As reported last week I attended the Westminster Media Forum events on the 14th and 15th September to discuss the new Ofcom broadcasting code with a variety of groups including Government, Ofcom, broadcasters and other pressure groups. I was also provided with the unexpected opportunity to attend two separate informal meetings with two very different groups of individuals with very different agendas that proved to be of an even greater interest, as I will describe latter.

14th September Informal reception on the terrace of the House of Commons
170 people and no fixed agenda, but a chance to meet some of the players such as Sarah Thane, one of Ofcom�s Content and Standards Advisors. Unfortunately Sarah would not be drawn into any discussion concerning R18 proportionality, consistency or evidence based regulation, which was a shame, considering her job title. If there was going to be a time for Ofcom to explain themselves this was not it.

Perhaps the most memorable moment was being introduced to Lord Currie (Ofcom�s chairman) by Jocelyn Hay from the Voice of the Listener and Viewer. After explaining my interest in R18 his face was an absolute picture, appearing both delighted and yet aghast at the same time! He was however most courteous and did confirm my suspicion that the content board would not have the final say concerning the R18 issue. The content board will merely make a recommendation that the full Ofcom board would consider and either except or reject. The recommendation would however carry considerable weight. Needless to say like Sarah, Lord Currie was not at all keen to be drawn into any discussion concerning proportionality, consistency or evidence based regulation which was also a shame considering his job title.

I was also fortunate enough to meet Luke Gibbs who also present and posts extensively on these pages.

15th September Consultation Seminar on the proposed broadcasting code at
One Great George Street
Three separate discussion groups each on a separate topic. The one of interest to me was �protecting vulnerable groups Ofcom or Off switch?�
Tim Suter (Ofcom�s Partner for content and standards) introduced the session, but unfortunately right from the start he ended any final hopes that I had that there might be any discussion over the real issues by saying that he would not be discussing �individual points� - so no chance of finding any answers to the question concerning proportionality, consistency or evidence based regulation then. After a very carefully worded introduction he handed over to the speakers:

John Beyer from Media Watch
Paul Tavener from Ofwatch
Daniel Owen, Director of regulatory and public affairs, Chrysalis Radio
Ian McBride, director of compliance ITV

John Beyer took considerably more than his allotted 3 minutes to deliver his usual Mediawatch outrage arguments, Ian McBride made a very articulate speech in defence of freedom of expression and my short speech also appeared to go down rather well.

Following the speeches there was a panel question and answer session with much debate, but following the main meeting there were some unofficial meetings with various agents of various organisations from which an alternative picture of what is happening has emerged.

15th September Other meetings
So here is the alternative view on what may happen for which I can provide no specific references or guarantees other than to say the sources are reliable.

After the 5th October the standards consultation ends and the content board will �consider� the matter for a few more months, but there are a number of problems. Firstly several members of the content board will refuse to agree to R18 regardless of any arguments made by anyone under any circumstances and a number of others whilst not ruling it out, are unlikely to be sympathetic. It is possible that common sense will prevail, but unlikely. The fact that the Daily Mail published photos of the BBFC people responsible for the R18 decision in 2000 is also unlikely to spur them on, so it is entirely likely that the content board will make its final recommendation that R18 remain prohibited.

The Ofcom board will then be faced with a very difficult dilemma. Do they accept the recommendation or go against it? If they are brave and honest they will override the content board, allow R18 and will undoubtedly incur the wrath of the Daily Mail, but on the other hand if they prohibit it they risk damaging the reputation of Ofcom. It is not at all clear what they will do. They might well be forced to concede and lift the ban after taking legal advice.

Because if they did decide in favour of a prohibition it was made very clear to me that such action would result in a very substantial legal action against them. So this is where the real test of proportionality and consistency may occur. Considering the protective measures that are now possible for digital television, the total absence of any evidence of harm already admitted by Ofcom and Ofcom�s legal duty to apply consistent and proportionate regulation at all times (Communications Act 3/3/a) I would not like to have to fight their legal battle, in fact they would be in a very difficult situation and would probably loose.

If the courts decided in favour of R18, in this circumstance, which seems very likely, the Government and both Ofcom boards could probably claim that it wasn�t their fault, thus avoiding blame. Cynical, yes, but this is politics. Such an eventuality would of course destroy any credibility and integrity that the content board had in the eyes of many. Perhaps this is a good enough reason to avoid going down this route in the first place.

Yet perhaps I am being unkind. The consultation is not even over yet and it is still entirely possible that Ofcom may do the right thing, but only time will tell.