Data Broadcasting International Ltd & Anor R (on the application of) v The Office of Communications

A statutory broadcasting licence is a public law instrument, not a contract, where it is issued under a comprehensive statutory scheme and authorises conduct that would otherwise be unlawful. A regulator may vary the licensed area without consent, even where the practical effect is a substantial reduction in the service available, provided that the licence period remains unchanged. Additional services dependent on analogue spare capacity cannot continue where the underlying signal and frequency assignment have ceased. Human-rights protection does not preserve an expectation of continued activity where the licence permits lawful variation.

The claimants held commercial additional services licences under the Broadcasting Act 1990. Their services used spare capacity in analogue Channel 3 and Channel 4 signals. Following the government’s phased digital switchover programme, the analogue signals and related frequency assignments were withdrawn region by region. Ofcom varied the licensed areas accordingly, alternatively purporting to revoke the licences in stages.

The claimants sought judicial review, a declaration, and damages. They argued that the changes substantially terminated the licences and therefore varied the licence period, requiring consent under section 3(4)(a) of the Act and condition 22(a). They also argued that the licences were contracts and that the changes unlawfully interfered with possessions protected by Article 1 of the First Protocol.

1. The claim was dismissed. The claimants were not entitled to a declaration or damages.
2. Section 3(4) of the Broadcasting Act 1990, reflected in condition 22, distinguishes between the licence period and the licensed area. The licences expressly contemplate that the licensed area may be varied. The decisions changed the licensed area, while the ten-year licence periods remained unchanged. Consent was therefore unnecessary under condition 22(a); the variations fell within condition 22(b).
3. The commercial effect of the variations did not alter their legal character. Additional services were dependent on spare capacity in an analogue television signal. Once the analogue signal and the relevant frequency assignments were withdrawn, the spare capacity ceased to exist. The variations avoided leaving the claimants subject to an impossible obligation to provide services where transmission was no longer possible.
4. The power to revoke under condition 28(3)(h) did not authorise partial, region-by-region revocation. It did, however, confirm that continuation of the licences was contingent on the spectrum remaining available. Once the relevant frequencies had been revoked nationally, the condition could support revocation of the licences as a whole.
5. The licences were public law instruments issued under a comprehensive statutory scheme. They authorised otherwise unlawful activity and imposed obligations backed by statutory penalties and revocation. The renewal process and contractual language did not establish an intention to create private contractual relations. The claimants therefore had no contractual damages claim.
6. The licences and associated economic interests were possessions for Article 1 of the First Protocol. There was nevertheless no unlawful interference: Ofcom acted within the statutory scheme and the licence conditions. The provision did not protect an expectation of continued activity where the licence itself permitted lawful variation. Any interference was also justified and proportionate.