Irrationality did not undermine TV menu ranking decision, finds Court of Appeal

A broadcasting platform did not break the rules on the placingof stations in its electronic programme guide (EPG) even though itsdecision was partly irrationally based and it used criteria notspecifically listed in its policy.

The Freesat platform is a satellite service broadcasting free toair stations. Television shopping channel company JML asked forslots on the platform for two of its channels and entered into acontract with Freesat for two slots on its EPG.

Platform operators must abide by a code of practice on theoperation of EPGs produced by media regulator Ofcom and mustpublish their own policies on how they allocate EPG slots.

A low-numbered slot within a genre is highly prized bybroadcasters who are aware that viewers often do not scroll farbeyond the channels that are initially displayed.

JML was initially allocated slots that put it on the second pageof listings in its genre. It took Freesat to court to argue thatthe decision was in breach of the Ofcom code and Freesat's ownpolicy because it was based on some irrational judgements andinvolved criteria not listed in Freesat's policy.

The High Court last year rejected the arguments and said thatFreesat was entitled to make the decision as it had. The Court ofAppeal has just ruled in agreement with the High Court.

JML objected to the fact that Freesat based its decision onwhere to place its channels on the audience ratings for the variouschannels vying for positions in the EPG and on where channels werealready listed on the Freeview TV platform.

Freesat's policy had said that it would allocate channels takingseveral things into account, including "viewer convenience andexpectations". The Ofcom code said that broadcast platforms had to"publish and comply with an objectively justifiable method ofallocating listings".

JML said that its use of TV ratings figures and the Freeviewpositioning violated both of these requirements because thoseconsiderations were not listed in Freesat's policy.

"In my view the first question for decision so far as the Codeis concerned is whether a criterion framed in terms of 'viewerconvenience and expectations' is expressed at too high a level ofgenerality to satisfy its requirements," said Lord JusticeMoore-Bick in his ruling. "I do not think it is, because the wholetenor of the [Ofcom] Code is such as to indicate that broadcriteria will suffice, provided they comply with the requirementfor an objectively justifiable method of allocating listings."

The judge said that this part of Freesat's policy was in linewith the Ofcom code. "The criteria, taken individually or together,represent a rational and objective set of factors by reference towhich allocations are to be made. The weight to be given to eachfactor is left to Freesat, which must make its own judgment," hesaid.

He rejected JML's argument that if Freesat was going to takeratings and Freeview positionings into account it should state thatspecifically in its policy.

"If the Code required a detailed description to be published ofthe method by which listings would be allocated or the factors thatwould be taken into account, it could easily have made that clear.Instead it simply calls for platforms to publish and comply with anobjectively justifiable method of allocating listings," said theruling.

JML also argued that when Freesat said it would consider a listof factors, including when it agreed a contract with variousapplicants, it was obliged to give at least some weight to each ofthem. Freesat had said that it had not considered the timing issueat all.

Partly this was because of negotiations with channel producerswhich delayed the signing of some contracts, and partly becauseFreesat had difficulty in establishing the dates of some of theagreements.

JML said that this was an irrational basis for a decision andthat because the decision was based on one irrational factor itwas, therefore, an irrational decision.

The Court of Appeal accepted that this was irrational but saidthat it did not have enough influence on the company's decisionabout which slots to allocate to JML to undermine that decisionmaking process.

"I do not think that the [High Court trial] judge's findings goso far as to establish that [Freesat's] decision was significantlyinfluenced by the perceived difficulty in identifying the dates ofthe EPG contracts," said Mr Justice Moore-Bick. "JML is thereforeunable to establish a breach of contract because it has failed toshow that the decision to place no weight on [the time issue] wasaffected by any irrational or arbitrary factor."