Times Network issues legal notice to BARC; seeks Rs 431 cr damages, refund of licence fees

Times Network has issued a legal notice to the Broadcast Audience Research Council (BARC) for illegal and fraudulent viewership manipulation and tampering of Television Audience Measurement and Television Rating Points (TRP), particularly of its English news channel Times Now by BARC.

In the notice issued, Times Network pointed out that BARC being the only rating agency in India on a commercial basis at present, enjoys a complete monopoly, and hence, is required to function under the Policy Guidelines for Television Rating Agencies dated 16.01.2014 of the Ministry of Information & Broadcasting.

Times Network stated that “this Notice has been addressed to BARC and through BARC, its various officials and members of the management and/Board of BARC, who are/were in control of and responsible for its day-to-day affairs and who were/are directly and indirectly involved in fraudulent and dishonest activities in relation to the conduct, commission and operation of BARC’s business”.

BCCL further stated that the subject matter of their Notice not only concerns corrupt manipulations and rigging of TRP/Viewership Data in lieu of receipt of illegal gratification from particular Channel(s), but also reveals a larger, deep rooted conspiracy to fraudulently and dishonestly inflate the valuation and advertisement revenues of the beneficiary channel(s)/ subscriber(s). Times Network alleged that BARC, in connivance with the beneficiary channel(s)/ subscriber(s), has perpetrated a systematic fraud to deceive and dishonestly induce its clients, advertisers, viewers, stakeholders and investors “into believing that the beneficiary channel is the most watched English News TV channel in the country, whereas in reality as per genuine data available with BARC, the most watched English News TV channel was that of Times Now”.

Times Network referred to a press conference conducted by the Mumbai Police Commissioner on or about 08.10.2020, which revealed that a First Information Report (FIR) had been registered against various broadcasters, who were involved in rigging and manipulation of TRPs, which is controlled and generated solely by BARC. “From the press conference, it was further revealed that the said FIR was registered at the instance of Hansa Research Group Pvt. Ltd., which is the service provider of BARC for monitoring the BAR-O-Meters installed for measuring TRP at the BARC’s selective panel homes.”

Following this, on or about 15.10.2020, BARC took a unilateral decision of suspension of reporting of TRPs in respect of News channels, while the reporting in respect of non-news genre continued.

Times Network further mentioned another press conference held by the Joint Commissioner of Mumbai Police (Crime) on 25.12.2020, on basis of the Forensic Audit Report of July 2020, furnished by BARC, which revealed that the TV ratings agency had conducted a forensic audit in the month of July 2020, which revealed that the TRPs of various channels were manipulated, rigged, tampered and at times pre-decided by the erstwhile top management of BARC.

Times Network added that the forensic report further revealed that TRPs of Times Now, “a leading English News Genre channel ranked as the No. 1 channel till May 2017 in its genre, had been, suspiciously, reduced to the second position in a fraudulent/ illegal manner, with a view to make another, newly launched English News Channel as the No. 1 channel”.

It was also mentioned that Times Network’s request for the Forensic Audit Report of July 2020 and the actual viewership data of Times Now from 2016-2019 was rejected by BARC. Thereafter, Times Network was “constrained to obtain certified copies of the proceedings filed in the court of the Ld. Addl. Chief Metropolitan Magistrate, 37th Court, Esplanade Mumbai (“Ld. ACMM”) in C.C. NO. 484/PW/2020 (State of Maharashtra v. Vishal Ved Bhandari & Ors.) (the “charge-sheet”) pursuant to the investigation of the Mumbai Police, which includes the Internal Investigation Report, i.e. Report of Digital Forensics Services dated 24.07.2020 submitted to BARC by Acquisory Risk Consulting Pvt. Ltd., the Forensic Audit Report dated 01.12.2020 submitted to Crime Branch, Mumbai Police by M/s. Sarath & Associates”, the Notice stated.

Times Network affirmed that as per BARC’s own viewership data spanning 44 weeks (from Week 24 of 2017 till Week 11 of 2018), submitted to the Mumbai Police vide its letter dated 22.12.2020, Times Now was clearly No. 1 and that “its viewership was manipulated, fudged, reduced by you (BARC), for giving undue benefit to a newly launched undeserving competitor channel in 2017”. Times Network presented a comparative table of average numbers of the said 44 weeks to prove the viewership malpractices committed by BARC. It added that “the purported “Outlier Policy” has been blatantly abused by BARC to deliberately and fraudulently reduce the weekly viewership impressions of Times Now week after week with the sole intent of bringing its numbers below the said newly launched beneficiary Channel”.

Referring to the findings of the Forensic Report furnished by Acquisory Risk Consulting on 24.07.2020 to BARC, Times Network in its Notice stated that “the evidence showed manipulation of ratings and violation of the Code of Ethics in 2016 to 2019. The following people were involved:

Romil Ramgarhia (RR) – COO

Venkat Sujit Samrat (VSS) – Head of Products/South

Rushabh Mehta (RM) – Head of West

Partho Dasgupta (PDG) – Ex CEO, evidence (data and verbal) implicates in all incidents.

Pekham Basu – Vice President, Strategy

Manashi Kumar – Chief People Officer & Strategy”.

While alleging that BARC had taken every action/step to continuously and deliberately reduce Times Now’s TRP numbers for extending help to the other competing channel launched in 2017, Times Network mentioned about the internal email exchanges of BARC officials, supported and corroborated by WhatsApp chats with the employees of the said newly launched channel.

Times Network further said that the manipulation and fudging of Times Now’s TRP data has negatively affected its revenue, “including advertising revenues and as a result of the same, the total revenue loss caused is Rs 431 crore. In addition to the above, Times Now has suffered significant loss of reputation, goodwill, brand value and loss of future profits which it is in the process of calculating, the Notice added. “Furthermore, our Clients are entitled to the refund of the entire License Fee paid to BARC till date, amounting to Rs 21.83 crore, along with interest thereon at the rate of 18% p.a. for the reason that no truthful viewership data was provided by BARC to our Clients for years at length, resulting in outright cheating caused to our Clients,” MZM Legal, the legal representative of Times Network , stated in the Notice.

Times Network’s legal Notice stated that not only is BARC liable for civil action to be initiated against it, but it is also “squarely liable to be prosecuted for serious cognizable criminal offences under sections 420 (Cheating and dishonestly inducing delivery of property), 406 (Punishment for criminal breach of trust), 409 (Criminal breach of trust by public servant, or by banker, merchant or agent), 465 (Punishment for forgery), 467 (Forgery of valuable security, will, etc.), 468 (Forgery for purpose of cheating), 471 (Using as genuine a forged document or electronic record), 201 (Causing disappearance of evidence of offence, or giving false information to screen offender), 204 (Destruction of document or electronic record to prevent its production as evidence), 212 (Harbouring Offender), 120(B) (Punishment of criminal conspiracy) and 34 (Common Intention) of the Indian Penal Code, 1860.”

Times Network further said that the License Fee charged by BARC and the salaries, remuneration, benefits (direct or indirect) availed by its directors/ KMP/ officials from BARC “constitute proceeds of crime (derived by committing the above stated scheduled offences) as the same have been projected as untainted and as such are liable to investigation and attachment by the Directorate of Enforcement under the Prevention of Money Laundering Act, 2002”. It also called for investigation by the Serious Fraud Investigation Office for offences under the Companies Act and by Competition Commission of India “for abuse of the significant market power enjoyed by BARC due to its monopolistic existence”.

In the notice issued, Times Network has asked BARC to comply with the following:

• Compensate Times Network a cumulative sum of damages of Rs 431 crore plus license fees of Rs 21.83 crore with interest @ 18% p.a.;
• Release a Press Statement on BARC’s website to immediately clarify that as per the ratings agency’s own viewership data and records, Times Now was the No. 1 channel and undisputed leader in the English News Genre from 2017-2019;
• Further, publicise and publish at BARC’s own cost, the above press statement in the top five English and Hindi News channels of the country, the widest circulating national English news daily newspaper of the country and the widest circulating regional newspaper of each state;
• Publish the Acquisory Risk Consulting’s forensic audit report dated 24.07.2020, on BARC’s website in compliance of applicable Codes and Guidelines;
• Basis the forensic audit report dated 24.07.2020 and the charge-sheet, initiate Disciplinary Action against the errant broadcasters/ channels and BARC officials who are/were involved in the fraudulent activities and impose appropriate penalties, including cancellation of the End User License Agreements (EULA) of the errant subscribers.

The Notice calls upon BARC to comply with the above-mentioned terms within seven days from the date of receipt of the Notice, failing which Times Network will adopt appropriate criminal as well as civil action against BARC.