Ofcom's Public Service Publisher: Version 2.0?

At the Westminster Media Forum's bash Wednesday the topic was Public Service Content. The event was timed to coincide with deliberations of the Culture Select Committee Inquiry on the same topic. But whilst the Parliamentary Committee are taking an admirably broad approach to the topic - dealing with Channel Four's funding, public service competition to the BBC, and Ofcom's proposed Public Service Publisher (PSP) - the focus here was on just one thing: the PSP.

Events discussing the PSP have two things in common. One is the likelihood that there is at least one person wandering about waiting for mention of portable games consoles, and the other is a vague 'what is all this about anyway and why are we all talking about it' atmosphere. The answer is a bit complicated. The reason that the PSP term was coined, and that the first sketched proposals were discussed in a seminar organised by Ofcom in 2005, is that Ofcom's Public Service Television review identified enduring 'market failures' in provision of public service content on television. The PSP, widely seen as Ed Richards personal brainchild, is an outline for a new public service intervention to plug that gap. The only thing clear about it is that it is not the product of spectrum scarcity nor is it delivered through a licensing scheme. It is in that sense genuinely a new era intervention.

This led to what we now call PSP version 1.0: which was basically a proposal for contestible funding for commissioning of public service AV content as far as I could see, content that would be provided to broadcasters among others. At the time, as Steve Hewlett reminded us Wednesday, the £300 million price tag for the PSP was seen as roughly equivalent to the value of below the radar subsidies that broadcasters enjoy in the form of free or cheap spectrum, which will probably dissappear with switchover. The PSP version 2.0 evident in the recent Chitty/Lilley paper for Ofcom and at this event is a different beast. It is part commissioning fund, part portal, and does not seem to be about broadcasting any more. And it will be a lot cheaper.

The PSP seems to be serving extremely well what I think is its really valuable function: to stimulate real debate about what is the appropriate level and form of public subsidy in the AV system of the future. (As a contrast to the carve-up which often passes for debate in this sector). The problem is, where does Version 2.0 leave Ofcom's original excuse for putting the PSP on the agenda? Apparently it is sections 3 and 234 of the Communications Act (about ensuring effective delivery of high quality radio and television PSB) that justify Ofcom's pursuing this agenda. But if version 2.0 is really a portal for museums and user generated content, they may have to rummage in those hudreds of duties for a better excuse. Ofcom is a creature of statute after all. And if there are no excuses in there? maybe, as we enter the new legislative cycle, we should look at those statutes again and give them one.

Volte-face on FoI reform?

The Government has announced an extension to its consultation on the proposed reform to the freedom of information regime. This has been read by some as a welcome capitulation to the demands of the press and media lobby that has fought the changes (1,2), and comes only days after Lord Falconer delivered a strong defence of the Government's erstwhile position. The new consultation invites comment on the general principle underlying the proposed changes, whereas consultees were originally asked to comment only on technical details of how the changes would be instituted. Notably, the 12 week consultation period will run right up to the expected date of handing over of the Prime Ministership from Tony Blair to Gordon Brown. This is significant, as the latter is considered by some to be more accepting of the public's 'right to know'.

Press gang? Middleton makes privacy / harassment complaint to the PCC

In what will be a significant test for the scheme of self-regulation of the Press, Kate Middleton - the girlfriend of Prince William - has made a complaint to the PCC regarding the actions of the Daily Mirror (1,2,3,4). The paper had published photographs, allegedly taken by paparazzi, of Ms Middleton on her way to work. The PCC Chairman - Sir Christopher Meyer - had brokered a deal with News International (Sun / News of the World / The Times / Sunday Times) and Hello! magazine which has seen them forego the use of paparazzi shots. Middleton's lawyers have since been active in sending warning letters to other publishers.

The complaint is based upon clause 4 of the Editors' Code (interestingly, there has been no reference to clause 3 on privacy), which reads: i) journalists must not engage in intimidation, harassment or persistent pursuit; ii) they must not persist in questioning, telephoning, pursuing or photographing individuals once asked to desist; nor remain on their property when asked to leave and must not follow them, and iii) editors must ensure these principles are observed by those working for them and take care not to use non-compliant material from other sources. These stipulations can be overridden if the respondent is able to demonstrate a public interest motivating its actions.

The first question that must be answered by the PCC, or any other regulator, is whether there is any harm being caused here. While it may seem obvious that there is, there are different views on this. For example, in his recent book Privacy and the Press, Joshua Rozenburg opined that: 'if people really want to see pictures of a... princess riding a horse or doing the shopping, is that really such a bad thing? Sure, it doesn’t teach us anything about politics or the price of bread, but what harm does it do? Its just what happens when you’re a princess.' I'd be surprised if the PCC took this line, not least because Christopher Meyer said recently that 'she should be able to get in her car and drive to work without being harassed', and that her treatment has been 'grotesque'.

Its been suggested that Middleton has much to lose if the ruling does not go her way. It might be replied that there is more at stake for the PCC. Should it not rule in her favour, Middleton has the option of going to law (conceivably using either the Protection from Harassment Act 1997, or the new-fangled breach of confidence / privacy tort) and presumably this is the final part of her lawyers' strategy of escalation in the face of Press intransigence. In that case, however, (and given the lingering public memory of the dreadful treatment of Princess Diana) the PCC may find itself standing on the steps outside, finally debarred from the Last Chance Saloon.

BBC impartiality on the Middle East: FoI case leans in favour of the PSB

The BBC appears to have won at least a partial victory in an appeal brought to prevent the release of an internal report under the Freedom of Information regime (1,2). In December 2005, the Information Commissioner ruled in favour of the BBC and concluded that the report need not be released. However, this decision was overturned (1,2) by the Information Tribunal (see here). The BBC has now gone to the High Court to prevent disclosure.

The report, written in 2004 by Malcolm Balen, reviewed the BBC’s coverage of the Middle East since 2000. It was always intended to be an internal document only. An independent study of the BBC’s coverage was also conducted – by a committee headed by Sir Quentin Thomas - and has since been published. This second report concluded that there was ‘little to suggest deliberate or systematic bias’, although it did list a series of ‘identifiable shortcomings’ (1,2). Members of the Jewish community, themselves upset by perceived bias against Israel in the BBC’s coverage, wished to assess whether the internal report was less sanguine (for a critique of the supposed impartiality of the BBC’s coverage in this area, and more generally, see the Biased BBC blog).

For those interested in the legal basis of the case, the starting point is to recognise that the BBC - and other PSBs - are subject to the Freedom of Information Act 2000 only 'in respect of information held for purposes other than those of journalism, art or literature' (Sch.1, Part VI). The BBC concluded that the Balen Report was held for purposes of journalism, and that it need not therefore be released. The Information Commissioner agreed. Clearly, the applicant - Mr Sugar - considered that it was more to do with setting the framework for journalism rather than journalism directly.

The current case has two prongs. First, there is a question over whether the Information Tribunal had any jurisdiction to hear the appeal from the decision of the Information Commissioner. This centres on whether the Commissioner's agreement with the BBC amounted to a 'decision' under section 50 of the Act (and was thereby subject to appeal to the Tribunal). It is on this point that Mr Justice Davis - in the High Court yesterday - indicated that he would find in favour of the BBC. There remains the second issue, however: whether Mr Sugar can persuade the court that it should consider whether the Information Commissioner acted illegally, irrationally or procedurally improperly in coming to the conclusion he reached. We still don't know what view the judge has taken on this side of the case.

Incidentally, the BBC Trust is currently undertaking two reviews on the impartiality question: (1) impartiality in a changing world, and (2) impartiality in BBC coverage of business news.

My Westminster eForum Presentation

Having been informed by Westminster Forum Projects Limited that I am not permitted to distribute the transcript of last week's meeting (you can buy it for £65 if you want) in reparation for the loss of the promised transcript I attach links to my presentation, in which I own copyright, here is the text and the associated powerpoint slides.

A 'call to arms' for fair dealing reform

Eoin O'Dell of Trinity College Dublin has posted an excellent discussion of the growing imbalance between original rights-holders and subsequent users in copyright law. While the post also provides much useful background information, its focus is on the perceived need for reform of the fair dealing exception to copyright in Irish law, and by extension on a proposed EU Fair Use Directive. He calls for a thoroughgoing re-examination of the current balance between reward and innovation, and offers a persuasive means of achieving it.

More generally, the cearta.ie blog is a very useful kick-off point for comment on current developments in Irish media law and policy (among a range of other things).

Westminster eForum on Net Neutrality

As I mentioned earlier I attended the Westminster eForum on Net Neutrality last week. At the time I promised to make the proceedings available when they were published and [Link Removed at Request of Westminster Forum Projects Limited]

The Future is now - or maybe not yet: the impact of social-networking sites

Two more very interesting articles in the MediaGuardian - from Emily Bell and Anthony Lilley - on the impact of social-networking sites (esp. YouTube) on economic models used by the mainstream media and the contradictory but understandable thinking behind the recent moves by NBC and News Corporation (to make their content freely available online) and Viacom (to sue Google for making its content freely available).

Puttnam weighs in on BBC Jam decision

Lord Puttnam has authored an interesting piece in the MediaGuardian on the decision of the BBC Trust to suspend BBC Jam, the online educational service offered by the BBC. He decries the deference shown - by the Trust and the EC Commission - to perceived commercial interests, and concludes that "the early signs are that the judgment calls of the Trust may become neurotically weighted toward the commercial impacts, at the expense of true public interest".

Certainly, in the Trust's decision there was a presumption that the role being performed by the BBC was one that would - or at least may - be performed equally well by the private sector. The question was whether, nevertheless, it should be performed by the BBC as part of its public service remit. I'd imagine that the Trust's problem was that it hadn't conducted an assessment of the public value to be gleaned from market intervention of this type, and therefore couldn't simply explain to the EC Commission that the public service requirement in the Article 86(2) EC 'get out of jail card' was satisfied. Facing the risk that the BBC's activities may be found subsequently to have involved reliance on unlawful state aid, the Trust adopted a safety-first approach. It needn't have done this, but it is the precautionary approach. That said, it does have the ramifications outlined in Puttnam's article and my last post on this subject: loss of provision (at least in the short term), and potential harm to suppliers of content.

At a deeper level, this comment speaks to an important development that is encapsulated within the new schemes of control introduced with the establishment of the BBC Trust. The site of debate regarding the extent of the public service remit has been both depoliticised and particularised, in that decisions will henceforth be taken on specific proposals internally by the Trust (albeit after three separate consultation exercises) . The performance of this task by the Trust must be closely scrutinised, and - irrespective of one's view on Puttnams's complaint - he must be applauded for paying attention.

Out of sight, out of mind? Britney secures injunction to prevent more leaks

Another interesting snippet from The Times today related the fact that Britnet Spears's lawyers (Schillings) have been awarded an injunction to prevent the publication of revelations regarding her time in rehab (for more, see here). The injunction is against 'John Doe', the person or persons who has/have been leaking information, but having been communicated to the media in the UK will also cover them.

Schillings are also seeking details of the identity of informants from newspapers that have already published material relating to the singer's treatment. She is said to reserve the right and indeed intends to challenge false allegations which have already been published about her time in rehabilitation. All of this begs three questions:
- first, what are the media playing at? After Campbell v MGN and related cases, it must be as clear as day that reporting of this nature is highly susceptible to legal challenge. Are they simply pushing the boat as far as possible in the expectation that damages will not exceed the financial benefit of carying the stories? What of the expectation that such earlier cases spelt the end for intrusion on privacy through unauthorised / kiss and tell journalism?
- secondly, have the courts got the balance right between privacy protection and freedom of the press (i) in the granting of injunctions (ii) in the substantive law?
- thirdly, what is up with Ms Spears?!

Subverting the ban on political advertising?

The Times has an interesting comment today on the possibilities of using online video-sharing sites to subvert the ban on party political and social cause advertising on the broadcast media (ss319 and 321, Communications Act 2003). The ban was challenged unsuccessfully in the High Court last year by Animal Defenders International (ADI). The comment suggests that a ban on one medium only has become obsolete - and hence, to my mind at least, indefensible (and this allied to the fact that it is simply unnecessary). The case was to be appealed direct to the House of Lords, but I'm not sure if this is happening.

Interestingly, after ADI uploaded its campaign videos (1,2,3) to YouTube in February, it quickly moved into the top 16 Most Viewed Directors’ videos on the website.

Bring out the big guns: Ofcom launches inquiry into premium lines

Ofcom finally ceded to demands yesterday, and announced that it is to hold an inquiry into the use of premium rate phonelines by broadcasters (1,2,3). Until now, it had seemed that Ofcom was happy to allow Icstis to hold the fort, but perhaps this week's rhetorical intervention by Tessa Jowell prompted a rethink.

Meanwhile, Ofcom also published its first annual review of the state of public service broadcasting. At first glance, it offers few surprises: the BBC is considered very strong, ITV is valued for its qulaity drama and its regionally programming, Ch4 is engaging and challenging, Northerners prefer Corrie and Southeners Eastenders, while kids are simply watching less (1,2).

French case on publishing of Danish 'anti-Islamic' cartoons

The prosecution in France of the editor of the weekly magazine, Charlie Hebdo, that published the Jyllands-Posten cartoons covering various religious figures has ended in his acquittal. Its by no means the first time the magazine has been involved in legal dispute, and this may not be the end of this affair as at least one of the plaintiffs intends to appeal.

While it may be an interim conclusion only, and not eliding the fact that there must be a balance struck between freedom of expression and the 'right' not to be offended, this has to be seen as an apposite victory in a modern democratic society. This is notwithstanding the fact that some viewed the secondary publication as being specifically intended to 'provoke' Muslim 'humiliation'.

The perceived need for balance prompted the EC Commissioner for Justice, Freedom and Security to call for a pan-European Code of Practice for the reporting of religious matters. For more on the interests in freedom of expression at issue in cases of this nature, see English PEN.

Home Office Review of PACE

The Home Office has launched a wide-ranging review of policing powers, including those that permit the search and seize of journalistic material (including that held in confidence).

Sections 9-14 of the Police and Criminal Evidence Act detail a special procedure to be followed by police who want access to journalistic material. A judge has to be satisfied that an order should be made, and will consider matters such as whether the material would be admissible as evidence at a trial, would be of considerable value to the police investigation, and whether its disclosure would be in the public interest. These requirements have been interpreted by the courts so as to facilitate the police, arguably to the detriment of journalistic integrity.

The review is being seen by industry bodies as an opportunity to seek the revision / clarification of the current rules.

Falconer on freedom of information and access to the family courts

In a wide-ranging speech delivered at Gray's Inn last night (and trailed yesterday - 1,2), Lord Falconer offered a review of the government's position on access to government-held information. This came in the context of the growing campaign (1,2,3) against plans to limit the access of journalists and other researchers (in particular) to the regime introduced in January 2005 under the Freedom of Information Act 2000.

Some random pickings from what he had to say, were the following:

- the general sense that the Government was to be congratulated for its introduction of a presumptive right of access to information. Two cheers only, I'm afraid - the government seems to think that percussive reiteration of this general point will cause people to overlook the limitations of the Act (I've traced the ups and (mostly) downs of the introduction of the FoI regime in previous writing that I'll happily make available to anyone who wants it)

- his derision for the aphorism that freedom of information is what oppositions talk about, and then forget when they are in power. Ironically, the first time I heard this phrase (or something like it) was as a first hand quotation from Jack Straw.

- the emphasis on the trope that the purpose of the FoI regime is to serve the public, not the Press, and the rehearsal of a series of standard stories setting out the purportedly facile nature of much of the usage of the Act by journalists. This is aimed directly at justifying the limitations proposed (1,2) on the access of journalists to the mechanism, and elides the important uses to which the Act has been put.

- the vacillation over whether to allow untrammelled media access to the family courts - on which he promised further imminent announcements.

The speech is certainly worth reading in full - see above. For further discussion of issues in this general area, see the UK Freedom of Information Blog.

Note on Channel 4

Also from MediaGuardian, an interesting comment by Stuart Jeffries on the (perceived) failure of Ch4 to meet its public service remit in favour of advert-attracting lowest common denominator programming.

The most ill-conceived ad campaign

In a vivid illustration of the power of community regulation the filmaker Lionsgate has been forced to pull 30 billboard adverts in LA and over 1400 cab-based ads in NY after a public outcry. The offensive ads were for an upcoming horror film 'Captivity' starring Elisha Cuthbert and featured four panels - 'Abduction'; 'Confinement'; 'Torture'; and 'Termination'. Those possessed of a macbre interest may find details of the panels from the original Hollywood Reporter story or can see the images on Cinema Blend (may cause offence).

While you have the choice whether the click on the above link, one billboard was placed opposite the Palms Middle School in LA where one bright student, described it as 'a graphic, nasty billboard' (see the LA Times Report). Community outcry has seen Lionsgate agree to remove all billboards and cab-ads but one wonders about the old ad-world adage...there is no such thing as bad publicity. Here's hoping the film bombs.

Of Cats and Pigeons...

MediaGuardian is reporting that Clive Goodman, he of the Royal phone hacking scandal, is planning to sue News of the World for unfair dismissal. He was sacked while serving the prison sentence he received after pleading guilty. Might this have something to do with the truth that was quickly shuffled under the carpet regarding the prevalence of illicit hacking practices and the complicity of employers in such activities?

Self-regulation at the BBC...

Tuesday saw the suspension (and see here and here) by the newly created BBC Trust of BBC Jam, a free interactive online learning service for 5 to 16 year olds reflecting the school curricula in England, Scotland, Wales and Northern Ireland. The service had been first launched in January 2006 and was being gradually rolled out to cover wider areas of the curriculum, but has been the focus of complaint from private providers since its inception. While the service received clearance from the European Commission in 2003, it had been alleged that it had strayed beyond its permitted boundaries.

The Trust has asked the BBC to bring forward new proposals for its consideration (and that of Ofcom) under the new Public Value Test (recently deployed for the first time in respect of the Beeb's proposed on-demand services). So why pull the site in the meantime? Members of the Trust, speaking this week on BBC Radio 4's You and Yours, 'protested loudly' that this wasn't simply part of an effort to mark out the independence of the Trust from the BBC.

To be fair, perhaps it was just safety first, and born of a desire to prevent the BBC from having to pay back the costs of running the impugned elements of the service if it was found to be unlawful state aid. New complaints had been made to the EC, and it had put pressure on the Government and the Trust to achieve some resolution rather than test the legality of the provision. Needless to say parents, presumably at least some kids (?!), and the BBC's content suppliers (1,2) aren't at all happy.

So have you called a TV phone in...?

The TV premium rate phone scandal continues to develop. 11,500 text votes for the Dancing on Ice final were not counted by network operator Vodaphone. The texts, meant to contribute to the Saturday night show, were not delivered until Monday morning. ITV have laughed off the incident claiming 'the extra texts would not have affected the result on the night - a win for former England rugby ace Kyran Bracken'.

Still it is amazing how often we are now hearing of these incidents on mainstream channels following the initial investigation of ITV Play, which has since gone off air. The BBC's D-G Mark Thompson has said the television industry must work to regain trust after the revelations surrounding the phone-in scandal (the Blue Peter one hit the BBC particularly badly). But it may all be too late for the industry to put its own house in order. In an interview in today's Times, Culture, Media and Sport Secretary Tessa Jowell said that she would wait to see what action was taken by the regulators Ofcom and Icstis and that if she felt that the regulators did not have sufficient authority to prevent exploitation of the public she would look at giving them more statutory powers.

Jowell ends by stating: 'We have a principle in this country of free-to-view television once you have paid your licence fee. So any activity that exploits people — which extracts from them more money than they intend to spend — I think has got to be clamped down on very hard.'

Glad I'm not in Michael Grade's, Mark Thompson's or Jane Lighting's shoes.

Westminster eForum on Net Neutrality

I spent yesterday morning at the Westminster eForum on Net Neutrality. There was a fascinating mix of participants. The dominant presence were the telcos, but there was also strong representation from content providers, regulators and civil society. What was most intersting though was that with nearly twenty speakers there was almost complete harmony in the message which was that the UK market for broadband access was healthy enough to allow for competition in the market to regulate net neutrality issues (at least in the short term) and that a UK equivalent of the proposed Dorgan-Snowe Bill was undesirable and unnecessary. The American speakers were almost universal in declaring the current US debate as hysteria and praising the more balanced European debate, while the Europeans argued that "regulated neutrality" went against the grain of an open network.

The proceedings should be published in a few days. When they come out I'll post them on the IT Law at the LSE website and put a link in here.

Pay-tv market investigation - the dead hand of Ofcom?

Yesterday Ofcom announced its intention to undertake a review of the operation of the Pay-tv market, and to refer the market on to the Competition Commission for a fuller investigation if this proves necessary. Its planning to focus on control over content, ownership of distribution platforms, retail subscriber bases and vertical integration. The legal powers on which it is acting were provided by the Enterprise Act 2002 (it is already conducting a review of wholesale digital television broadcasting platforms under Communications Act powers).

The move is being widely seen (1, 2, 3, 4) as a major problem for BSkyB - certainly it has been the primary focus for complaint from other operators (most notably Virgin, but also BT, Setanta and others). It may be that Ofcom and the Commission conclude that Sky must change its behaviour in some ways, but there are reasons for the company to be sanguine. First, there is the all important issue of market definition, and then the determination as to whether Sky holds significant market power/dominant position on any relevant market. Ultimately, is it competiting fairly or not? It is notable that the company's practices have been subject to review before, and that conditions have been imposed on how it supplies content to other platforms. These conditions have gradually been relaxed over time (since the mid-1990s) as markets have developed, so that only the provision of Sky's premium content is regulated. It would seem peculiar if the authorities concluded now that some retrenchment was required.

The big question today, however - the 'elephant in the room' or (as Emily Bell put it recently) the 'dinosaurs in the meteor storm' point - is what impact the emergence of new technologies, new economic models of content provision, and on-demand services will have on the entire sector.

MediaGuardian overview of Sky vs Virgin

MediaGuardian has published a quick Q&A re the BSkyB vs Virgin disputes - helpful as a swift intro for the uninitiated...

Viacom v YouTube (Google): money for old rope?

Much has been written already about the case being brought by Viacom in the hope of putting an end to alleged infringement of copyright tv shows etc on YouTube (and equivalent platforms by deterrent effect) (see here, and here, and here etc), and the general sense is that the case will boil down to interpretations of the safe harbour defence or fair dealing / use defence on one hand, opposed to the inducement of copyright infringement notion developed in Grokster on the other.

We've got to ask however whether there is really any plan to pursue this argument through to court. The threat is certainly a useful means of putting pressure on Google to 'sharpen up' its own oversight re uploading of content by users (rather than leaving the policing function to rights-holders). But more generally, the claim seems potentially baseless. Fine, Viacom will be losing eyeballs on its own commercial websites, but in the context of placement advertising within content the alleged extra 1.5bn downloads (?!) of programmes massively increases the value to advertisers of its in-show placements. 'Please stop!!, no please stop.....'

Subtle justifications for invasion of privacy?

I've read with interest the opposing outpourings of two-cents' worths regarding the latest drunken misdemeanours of Andrew Flintoff (England's star cricketer) in the Caribbean. While Ian Botham has sought to defend him, Joe Public and others seem to be more than a little disappointed.

On the point at issue - the likely influence on Flintoff's performance - I could hardly care less. I am reminded, though, of the insidious underbelly to the focus on the behaviour of 'role models' in the media-saturated society. When the Press effects an outcry at the private behaviour of sports stars, royalty, actors and other celebrities, we - the public - may be forgiven for getting caught up in the storm and overlooking the fact that, if truth be told, we often have absolutely no interest in what has or has not been said/done. If a celebrity sleeps with someone other than their partner, that's their lookout; if Prince Harry has a drink too many at a friend's party, well bottoms up. We are told that celebrities must uphold higher standards of behaviour because - well, why? When the Media make a song and dance, what they insist is that we have a right to know, and - more quietly but more importantly - that they have a right to sell us the content that tells the story. (When) Do we have a right to know?

Herein lies the continuing problem with recent decisions of the courts in both the defamation and privacy contexts (and inferences to be drawn from comments of the Information Commissioner on when it may be justifiable to break the law in acquiring copy). Everyone can agree that there is a distinction to be drawn between the 'public interest' on one hand, and matters that may be interesting to the public on the other, and that vapid tittle-tattle concerning footballers' wives and girlfriends falls on the wrong side of the distinction. What we don't know, despite judges' protestations that they can tell it when they see it, is quite how far the public interest runs.