We�ll get Paul Tavener�s thoughts on the substance of the new Broadcast Code later, but I thought I would start with my typical focus�procedures.

In the new Code, a certain amount of personal freedom is restricted�the freedom of an over-18 to watch BBFC R18 content over a broadcast platform. The justification for that restriction is:

Research commissioned by Ofcom indicates that some children in the current environment are able to access and use their parents�/carers� PIN numbers without these adults� knowledge.

Here�s the problem, Ofcom�s research�particularly the research used to justify the restriction of personal freedoms�was not subject to any review by the public or regulatees. The research was published contemporaneously with the new Code, not during the consultation process.

The PIN protection research, moreover, was only reviewed by Professor Patrick Barwise, someone who is not otherwise an expert in PIN protection systems and someone who claims to have read a draft report under a �tight deadline� with a different name (�Security Measures in Connection with the Broadcast of R18 Sex Material�). In any case, Barwise does not exactly offer a glowing endorsement. I�m not certain I would call that �peer review�.

For all practical purposes � Ofcom did not consult on the issue of PIN protection and thus did not consult at all on the rationale for its banning R18 content on the broadcast platform. That�s bad. It shows that�on matters of political sensitivity�the �evidence-based� regulator is selective in what evidence appears in the public record. This, in my opinion, harms Ofcom�s legitimacy to some extent; its decisions will be viewed as less technical and more political.

Your thoughts: blog@ofcomwatch.co.uk