Broadcasting rights to Euro 2000, i.e. the right to broadcast live coverage of football matches from within stadia, are held by the European Broadcasting Union (EBU). On UK radio this includes the BBC plus, in selected regions, Capital Radio.
Talksport, although a licensed UK radio broadcaster, is not a member of the EBU. Unable to broadcast live coverage it has been covering Euro 2000 “off tube” instead. Talksport’s commentators sit in front of ordinary television sets and describe to radio listeners what they can see on the screen. Ambient pre-recorded background sounds are added to give a sense of excitement.
The BBC, having paid a considerable price for live coverage rights, tried to put a stop to this. It applied to the High Court for an injunction:
(a) to stop Talksport from representing that its radio coverage of Euro 2000 football matches was “live”, or that Talksport holds official broadcasting rights in those matches, and
(b) to compel Talksport to make it clear to listeners that the coverage was being provided from outside the venue and was unofficial or unauthorised.
Talksport gave an undertaking not to represent that coverage came from inside the stadium and not to represent that it held official broadcasting rights. However, in giving these undertakings Talksport refused to abandon the use of recorded sound effects. The BBC therefore applied for an injunction to prevent Talksport from representing by the use of sound effects that its commentary, or the crowd noises, came from within the stadium.
The BBC’s claim was for passing off which required it to establish (a) goodwill, (b) misrepresentation and (c) damage. Mr Justice Blackburne accepted last week that Talksport’s coverage was “deceptive and therefore wrong”. However, he took the view that broadcasting sporting events is “an activity” rather than “a product” and the word “live” was simply a description. A long line of cases has established that if words are no more than descriptive those words alone cannot give rise to a passing off claim. The BBC did not have any protectable goodwill simply in live coverage of sporting events. Finally, the BBC’s claims to have suffered damage were “fanciful”.
The Talksport case raises fascinating questions about the broadcasting rights in sports events. What is the meaning of “live broadcast”? From the point of view of the owner of a venue, the promoter of an event or the players, what is the point of distinguishing between “live” and “off tube” radio commentary? If, “off tube” rights exist, who owns them? If Talksport continues to provide “unofficial” radio coverage these questions, and others, will continue to be raised.