TVDANMARK 1 Ltd, R (on the application of) v Independent Television Commission, Court of Appeal - Administrative Court, September 08, 2000, [2000] EWHC Admin 389
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TVDANMARK 1 Ltd, R (on the application of) v Independent Television Commission, Court of Appeal - Administrative Court, September 08, 2000, [2000] EWHC Admin 389
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CO 3036/2000IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISIONCROWN OFFICE LISTRoyal Courts of JusticeStrandLondon WC2A 2LL 08 September 2000B e f o r eMr JACK BEATSON Q.C.Sitting as a Deputy High Court Judge THE QUEEN vINDEPENDENT TELEVISION COMMISSIONEX PARTE TVDANMARK 1 LIMITED- - - - - - - - - -(Transcript of the Handed Down Judgment ofSmith Bernal Reporting Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)- - - - - - - - - -MR P LEAVER QC, MS E GLOSTER QC (For Judgment) and MR A CHOO-CHOY appeared on behalf of the AppellantMS E APPLEBY QC AND MR J MOFFETT (instructed by Simmons & Simmons, London EC2M) appeared on behalf of the Respondent- - - - - - - - - -JudgmentAs Approved by the CourtCrown Copyright © Mr JACK BEATSON Q.C. The Applicant, TVDanmark 1 ("TVD"), is a television broadcaster established in the United Kingdom, holding a satellite television licence granted to it under Part 1 of the Broadcasting Act 1990 by the Independent Television Commission (the "ITC"). On 5 June this year acquired the exclusive rights to televise the five World Cup 2002 away matches of the Danish national football team live into Denmark from UFA Sports GmbH ("UFA"), a German company for Danish Kroner 3.35 million per match. On 5 July TVD applied, as it was required to by section 101B(1) of the Broadcasting Act 1996, to the ITC for the ITC's consent to TVD's broadcast of these matches exclusively live into Denmark. On 17 August 2000 the ITC refused to give its consent and on 22 August 2000 TVD applied for permission to move for the judicial review of the ITC's decision.The application for permission came before me on Friday 1st September, the day before the first match was to be played. Evidence was filed on behalf of the applicant by Mr Lund, its Managing Director, and on behalf of the ITC, by Mr Johnson, Head of Programme Policy at the ITC, the official responsible for the handling of TVD's application. The ITC did not resist the granting of permission, which was granted and, in view of the urgency, I heard the substantive application. Section 101B(1) of the Broadcasting Act 1996 was inserted into the Act by the Television Broadcast Regulations 2000 S.I. 2000 No. 54 in order to implement the 1997 amendments to the 1989 Television without Frontiers Directive, Council Directive 89/552/EEC, contained in Directive 97/36/EC, and in particular the new Article 3a(3) concerning broadcasts of designated events to another Member State. In certain circumstances, including this case, such broadcasts are prohibited without the consent of the ITC. TVD's request was the first one for consent under section 101B. As will be seen, its provisions differ from those governing consent by the ITC in respect of United Kingdom domestic listed events.TVD's legal challenge stems from the way the Statutory Code on Sports and other Listed Events was revised to incorporate the provisions of the Directive. In the case of consents to United Kingdom domestic listed events the criteria in the Code are concerned with whether broadcasters have had a genuine opportunity to acquire the rights in question on fair and reasonable terms. Although the Directive and section 101B(1) are concerned with the "exercise" of rights by a broadcaster, the new paragraph 26 of the Code dealing with consents in respect of broadcasts to another Member State states that it will take into account similar criteria to those applicable to United Kingdom domestic listed events. At the core of this case is whether the fact that TVD purchased its exclusive rights in the course of an auction in which other broadcasters, including DR and TV2, the Danish public broadcasters, participated meant that consent should have been granted as it probably would in a purely domestic case, or whether, having acquired the rights, TVD should have offered them to the Danish public broadcasters. Mr Leaver Q.C. on behalf of TVD submitted that there is no legal basis in the Directive, the 1996 Act or the Code for the ITC's request that TVD offer the rights they acquired to DR and TV2. TVD also claimed to have a legitimate expectation that the ITC would grant consent in accordance with the criteria stated to be relevant in the Code and, as a minimum, should have been given clear notice that the ITC was minded to apply different criteria. The legislative and regulatory framework The rules governing the broadcasting of sporting and other events of national interest are...See the full content of this document
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