17 Sep 2016

On-Screen Credits in Sporting Events are 'Advertisements' - Supreme Court

Any Television Broadcasting Organisation is prohibited from 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 to enable it to retransmit the same on its terrestrial and DTH network. This is the legal position in terms of the 'Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007' enacted by the Parliament. Further, such 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. However these advertisements are not to be included while sharing the live broadcasting signals with Prasar Bharati. In other words a clean feed of the live-event must be shared with Prasar Bharati.

In the aforesaid background a dispute went upto the Supreme Court. It was argued by Prasar Bharati that in the broadcast signal of a sporting event provided by an event organiser where 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., such features must not contain any 'logos' of any organization [commercially known as “On-Screen Credits”]. According to Prasar Bharati such On-Screen credits are advertisements and should not form part of such features. This position of Prasar Bharati was accepted by the High Court and the Supreme Court was concerned with the correctness of this position in appeal which formed its decision in Star Sports India Pvt. Ltd. v. Prasar Bharati [Civil Appeal No. 5252/2016][decision dated 27.05.2016].

Before the Supreme Court it was argued that "those logos embedded as it is and has no control over the same" and therefore "while sharing the signals with Prasar Bharati, there was no mechanism or methodology to remove these logos". It was alternatively argued that the Broadcasters were being "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".  

Rejecting these submissions and holding in favour of Prasar Bharati the Supreme Court observed as under;
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, 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. ...
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 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.
(b) ... 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 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.
On such count the Supreme Court held that it is obligatory on the part of the television broadcasters to share clean-feed of the sporting events and in the event of non-compliance to do so, they were obliged to even share the revenue from such credits.

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