Yesterday Ofcom announced its new draft standards code for public consultation, with a view to its publication in its final form at the end of January 2005. The consultation covers a very wide area of harm, offence, privacy and fairness issues in its 146 pages, but I would like to particularly focus on issues of freedom of expression, as they appear to be particularly in need of discussion in this instance.

It is quite clear from the text that the consultation introductory section and the Regulatory Impact Assessment were written by different people with very different ideas concerning the way in which Ofcom should be dealing with the balance between freedom of expression and protection from harm.

The introductory section (3) starts with a declaration of the importance of freedom of expression and a very impressive reassertion of the fundamental principles that Ofcom have used in drawing up the code.

In particular �all regulation in the proposed code must be proscribed by law and necessary in a democratic society. Unnecessary regulation should not be in this code. Rules cannot be made at the whim of a regulator�. And �Regulation should be transparent, accountable, proportionate, consistent and targeted only at cases where action is needed. That is the requirement of the Act but it is also part of the test Ofcom has to apply in restricting freedom of expression�.

Fine words which are consistent with Ofcom�s previous stance concerning these matters and giving the distinct impression that Ofcom have started with a fresh approach based on the law and not on the codes of the legacy regulators. But when we look further into the consultation document at the Regulatory impact Assessment buried towards the end in section 14, we find that a very different story emerges with the following �recommendation� concerning sexually explicit content on adult subscription services:

�The status quo will prevail regarding a prohibition on R18s and R18 standard material and also on a 22.00 start for �adult� sex material plus the other protections currently in place regarding �adult� sex material. It will only change if it can be established that there are sufficient safeguards (technical or otherwise) to protect persons under eighteen, and ensure that adults who do not wish to see such material are adequately protected from harm and offence.�

This is not a recommendation at all it�s a declaration of policy; a recommendation would use the word �should� rather than �will�. It is easy to be in favour of freedom of expression when talking in broad terms or where non-contentious material is involved, but no matter how many good words are put at the front end of the code; if they are not applied at the back of the code then they are worthless.

There are two different approaches that can be applied in these cases �why should content be prohibited?� and �why should content be permitted?� It is now clear that Ofcom (or at least some elements at Ofcom) have adopted the second approach in this regulatory impact assessment. Despite recognising else where that there is no evidence of any harm caused by R18 content they choose a total prohibition as their �recommendation� just to be on the safe side in total contradiction to the statements made in the introduction.

Of even more concern is that this should happen in a situation where the said R18 content is already legally available in the home on unencrypted and non PIN protected video tape. It would appear that in addition to disregarding the principle of free expression in this matter that consideration of consistency with the BBFC have also disappeared along with any idea of an �evidence based approach�. What is left is simply the old ITC dogma about sexually explicit content.

Fortunately this code is only in draft form and there is every chance that this ill thought out assessment can be rewritten. Of more concern is the great disparity between principle and practice. It might almost be said that the right hand doesn�t know what the left hand is doing.

A more detailed analysis of this issue including some other worrying aspects will be posted at the author�s website www.ofwatch.org.uk within the next few days.