Warner Music UK Limited & Anor v Tunein Inc
[2023] EWHC 2875 (Ch)
Radiocentre Limited, R (on the application of) v Office of Communications
10 August 2023
[2023] EWHC 1977 (Admin)
High Court
A radio company sued because the BBC launched a new online radio station without following all the rules. The judge said the BBC's new station is just part of their existing online service, so the rules didn't apply, and dismissed the case.
Key Facts
- •The BBC launched Radio 1 Dance (R1D), an online-only dance music service on BBC Sounds.
- •Radiocentre Limited (Claimant), representing commercial radio, challenged Ofcom's decision not to require a Public Interest Test (PIT) for R1D's launch.
- •R1D is only accessible online via the BBC Sounds app and website, not through traditional broadcast methods (DAB, FM, etc.).
- •The Claimant argued R1D is a new UK Public Service (UKPS) requiring a PIT due to its 'radio-like' features and potential impact on competition.
- •Ofcom and the BBC maintained R1D is not a new UKPS, falling under the existing BBC Online service, and its impact on competition was insignificant.
Legal Principles
Interpretation of Royal Charters should consider the document's meaning to a reasonable reader with knowledge of the factual background, purpose, and the purpose of the incorporated body.
R (English Bridge Union Ltd) v English Sports Council [2016] 1 WLR 957, [32]
The BBC may carry out an activity as a change to an existing UKPS or as a new UKPS, provided the activity is aimed primarily at UK users and involves output supplied via television, radio, online, or similar services.
BBC Charter Article 7 and Framework Agreement Clause 7
A material change to UKPSs requires a PIT if it involves a new UKPS or may significantly impact fair competition.
Framework Agreement Clause 7(7)
Ofcom's duty to make inquiries before making a decision.
Secretary of State for Education and Science v Tameside MBC [1977] AC 1014, 1065
Judicial review for error of fact requires showing: a mistake of established, objectively verifiable fact; the claimant's non-responsibility for the mistake; and the mistake's material role in the decision.
R (Institute of Chartered Accountants in England and Wales) v Lord Chancellor [2019] EWHC 461 (Admin), [77]
Outcomes
Claim dismissed.
R1D, being online-only, is considered part of the existing BBC Online service, not a new UKPS. Ofcom's assessment of insignificant competitive impact was upheld. No procedural unfairness or material errors of fact were found.
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