By deciding that “free” public access broadcasts of “listed” sporting events on terrestrial television is paramount and overrides the need to maintain “undistorted competition” (represented by competition law, free movement of goods and respect for property rights), the House of Lords will have enabled much of Whitehall to depart on holiday with relief.
The judgment of the Court of Appeal in R v. ITC ex parte TV Danmark 1 Ltd (see our October 2000 early warning) which essentially decided that the need to maintain undistorted competition should override free public access and which would have denied public broadcasters an advantage in bidding for listed events, exposed the UK government to action in the European Court for failing to comply with European law as well as considerable public unpopularity – a possibly unique double whammy.
Something clearly had to be done and the intervention of Whitehall and the BBC before the House of Lords seems to have done the trick for now at least.
But whilst the judgment does appear more accurately to reflect the intention of the Community legislature, some questions still remain. If, as Lord Hoffmann confidently asserted, undistorted competition was only referred to in the TV Without Frontiers Directive because the Community legislature intended to distort it (and in effect discriminate against commercial broadcasters), why didn’t the Community legislature actually express its intention a little bit more clearly? As all Community legislation must clearly state the reasons on which it is based, Kirch (who are challenging the UK’s implementation of the Directive in the European Court) may actually draw some comfort from the House of Lords.
While this legal challenge awaits a resolution, however, sports clubs, federations and commercial broadcasters are bound to fight back. Expect intensified lobbying to reduce the number of events that are listed in future. Also expect pressure from commercial broadcasters on public broadcasters to stop hoarding rights that they don’t use (following the so-called “anti-hoarding” law in Australia), as advocated recently by Kelvin MacKenzie. Alternatively, commercial broadcasters could use competition law to attack the arrangements whereby the terrestrial channels do not show different listed football matches that take place at the same time because they don’t want to compete with each other. Either way, the issue of “listings” is not going to go away.