Judge Throws Out Mackenzie's Case Against UK's RAJAR

20 December 2004

Kelvin MacKenzie, in his glory days the editor of Rupert Murdoch's best-selling UK tabloid The Sun, spend the weekend counting the cost of his unsuccessful attempt to bludgeon British radio audience measurement body RAJAR (Radio Joint Audience Research) into doing things his way.

Mackenzie, these days chief executive of The Wireless Group - a radio minnow owned in curiously low profile style by his mentor Murdoch - had campaigned long and loud for RAJAR's adoption of an electronic measurement system that produced more favourable listening data for TWG's output.

Having failed to persuade RAJAR (jointly owned by the BBC and the major commercial broadcasters) to his way of thinking, MacKenzie sought to impose it via a two day High Court hearing early in November. His primary argument was that RAJAR had abused its dominant position in rejecting his proposal.

The research body refuted this as 'fanciful and based on false facts' (a description some observers hold to be true of tabloid journalism in general). RAJAR's defence was accepted by Mr Justice Lloyd, whose judgment was made public on Friday.

He held that RAJAR's rejection of TWG's preferred measurement system was a "rational commercial approach, especially when the implications of a change to either [electronic device] would require a good deal of further discussion both with the supplier and with the industry, as well as the specification and placing of a new contract for the provision of the audience research."

Continued the judge: "[It] seems to me that the claimant faces two difficulties. First, the allegations it makes about the nature of the defendant's decision simply do not correspond with the facts … and do not address an essential part of the question which the defendant had to face, namely, if it was to favour an audiometer system, which of two should it choose. Secondly, when the true nature of the decision is considered … I find it impossible to see how that decision could be said to be an abuse of a dominant position, as lacking objective justification."

Mackenzie's case was duly struck out.

Said RAJAR managing director Sally de la Bedoyere: "Sadly and perversely this issue with TWG has been funded by the entire radio industry, including TWG, through the RAJAR subscriber fee ... now this judgment has been handed down, we can focus 100% of our attention, energies and resources on radio audience research."

Said the respective honchos of the BBC and the Commercial Radio Companies Association, Jenny Abramsky and Paul Brown: "RAJAR represents, skilfully and honestly, the interests of more than 300 UK radio stations. That their time and resources have been sidetracked by legal challenge in this way has been unfair to other subscribers. The whole industry must now move forward without delay in order to meet the timetable to a new research contract published by RAJAR in September 2004."

Said Kelvin MacKenzie: "!!*#~~**! it!"

Data sourced from multiple origins; additional content by WARC staff