2014 (6) TMI 190 - Commission - Law of Competition

Breach of section 3(3)(b) of the Competition Act 2002 - M/s. B.R. TV Mumbai was a producer of the TV serial Mahabharata and had entrusted the sole and exclusive rights to M/s. Magnum TV Serials to dub the Hindi version of the said serial in Bangla and for exploiting its Satellite Pay TV DTH IPTV Video Cable TV and Internet Rights till September 2016 - Informant was appointed sub-assignor by M/s. Magnum TV Serials and the said serial Mahabharata was dubbed in Bangla language by the Informant. - OP-4 Shri Sanjoy Das received a letter from OP-2 CTVN (the Appellant ) to stop the telecast of the above serial - It was also pointed out to OP-4 M/s. CTVN Plus that if the telecast is not stopped its channel will face non-cooperation - Whether the act and conduct of imposing restrictions on telecast of the said serial is in violation of provisions of the Act. Held that - Relevant market as held by majority order is too broad to be accepted. Nature of the Information does not show anything which could even be distinctly connected with the whole Film and Television Industry in the State of West Bengal . The Information is only against showing the dubbed serials on the television. It has no relation whatsoever with production distribution etc of any film or any other material on the TV channels. The controversy is very specific. While some channels were actually showing the other language serials dubbed in Bangla that precisely was being opposed. The relevant market is therefore the telecasting of the dubbed serials on the television in West Bengal . In this behalf the finding by the minority order appears to be more appropriate as compared to the majority order. There is no question of trading of any goods or provision of any services much less by the persons engaged in identical or similar trades or provision of services. These were protests raised by the Co-ordination Committee of which there were few members who were either technicians or artists and all that they were doing was protesting against the showing of the dubbed films/ TV serials. Now there had to be some evidence available to show that any such action limited or controlled the production supply markets technical development and investment or provision of services. There is no such evidence available. In fact because of the strikes or demonstration as the case may be the OP-4 CTVN Plus did not even stop showing the Mahabharata serial on its channel. Further OP-3 Channel-10 stopped showing the said serial on its channel on account of advise by leading actor Shri Mithun Chakraborty. Essentially section 3(3)(b) applies to the competitors. The action as contemplated in section 3 should therefore result in limiting or controlling the production supply by the competitors or should at least limit or control the market or the technical development or investment or provision of services. In so far as the competitors are concerned nothing of that sort has happened. In our opinion the decision by the majority order that the viewers were deprived of seeing dubbed Mahabharata serial on a TV channel is also faulty since OP-4 CTVN Plus never gave-in to the protests by the members of the Co-ordination Committee. The Co-ordination Committee was legitimately protesting and voicing their grievance for the benefit of their members. They may be under the wrong impression that showing of the dubbed TV serial would affect their prospects of getting further work but that by itself does not raise a competition issue. This is not a case where the production of the television serials or supply thereof has been affected. If at all the complaint could have been made only by a competitor. In our opinion therefore the CCI has committed an error in holding the Co-ordination Committee guilty of contravention of section 3(3)(b). - Decided in favour of Appellants.

Summary

Issues Involved:
1. Whether EIMPA and Co-ordination Committee imposed/attempted to impose restrictions on the telecast of the dubbed serial "Mahabharata".
2. Whether the act and conduct of imposing restrictions on the telecast of the said serial is in violation of the provisions of the Competition Act, 2002.

Issue-wise Detailed Analysis:

Issue 1: Imposition of Restrictions on Telecast of Dubbed Serial "Mahabharata"
The CCI found that both EIMPA and the Co-ordination Committee imposed restrictions on the telecast of the dubbed serial "Mahabharata". This conclusion was based on letters dated 18.02.2011 and subsequent communications, which included threats and agitations that led Channel-10 to stop the telecast of the serial. The CCI determined that these actions exerted undue pressure on the channels, thereby restricting the telecast of the dubbed serial.

Issue 2: Violation of Provisions of the Competition Act, 2002
The CCI held that the actions of EIMPA and the Co-ordination Committee were in contravention of Section 3(3)(b) of the Competition Act, 2002. The CCI reasoned that the conduct of these entities hindered competition by creating barriers to the entry of new content in the form of dubbed TV serials, thus harming consumers by depriving them of the dubbed serial. The CCI also concluded that the Co-ordination Committee, despite being a trade union, was not exempt from the purview of the Competition Act.

Minority Judgment Analysis:
The minority judgment, penned by Justice Dhingra, disagreed with the majority order. It argued that the relevant market was incorrectly identified by the DG as the "Film and Television industry of West Bengal", which was too broad. Instead, the relevant market should have been "broadcast of TV serials dubbed in Bangla language". The minority judgment also stated that the Co-ordination Committee's actions were more akin to trade union activities rather than economic pressures that would fall under Section 3 of the Competition Act. It concluded that the threats and protests by the Co-ordination Committee did not constitute an agreement limiting or controlling production, supply, or market, and thus did not violate Section 3(3)(b).

Conclusion:
The appeal succeeded, and the majority order was set aside in favor of the minority judgment. The minority judgment was confirmed, holding that the actions of the Co-ordination Committee did not constitute a violation of Section 3(3)(b) of the Competition Act, 2002. The judgment emphasized that the Co-ordination Committee's protests, although possibly based on a wrong perception, were legitimate trade union activities and did not amount to anti-competitive practices.