CoA rejects JML Direct’s challenge in EPG listings dispute

02 Feb 2010

The Court of Appeal today dismissed an appeal by TV shopping channel JML Direct relating to the allocation of Electronic Programme Guide (EPG) numbers by Freesat, a multi-channel TV service owned jointly by the BBC and ITV.  The ruling has implications for the interpretation of regulatory codes.

JML had appealed the earlier judgment of Mr Justice Blackburne’s, in which he found that Freesat had not breached its contract with JML when allocating EPG numbers prior to its launch in May 2008.  (An EPG is an on screen television programme guide used by digital TV systems.)

The Court of Appeal considered three questions:

(1) whether Freesat had failed to “publish and comply with an objectively justifiable method of allocating listings”, as required by the Ofcom Code of Practice (with which Freesat was bound to comply by the terms of its contract);

(2) whether the requirement in Freesat’s EPG Listing Policy (with which it was also bound to comply) for it to “take into account” a number of specified matters when allocating EPG numbers permitted it to attach no weight to one or more of those factors if it had rational grounds for doing so;

(3) whether the Judge’s finding that one of the reasons relied on by Freesat for its allocation was irrational meant that Freesat’s entire decision was invalid and in breach of contract.

The Court rejected JML’s arguments on each of these questions and dismissed its appeal.

Tim Ward and Ben Lask were instructed by the BBC on behalf of Freesat.

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Tim Ward QC
Ben Lask