Progress update 3 - the difficult decision to discontinue

Very reluctantly, we felt it necessary to stop short of filing this claim with regards to the Jessica Pressley ban. Bringing legal proceedings is a serious matter which carries risks of heavy costs or of producing a counterproductive result. In this case, for relatively complicated technical reasons, we decided at the last minute to draw back from issuing the claim. This doesn't mean that we've abandoned the argument. It just means that on the particular case of the Jessica Pressley banning order we won't be going to Court. We are still looking for an opportunity to bring a challenge to the DCMS/Ofcom/ATVOD's unlawful arrogation of powers that only belong to Parliament and thereby to interfere with liberty of expression on the Internet. 

The issues in the case


Time limit

To apply for permission to seek judicial review a claimant must bring the claim promptly, and in any case, not later than 3 months after the decision was made of which review is sought. In this case the decision complained about was made on 7 October. That would have made 7 January the latest possible date to bring a claim. However the decision we sought to challenge was made behind closed doors and only communicated to JP Media who were silenced by that order. For that reason it was only when Ofcom announced their action publicly on 15 November 2013, through the Ofcom/ATVOD websites, that the Ofcom 'Direction' against JP Media could be known by any other interested party. For that reason we contended that the 3 month time limit expired on 15 February 2014.

Standing

Ofcom also objected that we did not have standing to bring a claim. Under the Human Rights Act 1998 one can only bring a claim relying on an interference with a European Convention Right if one can show that the claimant would have standing (known as "victim status" under the Convention) to bring a claim before the ECHR Court. As it happens we had an individual who was prepared to be the claimant in the case. He could demonstrate that he had successfully visited the Jessica Pressley site in early October 2013 and had tried to visit it again in mid November 2013 but was unable to access it then. Ofcom cannot deny that he was prevented on the second occasion by their action in 'directing' that the website should close. Obviously his Article 10 Right to receive ideas and information imparted by Jessica Pressley was interfered with by Ofcom. That he had the necessary "victim status" under Article 10 is clearly shown by the case of Open Door and Dublin Well Woman v Ireland, (1992) Application no. 14234/88; 14235/88.

All that is then left is the substantive case. And Ofcom do not have an answer to that. Because there is no answer. There is no answer that would survive any scrutiny. And Ofcom know it!

The decision not to proceed

However as regards our challenge, we had three days following receipt of Ofcom's second reply to file our claim. 15 February was a Saturday so effectively we had two. There was still a lot of work to finish preparing and printing the bundles to file and serve the claim. We were, at the same time, deeply concentrating on the legal argument. Ofcom's objection as to 'standing' did not worry us on the argument alone. Although we would have to face convincing the Court, and it was concerning that we still did not have proper representation. So our claimant would be filing the claim as a litigant in person until we could find representation on terms we could afford (preferably pro bono). However the issue which finally caused us to draw back was the question of 'time to bring the claim'. Whilst being relatively confident that our argument on this ought to prevail. This has been a very heavily litigated issue. There is a large body of case law on this. Judges have in the past complained about having to sit through four days of argument on purely that issue. We felt that there was a high risk that the case would get bogged down by a lot of expensively funded argument on that issue. We were concerned that the fundamental issues might be lost sight of. That we would be made to appear as busy bodies involving ourselves in issues that weren't of direct concern to ourselves and lose the sympathy of the Court. Moreover by any calculation the case would be filed, if it were to be, only barely in time.

It was a difficult decision. One that perhaps we might have made differently. The Jessica Pressley case had lots of ingredients that made it a good one to fight. But there we are. Thank you all for your interest and expressions of support. 

The way forward. - A new challenge

However, although we cannot proceed with this one we have not lost heart. We are still actively seeking a case to take forward with the benefit of the work already done and better organisation. We are particularly seeking to challenge ATVOD on the narrow issue of the lawfulness of ATVOD fees. It's a simple issue. Parliament was deceived in pushing through s.368NA of the Communications Act. The Joint Committee on Delegated Legislation reported the measure in 2010 as of dubious vires and for using an unexpected procedure to implement it. ATVOD/Ofcom would have no hope of enforcing any action to require payment, nor of defending a claim for restitution of fees paid previously. That's right. Not only can no one lawfully be obliged to pay ATVOD fees, but any one who has paid any in the past has a right at common law to restitution with interest, under the principle established in Woolwich Equitable Building Society -v- Inland Revenue Commissioners (2) [1993] AC 70. 

If ATVOD is challenged on this issue and a Court ruled that s.368NA is ultra vires, ATVOD is immediately insolvent. That would dispose of them in one step. In as much as Ofcom would be left with responsibility for day to day regulation under Part 4A of the Act, they would be compelled, without new funds, to limit themselves to regulation of television on-demand, and would simply not be able to afford to stray into unlawful attempts to censor the Internet. 

Progress catchup 2 - Analysis and reply

This is what we made of the Ofcom response posted in the previous entry.

Ofcom refutes the claim on two grounds. First, on the issue of 'standing' to bring a claim, and second, on the issue of whether the claim would be brought within the permitted time limit. Both of these considerations are very important, and would be sufficient in themselves to enable the Court to dismiss the claim if it agreed with these submissions. On the other hand these issues are arguable either way, and we had given a lot of thought to both. We would not have begun to consider a claim unless we were confident that our argument on these issues was far stronger than any counter argument. We'll return to these technical questions  in slightly more depth in the next blog entry. 

However, what is more striking about Ofcom's response is that it completely fails to address the substantive elements of the proposed claim. It merely dismisses it as without merit and recites a litany of the provisions of the Communications Act as if that was any sort of answer to the issues raised. We therefore considered it appropriate to reply briefly, putting the two black and white issues to them again. Ofcom would be forced to argue against these issues if they were to make a defence. Merely dismissing them as not worth responding to would hardly cut any mustard in Court and pre-action protocol requires that they respond.

We wrote in reply:

"With regard to the substance of the claim, your reply makes one reference to what is described as “...various proposed challenges to primary legislation as made by Parliament”. In fact the issues lie with secondary legislation, specifically the Audiovisual Media Services Regulations 2009 & 2010 (si. 2009/2979 & si. 2010/419). We contend that the regulations confer no power on ATVOD or Ofcom to make rules or requirements that might be breached. One cannot breach a requirement to employ “CAC systems”, for instance, unless one is bound to comply with such a requirement. Accordingly, we will claim, Ofcom had no power to direct that an alleged ‘service provider’ be sanctioned for failing to comply with any order, rule, regulation or subordinate instrument that ATVOD had no power to make. See paragraph 14 of the letter before action. 

Also we contend that the Regulations which became s.368NA, and s.368D(3)(za), which Ofcom found JP Media to have contravened in its notice of 23 September, are void and always were void. This is so, we will claim, because the Secretary of State did not have power to impose taxation as delegated legislation under the enabling Act. Fees required to be paid to Ofcom or the appropriate regulatory authority are taxation meeting those principles defined in Lower Mainland Dairy Products Sales Adjustment Committee v Crystal Dairy, Limited (British Columbia) [1932] UKPC 70; [1933] AC 168 . See paragraph 12 of the letter before action. 

It is the strength and simplicity of these arguments that have given us confidence to consider applying for judicial review, if however you are aware of something that we have overlooked. It would save everyone’s time and effort if we had a chance to consider any objection before we proceed. Time is now very close by our estimation at least, so your very prompt response indicating your position on these issues would be desirable. If you feel a purpose would be served by more time, we would be prepared to issue proceedings and apply for a stay for a period to allow further discussion."

Ofcom replied within two days:

"As stated in our response of 7 February 2014 to your letter before claim, Ofcom considers that you do not have standing to bring a claim, there is no merit in your proposed claim, and in any event, you are out of time to do so. As previously explained, we would seek to recover our costs in relation to any such claim, including the cost of acknowledging service."

Such a reply is not really very clever. It might give the writer some emotional satisfaction, but it would be likely to be viewed by the Court as contrary to the spirit of pre-action protocol and would most likely undermine any case they might wish to make about recovering their costs.  

Of course, what is much more damaging to their defence is that it is perfectly clear that they do not have an answer to the substantive case. And the effect of their refusal to comment is to advertise the fact. They are quite capable and willing to outline a defence on the issues of 'locus standi' and 'time limits', so why fail completely to address the 'ultra vires' issues? Now is the time that they need to indicate at least the basis of any defence they will rely on later.  

Progress catchup 1 - update on the challenge to Ofcom/ATVOD

Ofcom were given until 7 February to reply. At 4.30 pm on the 7th they e-mailed their reply. This is the response letter we received posted in full below as jpeg images. 

In summary: 
                     Ofcom first set out the history of the case in terms of ATVOD's and Ofcom's procedure, then they responded to the grounds of claim as put to them, before replying to the request for information and documents and indicating that they would oppose an application for a protected costs order. 

Below is copied the important bit - their response to the grounds to bring the claim.

" Ofcom's response to the proposed claim

Ofcom considers that there is no merit in the proposed grounds of challenge advanced in your letter dated 24 January 2013.

Standing

In order to bring a claim for judicial review, a party must have "sufficient interest in the matter to which the application relates". Ofcom does not consider that Some Common Sense, which you describe as "an ad hoc group of concerned individuals and groups" has sufficient interest to bring an application. Even more so, we note that your group does not appear to include either the person to whom Ofcom's direction was addressed (i.e. the Service Provider) nor the person featuring in the Service (i.e. Jessica Pressley).

Time for bringing a claim

Rule 54.5 of the CPR requires that a claim must be brought "(a) promptly; and (b) in any event not later than 3 months after the grounds to make the claim first arose." Neither of these requirements have been satisfied.

Given that Ofcom's direction was given on 7 October 2013, the three month period for bringing a claim expired on 7 January 2014. That the proposed Claimants may not have been aware of Ofcom's direction until it was published on its website on 15 November 2013 is not relevant (and merely emphasises that the proposed Claimants do not have sufficient interest in the matter to bring a claim).

Substantive proposed claim

Moreover, any application for judicial review would be without merit. It is not clear from your letter exactly what are your proposed grounds for review. However, they appear primarily to relate to the compatibility of Ofcom's decision with Article 10 of the European Convention on Human Rights.

Ofcom's decision is not an unlawful interference with Some Common Sense's freedom of expression. Article 10 states that the right to freedom of expression may be subject to restrictions as are prescribed by law and are necessary in a democratic society, inter alia, for the protection of health and morals, and Ofcom's decision was compatible with this.

Under section 368(c) of the Act, both Ofcom and ATVOD (as the appropriate designated authority) are under a duty "to take such steps as appear to them best calculated to secure that every provider of an on-demand programme service complies with the requirements of section 368D". Section 368D in turn requires providers of on-demand programme services to comply with the requirements of sections 368E to 368H and these include, of particular relevance to the present case, a requirement under section 368E(2) that "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."

Ofcom was clearly applying the statutory scheme prescribed by law, which Parliament has determined is necessary in a democratic society for the protection of under-eighteens from harmful material.

Ofcom does not accept your assertion that it has incorrectly applied section 368A(1) in finding that the Service was an ODPS, or that it incorrectly applied section 368E(2) in finding that the Service "might seriously impair the physical,mental or moral development of persons under the age  of eighteen". In relation to the first point, we note that the Service Provider had an opportunity to appeal ATVOD's decision that it was an ODPS to Ofcom and did not do so. On the secondpoint, Ofcom has made numerous findings in relation to R!* material, and it is absurd to suggest that the Service's own "conditions of entry" would be enough to prevent minors from viewing the R18 material."