The Broadcast of World Cup Cricket matches and the SBS Act, 2007 – Did the Delhi HC get it right?

The BS has carried a story on how the Delhi High Court has granted ‘John Doe’ interim injunction orders restraining 144 defendants from infringing on ESPN’s broadcasting rights in the ICC Cricket World Cup, 2011 since ESPN has bought the broadcast rights for the same. The Delhi High Court has also reportedly extended the injunction to un-named cable-operators who may be discovered during the course of the World Cup. The Delhi High Court has passed such order earlier in the case of the IPL matches. We’ve blogged about it over here. The ICC World Cup, 2007 however is on a different footing because of the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharti) Act, 2007.

(i) The history of the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharti) Act, 2007 (SBS Act, 2007): Some of our readers may remember the incessant squabbles, back in 2004, between the Sports Broadcasters and the government owned Prasar Bharti which runs the free-to-air Doordarshan (DD) channel. Although the quality of content leaves much to be desired, DD is known to reach every nook and cranny of the country without the requirement for a cable network. Given the importance of cricket in ‘cricket-crazy’ India, DD used to strike deals with sports broadcasting companies for sharing the signals for particular cricket matches. Several times negotiations have broken down and the dispute usually ends up in Court. This happened in 1995 during the Hero Cup and more recently in 2004 when Prasar Bharti and the private sports broadcasters took their slugfest to the Supreme Court. At that time the Supreme Court played a negotiator and forced the private broadcaster – Ten Sports – to enter into a revenue sharing agreement with DD. The Supreme Court’s basis for this compulsory licensing was the fact that ‘cricketing events’ in India were of national importance and that it was in public interest to mandate the compulsory licensing of the signals. (More on the squabbles over here & here) Eventually everybody got tired of the yearly squabbles and the Information & Broadcasting Ministry introduced into Parliament the Sports Broadcasting Signals Act, 2007 which was passed without too much of a fuss. The legislation mandates a revenue sharing of 75:25 for television coverage and 50:50 for radio coverage.

(ii) The notification of 3rd October, 2007: Once the SBS Act was passed, it was left to the Central Government to notify sporting events of national importance, the broadcast signals of which will necessarily have to be shared with DD. On 3rd October, 2007 the Ministry passed a Notification (available over here) declaring the following categories as sporting events of national importance:

(1) All official One-Day and Twenty-20 matches played by the Indian Men’s Cricket Team and Such Test matches as are considered to be of high public interest by the Central Government.
(2) Semi-finals and finals of Men’s World Cup and International Cricket Council Championship Trophy.

This notification basically ensures that ESPN has to mandatorily share with DD the broadcast signals for all cricket matches being played by India & also the semi-final and final for the World Cup regardless of whether or not India makes it (Ahem!). Please note that IPL matches are not covered under this notification.

(iii) Does it make sense for the Delhi High Court to grant an injunction in light of the SBS Act, 2007?

Whether or not you agree with the SBS Act, 2007 the fact of the matter remains that it is the law and even as we speak ESPN et. al. are sharing the signals for India matches with DD. Since DD is in any case free to air, none of the cable operators or hotels require a special licence to broadcast the India matches. They can just pick up the DD signal. Of course if they want to broadcast a cricket match between Netherlands and Bangladesh, they will need a licence to broadcast the ESPN signal. I have not had access to the Order passed by the Delhi High Court in this case but I’m very curious as to whether ESPN et. al. have disclosed the SBS Act to the Court. It is unlikely that the Delhi High Court would have passed such a wide injunction order against 144 defendants plus unnamed defendants if it had been appraised of this Act. Given the fact that this Order applies all over India, it could be implemented in Kanyakumari and the poor cable operator will have to pay up or trudge all the way to Delhi in order to contest the case. This is the danger of ex-parte remedies.