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
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
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.
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