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Unfit for Purpose? Ofcom’s failure reveals its unsuitability as a regulator    

    

The BBC’s recent reporting in the wake of the Hamas attack on Israel and its hostage taking has caused widespread public concern. Here the lawyer, Clive Thorne, argues that, as recent cases show, Ofcom is not suitable for its purpose and that putting in place an effective appeal system should now be a priority.

The Chief Executive of Ofcom, Dame Melanie Dawes, herself a former Departmental Civil Servant, has been visiting the broadcasting studios to mark the coming into effect of the Online Safety Act (OSA) and Ofcom’s duties within that legislation. Unsurprisingly Dame Melanie was promoting the fact that Ofcom, at very considerable expense, is recruiting 300 new staff, in addition to its existing 100-strong staff, to perform its new role.

The predominant purpose of OSA is for Ofcom to govern a new regulatory regime to protect users from online harm resulting from user generated content. The intention is that Ofcom as regulator will focus on processes and systems rather than specific pieces of content.

Obligations on service providers caught by the provisions will include duties to conduct risk assessments, various safety duties, transparency, reporting and redress duties, duties to protect certain types of content /rights and various other obligations, for example, relating to fraudulent advertising.

Section 2 applies OSA to providers of user-to-user services and internet services, which allow content generated or unloaded or shared by a user to be encountered by another user.  It also applies to search services permitting internet users to search more than one website or data base and pornographic content services.

In performing these statutory duties Ofcom are entitled to utilize a large battery of supervisory powers to carry out illegal content risk assessment, adult user empowerment risk assessment relating to adult content, and children’s protection risk assessment content reporting, complaints procedures, record -keeping and investigation. No doubt codes of practice will be prepared.

This substantial role is added to Ofcom’s existing and extensive statutory obligations to regulate the broadcasting industry. This includes the allocation of channels, complaints in respect of broadcast material, enforcing impartiality and preventing the broadcast of harmful or offensive material.

A good example of Ofcom’s role is that within the BBC Complaints Framework. General and Editorial Complaints against the BBC, for example, in relation to breaches of the BBC charter obligations of impartiality, are dealt with in a three- stage procedure under the ‘BBC Complaints Framework’. Only after that procedure is concluded is the complainant permitted to complain to Ofcom, strangely under separate (Ofcom) guidelines and not by way of a formal appeal procedure . There is no further Ofcom appeal procedure. A dissatisfied complainant can only proceed by way of judicial review against Ofcom, a remedy which, it was recently held by the Administrative Court, does not exist against the BBC.

Recent complaints and actions taken by Ofcom (for example, the recent complaint against GB News over interviews by Esther McVey MP and Philip Davies MP of the Chancellor of the Exchequer, on the nepotistical grounds that he was also a Conservative MP) shows the fact that Ofcom is being increasingly embroiled in political matters. A further very recent example was the finding that GB News broke impartiality rules in an interview with Richard Tice on the basis that he was not ‘sufficiently challenged’. These matters should not be a matter for a regulating body. Ofcom is not and cannot, under its present constitution, act independently and judicially.

In a substantial forthcoming judicial review application against Ofcom, made on behalf of News-watch, the newspaper watching service, News-watch is seeking a declaration that in considering on appeal complaints made in respect of BBC Brexit coverage Ofcom has failed in its statutory duty to enforce BBC impartiality obligations. The difficulty from Ofcom’s stance is that when considering the merits of such complaints it is straying perilously close to political determination, which it is ill-equipped to handle.

Parliament, by requiring Ofcom to determine such matters under both its existing jurisdiction and its new OSA jurisdiction, is requiring a regulatory body with limited accountability to prepare codes of practice and conduct, issue substantial fines and prohibitions and essentially determine, as an unelected quango, policy.

It is surely concerning, as a number of commentators have pointed out, that decisions which are inevitably going to have a substantial effect on individuals, technology and media companies and not just the mega-companies, are to be governed by a regulator and not by Parliament. As recently put by Professor Murray of the LSE: ‘Are Ofcom going to be sufficiently accountable for what is going to have a huge impact on people’s lives? There is a real concern this is being done by the regulator and not by Parliament. Parliament is saying you have got to do this, we are giving you the framework and the powers, now go away and do it. This is alarming.’

In this writer’s view some form of readily accessible judicial control must now be exercised over Ofcom. Judicial Review in the High Court is burdensome, time-consuming and expensive. Moreover, the relief available is essentially an opportunity for a reconsideration rather than a determination of the core issue at stake.

Although additional tribunal jurisdiction should normally be discouraged, there is now a compelling case and no alternative for administrative decisions made by Ofcom as regulator to be subject to appeal by an appropriate tribunal with a further appeal to an appeal tribunal, both of which should be chaired by a qualified lawyer and not by a civil servant. A successful parallel is the Press Complaints jurisdiction.


 

Clive Thorne

Clive Thorne is a lawyer specialising in intellectual property including patents, copyright, trademarks, breaches of confidence, privacy and data law, as well as IT Litigation Arbitration and administrative law. He practises in the UK and internationally, with experience particularly in the Far East, and is admitted to practise in Hong Kong and Australia. He has handled disputes in all relevant courts including the High Court, IPEC, Court of Appeal, Privy Council and UK Supreme Court. He writes and lectures on IP law and recently co-authored A User's Guide to Copyright. (Seventh Edition).

 

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