viewership/
audience gets multiplied as the reach is to much larger section of
citizenry through Prasar Bharati. Therefore, Section 3(1), in the
first instance, mandates that the sharing of live broadcasting
signals with Prasar Bharati has to be 'without its advertisements'.
Exception is, however, made in sub-section (2) of Section 3 which
enables the broadcasting service provider to even share the
contents along with advertisements, but subject to the condition
that there has to be a sharing of revenue in the proportion
prescribed in sub-section (2) of Section 3. As aforesaid, when live
broadcasting signal is shared containing advertisements, those
advertisements have much larger viewership because of its
telecast/broadcast on Prasar Bharati. The benefit of
advertisement in such a case would accrue to those who have
booked the advertisements and the service provider, in such an
eventuality would definitely be in a position to charge much more
from the advertisers. It is a matter of common knowledge that
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rates of advertisement go up when circulation thereof is
enhanced. When we keep in mind the aforesaid twin objectives
of the Act, the answer to the issue raised becomes obvious. The
application of rule of purposive interpretation would go against the
appellant and in favour of the respondent.
33) With this, we advert to the next question, namely, whether the
word 'its' refers to the advertisements that are booked only by the
broadcasters, namely, the appellant in the instant case? Let us
now understand the meaning of the word 'its' occurring in the
obligation cast upon the broadcasting service provider to share
the live broadcasting signals 'without its advertisements'. From
our aforesaid discussion, it becomes clear that the sharing of the
signals has to be without any advertisements and if the
advertisements are also to be included in the signals, there has to
be sharing of the revenue. The learned Attorney General has
rightly argued that the word 'its' cannot be given limited meaning
by confining it to advertisements only of broadcasting service
provider. Section 3 which starts with negative covenant very
expressly puts an embargo to all the three categories mentioned
therein, viz., content rights owner, (ii) contents holder as well as
(iii) television or radio broadcasting service provider not to have
Civil Appeal No. of 2016 Page 34 of 36 (arising out of SLP (C) No. 8998/2014)
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television broadcast either through cable or DTH and not to have
any radio commentary broadcast unless live broadcasting signal
is shared simultaneously with Prasar Bharati. Examined in this
hue, it becomes clear that the words 'without its advertisements'
which follow immediately after the words 'unless it simultaneously
shares the live broadcasting signal' has to be given a meaning
that such broadcasting signals are to be without advertisements,
whether it is of the content rights owner, content holder or that of
television or radio broadcasting service provider. It is made
crystal clear by providing the definition of 'content rights owner' or
'holder' in Rule 2(b) of the Rules, 2007. Rule 3(3) takes the issue
beyond any pale of doubt when it mentions that the signals to be
shared with Prasar Bharati by the content rights owner or holder
are to be the best feed that is provided to broadcast service
provider in India and has to be 'free from commercial
advertisements'. Thus, even if it is ICC which has included those
advertisements/logos, the feeds have to be without those
logos/advertisements inasmuch as nobody can dispute that the
content rights owner are content holder, i.e, ICC in the instant
case has included those logos/advertisements from purely
commercial angle. Thus, the arrangement between the ICC and
the appellant, is totally inconsequential.
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34) The upshot of the aforesaid discussion would be to conclude that
there is no merit in the instant appeal which is, accordingly,
dismissed with costs.
.............................................J. (A.K. SIKRI)
.............................................J. (PRAFULLA .C. PANT)
NEW DELHI; MAY 27, 2016.
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