Draft letter before action

Rather than make a new post this has been updated today, 24 January 2013 replacing the draft text with the actual text of the letter sent. 

Below is the text of a draft of a 'letter before action' that it is proposed to send to Ofcom.  
Below is the text of the letter sent to Ofcom. Under Court rules Ofcom is obliged to reply within 14 days stating whether or not it concedes the case in whole or in part. The core of the claim is that for technical reasons Ofcom/ATVOD had no lawful power to make rules requiring age verification. Neither is the requirement to pay ATVOD fees lawful. Therefore Ofcom acted unlawfully in issuing a direction that a website called "Jessica Pressley" should be shut down following findings that it had not 'notified', paid a fee and instituted age verification checks. This action is being pursued to protect a matter of principle, on the basis that everyone has a right to be able to receive information and ideas from any source without interference from a public authority. It isn't being pursued on behalf of the "Jessica Pressley" website, or any other private interest. "Jessica Pressley" has had no involvement with the bringing of this case.

Because the statutory requirements are unambiguous, Ofcom has (hopefully) very little room to make a defence. It is hoped therefore that Ofcom will concede the issue and reign in ATVOD without the matter needing to go to Court. But if it is necessary to apply for judicial review we are quietly confident (albeit in advance of a response from Ofcom) that we would succeed.

TEXT OF THE LETTER BEFORE ACTION

Dear Sirs,

Letter before Action in compliance with CPR 54 Pre-action Protocol for Judicial Review

We write to inform you that we intend to challenge Ofcom’s action in issuing a Direction under s.368K of the Communications Act 2003 against JP Media on 7 October 2013 (http://stakeholders.ofcom.org.uk/enforcement/video-on-demand-services/jessica-pressley-statement ) by which the right to freedom of expression of every internet user who might wish to receive information and ideas imparted by JP Media has been violated unlawfully.

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.

4.     The alleged wrongful conduct is, Ofcom issuing the Direction of 7 October 2013 to JP Media (the Direction) which suspended its right to provide the “Jessica Pressley” website or any other “on-demand programme service” (ODPS) under powers provided by s.368K of the CA. http://stakeholders.ofcom.org.uk/enforcement/video-on-demand-services/jessica-pressley-statement/

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.

http://www.theguardian.com/media/2013/nov/15/adult-video-on-demand-site-closed-jessica-pressley

http://www.atvod.co.uk/news-consultations/news-consultationsnews/pornographer-barred-from-providing-video-on-demand-service

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.

7. 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.

8. 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.”.

In 2010 Dr Guy Cumberbatch reviewed the academic evidence again (Annexed to Sexually Explicit Material and Video On Demand Services - A Report to DCMS by Ofcom  http://stakeholders.ofcom.org.uk/binaries/internet/explicit-material-vod.pdf ). The Executive summary reports,

“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.