HC stays India News ratings suspension; BARC hints at continuing crusade

MUMBAI: Describing the suspension of India News ratings by BARC(Broadcast Audience Research Council India) as ‘arbitrary and illegal’ by an order dated 6 December, 2016, the Bombay High Court stayed the suspension of BARC ratings of India News. The court has stated that the suspension and subsequent communication to all the subscribers has been prima-facie seen as a reputation maligning action, a press release from India News stated.

Earlier, BARC had temporarily suspended ‘India News’ ratings for a period of four weeks. In a statement, following the court order India News CEO Varun Kohli said, “India News is a credible news channel in the broadcasting business in the country and has grown consistently in the last four years both in the times of BARC ratings and TAM ratings, the predecessor of BARC. As a news channel, we uphold strong journalistic values and have established ourselves as a trustworthy and responsible media house in the country and have enjoyed unconditional support from all the stakeholders over the years. We are very confident that all the stakeholders and our well-wishers will continue to support us as they have done till now and we wish to work more closely with one and all.”

Reacting to the judgement, BARC India CEO Partho Dasgupta said: "The honourable court has given an ad-interim order and we have no comment as the matter is still sub judice. We are confident about what we have done. We will continue to act as per our board and government guidelines, with the objective of providing the Indian broadcast industry with an accurate, robust and reliable television audience measurement system."

Iqbal Chagla, Senior Advocate, along with Sharan]agtiani, Subhashjha, Siddharth Bambha, Shyam D. Nandan, and  Yash Wardhan   Tiwari, instructed by M/s. Law Global, appeared for the plaintiff (India News). Dinyar Madon,  Senior Advocate, along with Yashesh Kamdar, Anand Desai, C. Mitra, Aneesha Jacob and Manasi Vyas, instructed by M/s. DSK Legal, appeared for the defendant (BARC India).

According to the judgement, the Plaintiffs have also taken out Notice of Motion seeking interim stay with regard to the operation, execution, implementation and/or  effect of the Order of Suspension dated 24 November, 2016.

The plaintiffs have further prayed that the data and ratings  it is entitled to receive in terms of the End User License Agreement (EULA) dated   24 April, 2015, executed   by and between the  plaintiff and  the defendant, be made available to the plaintiffs. The present application is made by the Plaintiff for urgent ad-interim reliefs, according to the judgement.

The defendant had issued an email dated 24 November, 2016, addressed to all the subscribers of the defendant's services, inter alia, stating that the ratings of the said channel  had been suspended  for a period of four weeks for 'suspected mala fide practices.' The defendant has also released the information regarding the suspension to the media as well. The defendant  had noted the abnormal and unjustified  high TRPs   of the plaintiff's channel during the period of week 35-2016 to  44- 2016.  However, the defendant had not earlier disclosed the spiked TRP to the plaintiff, in order to prevent the channel from misusing the said data/TRP   to increase its revenue  with the advertisers.

Dinyar Madon appearing for the defendant (BARC India) laid emphasis on the graphs produced before the court in support of the defendant's case, that the same reveals the abnormal and unjustified high TRP during the period of Week 35 to Week 44. When the court pointed out to Madon that during Week 35 to Week 44 too, there does not appear to be a constant rise in the TRPs, but during certain weeks there appears to be a decline, Madon stated that, though the same is true, he is unable to explain the same. This court therefore observed that  if that be so,  there is all the more reason that the 'conclusive evidence available with the 'defendant' ought to have been provided to the plaintiff at the time of issuing the show-cause notice to the plaintiff which till date is not provided.

Initially, Madon stated on instructions that he is willing to show the evidence to the court, and later agreed to provide the same to the plaintiff. However, this offer is made not only after Chagla (Iqbal Chagla, senior advocate, appearing for the plaintiff - India News) concluded his arguments but even after Madon concluded making his submissions.  

At that stage, Madon sought to rely upon an unsigned copy of a report of an inquiry with a farmer in U.P., who is stated to have told representatives of the defendant that his mother was approached by representatives of the plaintiff and bribed Rs. 500/- to watch their channel. This, incident is alleged to have taken place in January 2016. In my opinion, for the reasons stated above, the defendant will have to furnish such proof to the plaintiff in terms of the Agreement or in any event to place their conclusive evidence/proof on Affidavit to enable the plaintiff to examine and deal with the same which can be done at the stage of the hearing of the Motion. On the face of it, even if such a report is considered, it raises many queries and the plaintiff is entitled to deal with it.

In the circumstances the court was prima facie satisfied that the order of suspension issued by the defendant is arbitrary and illegal, without following the procedure prescribed in clause 7 (e) of the Agreement. Though the defendant claimed that 'conclusive evidence' was available with the defendant, the same was not provided to the plaintiff depriving them the opportunity to deal with the same. Instead, without providing any evidence to the plaintiff, the defendant has not only suspended the ratings of the defendant's channel but has immediately forwarded e- mails to their subscribers condemning the plaintiff of 'suspected mala fide practices' thereby, prima facie, maligning their reputation.  The balance of convenience is overwhelmingly in favour of the plaintiff and against the defendant.

In the circumstances, the court passed the following ad-interim order:

The suspension order dated 24 November, 2016 is stayed and the defendant is restrained from acting upon and/or implementing the same. Needless to add that if at the stage of the hearing of the Notice of Motion, the court holds that the defendant has been able to prima facie establish the breach on the part of the plaintiff, the plaintiff will have to undergo the balance suspension period stayed by this order. There shall be no order as to costs.

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