Talk Radio’s coverage of the opening Euro 2000 football championships was nothing if not innovative.
Topic: Sports marketing
Who: The BBC and Talk Radio
When: June 2000
Talk Radio’s coverage of the opening Euro 2000 football championships was nothing if not innovative. Without any official right from UEFA or the EBU to broadcast live radio match coverage Talk played library recordings of the competing teams’ national anthems before kick off and then, over a backing track of football crowd sound effects, broadcast commentary by Talk pundits as they watched the match on a TV in a studio near the ground. There was no allegation that Talk Radio was copying anyone else’s actual broadcasts or commentary of the matches. It was the way Talk Radio promoted their broadcast as “live” that irked the BBC, who alleged it was a passing off.
The BBC is a member of the European Broadcasting Union, a collection of European public service broadcasters who combine their resources to acquire broadcasting rights in sporting events. The BBC uses direct sound feeds and commentary from live attendance at the matches.
The case went to the High Court in London, which refused the BBC a temporary injunction. The Court agreed that the ordinary listener would regard a “live” commentary as coming from the stadium itself. It also felt that Talk’s references to the commentary during the broadcast as “unofficial” did not prevent a misrepresentation being made. Where the BBC’s claim failed, however, was in showing they owned any goodwill in “live” coverage, which could be damaged by what Talk was doing. Misrepresentation, goodwill and damage must all be proved for a case in passing off to be made.
Why this matters:
The UK does not recognise a separate “sports right”. Sport has to rely on existing legal protection such as copyright and trade mark rights to protect its rights. In this case there was arguably nothing to stop Talk Radio sitting its commentators in front of a television and broadcasting their commentary, provided the sound was turned down, preventing any infringement of the rights in the TV broadcast. The potential problem arose from the way Talk presented and promoted this. The case illustrates a potential area of weakness in audio-only broadcasting or webcasting, where information ranging from commentary to score updates can be lawfully provided. Part of the value in exclusive broadcasting lies in the broadcasters’ exclusive access to the venue and the live broadcast feed. As quality live events become increasingly more expensive and the methods of broadcast distribution increase, such innovative ambushing techniques are bound to occur. Whether or not they are unlawful will be a matter of fact on each occasion.