Dear Sirs,
Letter
before Action in
compliance with CPR 54 Pre-action Protocol for Judicial Review
We have set out our proposed grounds of claim
below. The purpose of this letter is to comply with the CPR 54 Judicial Review
Pre-Action Protocol.
We also want to give Ofcom an opportunity to
reconsider its position and respond in a way that either makes the proposed
claim unnecessary, or narrows what is in dispute, or otherwise makes Ofcom’s
position clearer.
A response is requested by 7 February 2014.
1.
‘Some Common Sense’ is an ad hoc group of concerned
individuals and groups. The proposed claimant will be a representative person
or persons who will say that their rights to receive information and
ideas on the world wide web as guaranteed by article 10 (art.10) of the European Convention of Human Rights (ECHR) as scheduled to the Human Rights Act 1998 (the
HRA) have been unlawfully interfered with by
Ofcom.
2.
The proposed defendant is the Office of Communications
(Ofcom). Ofcom is a public
authority within the meaning of section 6 of the HRA. Ofcom’s implementation of the
provisions of the Communications Act 2003 (the CA) is susceptible to judicial review
if it unjustifiably interferes with the human rights of those affected or is
otherwise unlawful.
3.
Interested parties would include
a.
ATVOD, of 27
Sheet Street, Windsor, Berkshire, SL4 1BN
b.
JP Media, of Flat
7, Water House,
Porters Way,
Polegate,
BN26 6RJ (last known address)
c.
Secretary of State for Culture Media and Sport, DCMS, 2-4 Cockspur Street
London
SW1Y 5DH
Copies of this letter before
action have been sent to each of them for their information.
5.
This became known to the claimants when ATVOD published a
press release which was reported in the Guardian Newspaper on 15 November 2013
and was published on the ATVOD website the same day.
6.
The remedies sought would be
a.
the quashing of Ofcom’s Direction of 7 October 2013 against JP
Media.
b.
a declaration that ATVOD and Ofcom had exceeded their powers
under Part 4A of the CA in respect of
the making and enforcement of rules and requirements beyond the provisions of
the Act itself.
c.
a declaration that s.368NA (and consequent provisions) of the
CA is void ab initio.
- The Direction
suppressing the Jessica Pressley website was an interference with the
claimants’ art.10 right to
freedom of expression. It was unlawful unless the interference —
a.
was made for one of the legitimate purposes contained in the
second paragraph of art.10 ECHR (art.10(2))
and
b.
was prescribed by law
and
c.
was necessary in a democratic state.
- The burden of justifying an interference with the
exercise of a Convention right such as that protected by art.10 lies on the public authority which has
interfered with such exercise, in this case Ofcom.
Prescribed by law
9.
The Direction followed
from Determinations by ATVOD that the Jessica Pressley website —
a.
was an ODPS determined
not to have given prior notification (Rule 1)
b.
had not paid a fee (Rule 4)
c.
and had not implemented stipulations contained in the ATVOD Rules
& Guidance that it must employ a so called “CAC
System” relating to age verification. (Rule
11)
10.
ATVOD’s Rules
1 and 4 Determination reads:
“... ATVOD’s determination
is that Jessica Pressley is an ODPS in respect of which a notification has not
been given and in respect of which a fee has not been paid, and that therefore
between 18 March 2013 and 24 June 2013 J P Media was in breach of Rule 1 and
Rule 4 in relation to the service Jessica Pressley. These breaches constitute
an infringement of the statutory requirement set out in section 368BA
(Requirement to notify an ODPS) and 368D(3)(za) (Requirement to pay a fee) of
the Act.”
ATVOD Rule 1
11.
Section 368A(1)(a) of the CA defines an ODPS.
For the purposes of this Act, a service is
an “on-demand programme service”
if—
(a) its principal purpose is the provision
of programmes the form and content of which are comparable to the form and
content of programmes normally included in television programme services
a.
The Jessica Pressley website was not an
ODPS as defined by section 368A(1)(a). Referring to the videos on the website, ATVOD
determined that the website was an ODPS because, “Although
these programmes do not feature credits to cast and crew, they are directly
comparable in this and other relevant respects with programmes shown on some
broadcast adult channels”. Can the absence of programme credits be evidence that the
Jessica Pressley video content was comparable to television broadcasts? This
might seem a rather strange finding until you appreciate that Ofcom had
previously found that the absence of programme credits was indicative of a video
not being comparable to television. (
http://stakeholders.ofcom.org.uk/binaries/enforcement/vod-services/top-gear-youtube-decision.pdf
)
However taking account of
this, the finding seems not merely strange but strangely perverse. The truth is
that the Jessica Pressley website was simply an internet website. It didn’t
carry television material. It wasn’t delivering television content through
television on-demand platforms or delivery systems. The videos featured no
well-known television actors, they were short, without voiceover, without
incidental music, with rudimentary sound recording, with the barest narrative
and dialogue, consisting of substantially one continuous take (in contrast with
television productions which are constructed through film editing so that shots
are typically only two or three seconds in length). There were no credits to
cast and crew, not least because probably the cast was the crew and consisted
of a couple of persons with a camcorder. It was not television of any sort. It
was a website on the world wide web accessible through the internet. To stretch
definitions to argue otherwise is absurd. One might as well say that a village
cricket match is television because the Ashes series is televised. The website
was not an
ODPS that a user would expect
to be regulated as television on-demand. And if it wasn’t an ODPS Ofcom had no authority to issue the
Direction, which was not prescribed by law.
b.
Alternatively, even if it were found to have been an ODPS, s.368(1)(a) of the CA is not formulated with sufficient precision to
enable JP Media, or ATVOD, or Ofcom, or anyone else, to foresee with a
reasonable degree of certainty whether a website might be an ODPS or not. The criteria by which Ofcom or ATVOD might
determine a website to be an ODPS
can be variously either so broad or so finely drawn as to be arbitrary,
possibly relying excessively on an interpretation the word “dynamic” in the
last sentence of recital 17 of Directive 2007/65/EC (recital 24
Directive 2010/13/EU) at the expense of the
recital as a whole. Thereby Ofcom/ATVOD have introduced new criteria that could
not have been foreseen on the basis of the text of s.368A(1)(a) of the CA.
And accordingly ATVOD’s Determination and
Ofcom’s enforcement Direction
were not prescribed by law. (c.f.Gaweda v Poland, app. 26229/95,
[2002] ECHR 301, (2004) 39 EHRR 4
ATVOD Rule 4
12.
Even if the website were an ODPS, in respect of which a fee may not have been paid, the Secretary of
State did not have power to amend the CA by the Audiovisual Media Services Regulations (AVMSR) 2010 (si.2010/419) to insert s.368NA under powers provided by s.2(2)
of the European Communities Act 1972 (ECA) subject to Schedule 2
of the ECA, because s.1(1)(a) of schedule
2 of the ECA excludes power –
(a) to make any provision imposing or
increasing taxation
The requirement to pay a licence fee to a
public body is taxation. Therefore s.368NA of the CA as amended is void ab initio.
Therefore ATVOD’s rule 4 is unlawful, and the requirement to pay a fee was not prescribed
by law.
ATVOD Rule 11
13.
ATVOD’s Rule 11 Determination
reads:
“ATVOD has determined that
between 18 March 2013 and 24 June 2013, JP Media was committing two breaches of
Rule 11 (Harmful Material: Protection of the Under-18’s) in relation to the service
Jessica Pressley
Rule 11 requires that ‘R18’ equivalent
material should only be made available in on demand programme services in a
manner which secures that persons under the age of eighteen will not normally
see or hear it.
(1)
This service has breached Rule 11 in relation to the
free content on the service in that a person under the age of eighteen could
easily access ‘R18’ equivalent
material, including still images and video, unprotected by any form of CAC
System or age verification
(2)
The service provider has breached Rule 11 in failing to
have in place an effective CAC System which verified that the user was aged
eighteen or over at the point of registration or access by the mandatory use of
technical tools for age verification.
Each breach constitutes an
infringement of the statutory requirement set out in section 368E(2) of the
Communications Act 2003”
14.
But even if Jessica Pressley were an ODPS regulated by ATVOD and Ofcom. And whereas it may not
have put in place so called CAC Systems to the specification required by ATVOD, which was determined to have
been “two breaches” of ATVOD’s Rules
& Guidance, ATVOD had no power to
require compliance with such Rules & Guidance, or to determine breaches of them. ATVOD has no
power to enforce anything beyond the requirements of the Act itself because it
was designated by Ofcom to co-regulate the provisions of Part 4A of the CA which were created by the AVMSRs 2009
& 2010 (si.2009/2979 & si.2010/419) under powers provided by
s.2(2) of the ECA subject to Schedule 2
of the ECA. However, s.1(1)(c) of
schedule 2 of the ECA denies
power –
(c) to confer any power to legislate by
means of orders, rules, regulations or other subordinate instrument, other than
rules of procedure for any court or tribunal
Therefore nothing introduced into the CA by the AVMSRs 2009 and 2010 could grant Ofcom or
ATVOD power to make binding ATVOD Rules & Guidance, or to determine that there had
been breaches of
them said to require employment of CAC Systems, or to control access by the mandatory use
of technical tools for age verification, whether under a precautionary approach or any other approach. Therefore
ATVOD’s determination, and its enforcement notice, that there had been a breach
of its Rule 11
was ultra vires. And thus since Ofcom’s Direction followed directly from ATVOD’s Determinations and Enforcement
Notification, the Direction was also not prescribed by law.
Necessary to a legitimate purpose
15.
Further the interference was either not made for a legitimate
purpose, or was not necessary to achieve that purpose, insofar as it was
intended to uphold the requirement of s.368E(2) of the CA which states—
(2)
If an on-demand programme service contains material which might
seriously impair the physical, mental or moral development of persons under the
age of eighteen, the material must be made available in a manner which secures
that such persons will not normally see or hear it.
In contrast ATVOD’s Rule 11 as cited in ATVOD’s determination
“ requires that ‘R18’ equivalent material
should only be made available in on demand programme services in a manner which
secures that persons under the age of eighteen will not normally see or hear it
Section 368E(2) however contains no mention of
“R18 equivalent material”. ATVOD and Ofcom as the appropriate authorities are constrained to
enforce only the requirements of the Act, which require restrictions only
for “material which might
seriously impair ”.
Ofcom itself has commissioned two
reviews of all the available academic research into the question of whether
sexually explicit expression might harm young persons in 2005 and again in
2010. In the 2005 review (R18 material: its potential impact on people under
18, http://stakeholders.ofcom.org.uk/binaries/research/radio-research/r18.pdf ), Ellen Helsper found in answer to
the question,
“Might R18 material seriously impair the
development of minors?”
“From the research reviewed in this report
the answer would be no.”.
“Guy Cumberbatch’s main conclusions are
consistent with the conclusions of the 2005 review”.
The Jessica Pressley site, although sexually explicit,
and possibly “R18 equivalent”, could not be said to contain material which might seriously impair
the development of
persons under eighteen. Neither Ofcom nor ATVOD produced any evidence that
anything on the website in question might impair the development of young
persons in any degree. And if the complaint is that it contained R18
equivalent material,
Ofcom’s own research fails to support the idea that such material might
seriously impair
etc. Therefore the interference was either unnecessary or not made for a
legitimate purpose such as for the protection of health or morals.
16.
Moreover,
access to the Jessica Pressley website could only be effected via a webpage
requiring an act signifying acceptance of conditions of entry which stated.
“By proceeding you affirm that you are at
least 18 years or older, and that you are voluntarily choosing to view and
access such sexually-explicit images and content for your own personal use.”
The website clearly was not intended to be
viewed by persons under eighteen at all, and would not normally be viewed by
such persons. Young persons could not normally see it by accident or
chance. They might only do so by exceptionally affirming falsely that
they satisfied the conditions of entry. There is no evidence that any person
under eighteen ever saw the Jessica Pressley website, and such persons could
not normally do so.
17.
Ofcom has entirely suppressed the Jessica Pressley website,
and disproportionately prohibited the person or persons represented by JP Media
indefinitely from posting anything to the internet which might arbitrarily be
held to be an ODPS. Ofcom must
convincingly establish that these measures were necessary and proportionate to
a legitimate aim. The claimants believe that Ofcom cannot do so. Neither were
they prescribed by law. Therefore there has been an unwarranted violation of
the claimants’ fundamental right to receive information and ideas imparted by
JP Media or Jessica Pressley.
