The Hindu : Front Page : ESPN told to telecast ODIs on Doordarshan

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Thursday, Dec 23, 2004

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Front Page

ESPN told to telecast ODIs on Doordarshan

By Our Staff Reporter

KOCHI, DEC. 22 . A Division Bench of the Kerala High Court today directed ESPN to telecast the India-Bangladesh one-day cricket series starting on Thursday through Doordarshan channel on a tentative revenue sharing ratio of 80:20 between ESPN and Doordarshan.

The Bench comprising the Chief Justice B. Subhashan Reddy and Justice Kurian Joseph issued the interim order on a writ petition filed by S. Ramesh, former Kerala cricket team captain and another person.

The court made it clear that Doordarshan should exhibit the ESPN's logo and the advertisement committed by ESPN for the one-day series.

Counsel for ESPN contended that the channel was a commercial venture and if Doordarshan did not bid for the rights of telecast, it was not the fault of ESPN. He contended that ESPN was not amenable to any Government controls as it had purchased the telecasting rights of the cricket matches being played on foreign soil.

The court said that if the argument was accepted, it only meant that ESPN "has got unfettered right to do anything over the terrain of Indian soil. It only results that the 4th respondent (ESPN) was not at all governed or covered by the provision of the Indian Telegraph Act, 1885 or the Telecom Regulatory Authority of India Act (TRAI Act), 1997." The court said that it was unable to agree with the arguments of ESPN's counsel that it had the uncontrolled right to telecast the series through cable networks in India.

It observed that the notification issued on January 9, 2004 had brought the broadcasting and cable services within the fold of telecommunication service defined in section 2(1)(k) of the TRAI Act. There was another notification entrusting TRAI to fix the terms and conditions on which an "addressable system" shall be provided to customers and also parameters regarding the maximum time for advertisement in pay channels and other channels. The court said that the broadcasting had to be only in consonance with the provisions of the Telegraph Act and TRAI Act and the Rules and Regulations made therein. The Union Government and others had a duty to see that the statutory provisions which were "traceable" to fundamental rights under Article 19(1)(a) of the Constitution was scrupulously followed.

Balancing rights

The Bench observed that the fundamental right to freedom of expression took in its fold the print and electronic media and in the context of electronic media, it was `broadcasting.' The concept of broadcasting had to be understood in the broad sense of including the rights of both broadcaster and viewers. Whenever there was a clash of interest between broadcaster and viewers, the fundamental rights of viewers took primacy. The court had to "balance the professional rights of the 4th respondent (ESPN) with that of the larger fundamental right of the people of India." It said that if the relief as sought for was granted, it would ensure "the benefits of 103 crores of Indian people to enjoy their fundamental right of expression". The court also pointed out that Doordarshan was willing to telecast one-day series on a revenue sharing basis of 80:20.

The same ratio had been followed in the cricket series played in Sri Lanka earlier this year. There was no reason why the same arrangements could not be made for this one-day series also, it observed. The final rates could be settled as may be determined by the legal principles to be stated by the Supreme Court in the appeals against the Madras and Bombay High Court directions for telecasting the India-Pakistan cricket match series held in March this year on DD.

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