In far reaching domino effects, Delhi High Court handed down a major landmark judgment on 13th March, 2013 in Star India Pvt. Ltd. v. Piyush Agarwal & Others, recognising a specific and distinct right against unjust commercial enrichment under common law. Star India is owned by Rupert Murdoch’s News Corp which also owns Dow Jones & Co., publisher of The Wall Street Journal. As per Star India website, they operate about 60 channels in ten languages reaching more than 300 million viewers across 53 countries.
In 2012, Star India paid a whopping sum of Rs. 3581 crores to successfully bid for exclusive media rights to cricket matches organised by the Board of Cricket Control in India (BCCI) from 2012 to 2018.
This included all international cricket matches played in India, as well as domestic competitions including the Ranji Trophy and the Irani Cup. The Star deal encompassed coverage rights for the Internet and mobile, for 96 matches.
A civil suit was filed in Delhi High Court whereby on 8th Nov 2012, Hon’ble Justice Valmiki J Mehta held that the contract entered into between Star India and the BCCI did not prevent the defendants from transmitting cricket updates provided that the same took place two minutes after the live broadcast.
However, STAR appealed against the order on the grounds that BCCI wasn’t given a chance to present its side thereon. That judgment was set aside by the division bench of Delhi High Court on grounds of serious procedural infirmities.
Division bench decided and remanded the case back to the single judge, and therefore the case was heard afresh by another single judge bench presided over by Hon’ble Justice M.L. Mehta. He jointly heard three cases, CS (OS) Nos. 2722/2012, 3232/2012 and 2780/2012 filed by Star India Pvt. Ltd against Piyush Agarwal (Cricbuzz), Idea Cellular and OnMobile Global Ltd. For sending out real time short message service (SMS) alerts and cricket updates (ball by ball) for commercial enrichment. Immediate relief prayed for by the petitioner was for interim injunction.
Petitioner claimed that vide an agreement dated 10th August, 2012 between Star India and Board of Cricket Control in India, BCCI has assigned a “bouquet of rights‟ exclusively to STAR. Two of such rights, are regarding “Mobile Rights” and “Mobile Activation Rights”. STAR and BCCI contended that the dissemination of match information through live score cards, match updates and score alerts constitutes the tort of “unfair competition” and “commercial misappropriation/unjust commercial enrichment”.
In the court, defendants argued that they publish the information only after it becomes public. They also argued that they neither copy Star’s content nor provide access to any audio or visual footage of the broadcast. Defence argued that, “in the absence of a legal right, the same cannot be enforced and no relief as prayed Order VII Rule 11 of the Code of Civil Procedure (CPC) for the lack of a cause of action”. Defendants contended that the plaintiff cannot seek any remedy under common law because Section 16 of the Copyright Act, 1967 precludes the plaintiff from claiming a copyright or any other similar right, other than those which are provided in accordance or under the Act.
Alternatively, the defendants also contended that they are exonerated under Article 19(1)(a) of the Constitution whereby they have the freedom to carry on trade by dissemination of information to the public and such rights can only be subject to the reasonable restrictions under Article 19(2) and not by common law.
To address various contentions the Hon’ble Court framed following Issues:
In a major departure from their earlier decision dated 8th Nov, 2012. The court held that telecom operators and providers of mobile content services can offer updates of cricket scores with a lag of 15 minutes or by obtaining a license from Star India. Further, the court observed that there is no merit in the argument that the match information has entered public domain i.e. available to the public, the very instance it is broadcasted by the plaintiff. It is similar to saying that the plot of a book or movie has entered the public domain as soon as it is released. It is important to note that the Hon’ble Court also took notice that “the plaintiff herein has sought a remedy de hors the Copyright Act, 1957”. The bench passed the following judgement and validated the “Hot News” concept in India.
“Before concluding and passing an operative order, I must reiterate that there is a difference between contemporaneous dissemination of match information in the form of ball-by-ball or minute-by-minute score updates/match alerts and reporting noteworthy information or news. In light of the above mentioned observations, I hereby order the following:
In view of the above, the application of the plaintiff under Order XXXIX Rule 1 & 2 of CPC is allowed to the extent indicated above, whereas the application of the defendant under Order VII Rule 11 stands dismissed”.
Principle enunciated in the INS Case with respect to “unfair competition” and “unjust commercial enrichment” has been followed in other cases regarding dissemination of updates/alerts arising from sporting events:
In all the above three cases, the courts granted the injunction following the ratio of the INS Case.
This judgment is likely to cover other platforms i.e. IVR, Apps, Mobile Internet, MVAS apart from hundreds of different sites, which offer live updates like yahoo cricket and Rediff cricket. This ruling in all probability will affect all of them and they may not be able to provide such updates even in other sports and events. Will media be relegated to the role of only reporting on what the court considers history? Basis of deciding time lag 2 minutes or 15 minutes before news presumably enters into public domain or becomes stale is also without any clear guidelines. “Why 2 minutes, why 15 minutes, why not after 5 pm when the sports channel gives a repeat telecast of the day’s match,” as argued by senior advocate Abhishek Manu Singhvi.
No doubt, the judgment dated 13th March, 2013 is very important but it may be to too early for Star India to start breaking coconuts. Legal fraternity will be watching with interest as the judgment is expected to be challenged in a superior court. It is yet to be seen if this judgement remains as a landmark in this area of law or gets overruled. For now, public interest hangs in balance till the suit is finally decreed.
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