The Madras High Court, in a judgment, has left it to the Ministry of Information & Broadcasting and the Ministry of Sports and Youth Affairs to decide whether live sports broadcast should be shared with national broadcaster Prasar Bharti for online streaming. At present, a law which enforces sharing of live sports broadcast feeds of national importance with Prasar Bharti limits it to terrestrial and DTH networks.

This judgment has significant implications, especially for Disney-owned STAR India, which relies on live-streaming sports — especially cricket — for signing up users for its Hotstar platform. Cricket is so important for Hotstar that Disney moved up its Disney+ launch in India to March 29 to coincide with the IPL season.

Adithya Modi, a “full time professional in the field of Sound Engineering and Music and is running a Home Theatre Consultancy firm”, had petitioned the Madras High Court via a public interest litigation, asking for the law to be changed to enable mandatory sharing of sports events with Prasar Bharti for online streaming.

What the government needs to consider when changing the policy: The court has said that the government will need to consider, among other things:

“The procedural mechanism for dissemination of transmission that may be dependent on contracts and other statutory regulations governing transmissions. It is not only the transmission of the contents of an information but also the mode there of that can fall under the regulatory control of the State. This would therefore necessarily involve an exercise to consider and weigh the essential nature of the legitimate expectation claimed by the petitioner relating to the right of access to information concerning sports and other entertainment activities.

“Apart from this, the Government will also have to apply the test of proportionality in order to allow any other modes of transmission through the internet services keeping in view the objects and reasons as enunciated in the 1990 Act read with the 2007 Act and ratio of the judgments in the cases noted above.”

What the petitioner wanted

  • Removal of a restriction imposed by Section 3(1) of the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007, which limited the mediums of re-transmission “sporting events of national importance” to terrestrial and DTH networks, declaring the section “null and void and unconstitutional”
  • Declaring that Prasar Bharti may re-transmit these events “on any of the mediums available on free-to-air basis”, including Prasar Bharti’s OTT platform
  • That Prasar Bharti may also re-transmit these events on other third party platforms which re-transmit the content on a free-to-air basis

Petitioner’s arguments

  • Negates right to free information: Restriction of transmission to just DTH and terrestrial networks “amounts to negating the right to free information of individuals through other modes, including Over-the-Top (OTT) platform”, and citizens with access to the Internet “are being denied access to sports events of national importance” because Section 3(1) restricts Prasar Bharti from adopting these.
  • Fundamental rights arguments:
    • Any restriction on Prasar Bharti which prevents it from transmitting the content free-to-air using any other medium, including third party platforms, impinges on the fundamental right of freedom to information as guaranteed under Article 19 (1)(a) of the Constitution.
    • Keeping in view that India has almost 600 million Internet subscribers, restricting streaming to only two modes “for no rational basis” amounts to violating the fundamental rights of the citizens of this country in having free access to information and entertainment relating to sports programmes, for which essentially the enactment came to be adopted by the Government.

Court’s views

  • Access to information was the intent: “Section 3 of the 2007 Act itself was enacted to ensure that no member of the citizenry is deprived of any such access on a free to air basis of sporting events of national importance, whether held in India or abroad. The access to such information was therefore ensured through the said statutory provision.
  • DTH and Terrestrial are still effective: “The modes of DTH and terrestrial broadcasting (as prescribed in Section 3 of the 2007 Act) were found to be suitable modes”, and “the said modes do not lose their efficacy by passage of time. The modes were valid then and do not become invalid on account of any new further technological developments“.
  • New technology not grounds for removal of old methods: “A future technology available, which is more easily accessible, may have other dimensions to be considered before being implanted in the Act itself and, therefore, it is not for the Court to strike down the existing modes on the ground that the other modern methods do not find place in the Act.”
  • Not a constitutional violation: “The prescribed modes limit transmission through particular methods but they do not prohibit or eliminate transmission by way of total exclusion for anybody to construe a constitutional violation. The method of transmission can be regulated by law and the restrictive methods do not violate a citizen’s right to free information.”

“The question of restriction of the rights of the citizen to free information, in our opinion, is neither prohibited nor restricted, in as much as the transmission continues through the modes as contained in Section 3 of the 2007 Act.

“In the absence of any material to infer that there is an absolute prohibition to access to such information or entertainment, it will not be appropriate for us to conclude on any valid principle of law that this amounts to impinging upon the right of freedom of expression, which includes the freedom to information, to have been violated in any way so asto give rise to a concern of violation of fundamental rights.”

  • Choice of mode of transmission may not be a fundamental right: “The right to freedom of expression, including access to information, is per se not absolute and is subject to restrictions as may be reasonably permissible under law and, therefore, particular choices of modes of transmission may by itself be not a fundamental right.”