The new Broadcasting code appears to be proving problematic for Ofcom. By the time the consultation over the code had drawn to a close in October last year more than 900 responses had been received. Although a large number of these responses were duplicates recieved from media pressure groups, a significant number raised a variety of important issues that have given Ofcom a real headache over how best to regulate broadcast content.

Last year the new code had a publication date pencilled in for late January, but that was before the extent of the controversy over the code emerged. Mondays Guardian reported that the revised publication date of early April has now moved out to late May, but checking in the last set of Ofcom executive board notes the phraseology has changed from �late spring� to �early summer� which would tend to indicate June or beyond and another tick of Ofcom�s four season clock (so no prizes for punctuality Ofcom).

Although much delayed, Ofcom certainly have been given difficult job to do in creating the new broadcasting code. The Government have weighed down the regulator with a wide range of requirements; some of which conflict and have then washed their hands of the matter. Ask the Depatment of Culture Media and Sport about some controversial aspect of broadcasting regulation and the chances are the reply will be �that�s a matter for Ofcom�.

So what exactly is the problem with the new code? Part of the reason for the current debate may rest on section 319(2)(a) of the Communications Act that states �that persons under the age of eighteen are protected;�. Ofcom have interpreted the absence of any qualification in this statement as being significant and an indication that further protective measures should be put in place.

One of the major sticking points is the watershed. The Guardian reported one source as saying: “Ensuring programmes have to be suitable for children under 15 has caused a big headache. I understand it’s still not resolved.” Ofcom appear to be suggesting that far from decreasing regulation they want to increase it by limiting what can be broadcast in the early evening and effectively introducing a second watershed in the late evening for more adult content.

All this seems to be at odds with Ofcom�s firm commitment to the importance of freedom of expression. In the introduction to the broadcasting code itself we were told that �4. Regulation should be transparent, accountable, proportionate, consistent and targeted only at cases where action is needed. That is a requirement of the Act but it is also part of the test Ofcom has to apply in restricting freedom of expression.� it is also clear that the intention of Parliament was for broadcasters and consumers to shoulder a greater responsibility not less.

The watershed is a device that is well known and understood by the public, Ofcom must tread very carefully in tampering with it least they create confusion in the mind of the public. As Ofcomwatch reported on 3rd October last year Aunty has a word in Nanny’s ear the BBC dealt a serious blow to Ofcom�s new draft code with it�s 82 page consultation response recommending changes to virtually every aspect of the code. Given that Ofcom is a very new organisation and that the BBC has a long history of dealing with broadcast regulation, Ofcom would be well advised to consider the advice that they have received very carefully indeed.

Ofcom like to remind us that a balance must be struck between harm and offence on one side and freedom of expression on the other. But the real problem is not in deciding that a balance must be struck, but in deciding where that balance must be struck and being consistent, proportionate and transparent when striking it.

The current situation certainly leaves a lot to be desired. It would seem that having conducted the obligatory public consultation phase, that Ofcom are now engaged in what might best be described as the horse-trading-with-the-broadcasters phase. Hopefully the final code will reflect Ofcom�s light touch deregulatory intent and put a greater emphasis on giving control back to citizens and consumers.

When it is finally published the new code will be seen by many as the definitive statement of where Ofcom stand on a wide range of issues and will (for better or worse) be the measure of how light the touch of Ofcom is and how good Ofcom are at regulating where content is concerned. Although seriously behind schedule, it is still possible for a properly balanced code to emerge provided those involved don�t get carried away with regulating us.